Open UKLSR Volume 1(2) - Uklsa

UK Law Students’ Review – 2013 – Volume 1, Issue 2
oxygen therapy administered to a premature infant, resulting in blindness. 74 The
difference in judgements reached reveals an apparent dichotomy of opinion in the
skills expected of junior doctors.
Bolitho paved the way for development in the law related to medical negligence by no
longer endorsing a medical viewpoint simply because a medical expert regarded a
course of action, no matter how illogical, as an option, but still Lord Browne-
Wilkinson held that ‘it will very seldom be right for a judge to reach the conclusion
that views genuinely held by a competent medical expert are unreasonable. The
assessment of medical risks and benefits is a matter of clinical judgement which a
judge would not normally be able to make without expert evidence.’ 75 He felt that a
judge’s position was to decide when a course of action could not be logically
supported by the viewpoint of an expert and would, therefore, not provide a bulwark
against a charge of alleged medical negligence.
IV – Bolitho vs Bolam
Bolam traversed the world influencing the standard of care expected of all
professionals but notably that expected of doctors. Increasingly, though, its use and
validity were questioned, leading to Bolitho which established that the judiciary could
question the actions of clinicians that were patently illogical despite assertions by
colleagues to the contrary. Bolitho did much to challenge Bolam. Importantly, it
allowed the courts to challenge so-called expert witnesses and the apparent absurdity
of some of the clinical decisions. For the first time the House of Lords criticised the
medical profession which post-Bolam could, in some cases, seem to have got away
‘with murder’. The House also rejected the notion that a doctor should escape liability
for their actions simply because their colleagues would have acted in a like manner. In
allowing a colleague to state that he would have acted in a similar manner given a
comparable clinical scenario, a substantial benefit was awarded to those facing an
allegation of clinical negligence and assured failure of the claim against them in most
instances.
The whole premise of Bolam depended upon the different treatment options available
to clinicians and the concept that a ‘reasonable man’ would have acted in the same
way, but Bolitho challenged this by allowing the court to choose between two
opinions proffered. Significantly Lord Browne-Wilkinson challenged the principle
enunciated in Bolam of the ‘responsible, reasonable and respectable’ medical man and
stated that the use of this terminology should ‘show that the court has to be satisfied
that the exponents of the body of opinion relied on can demonstrate that such opinion
has a logical basis’. 76 He felt that before accepting such opinions, he must be satisfied
that the clinical position was one of strength founded on good medicine. It was simply
not good enough for a court to accept the views of one body of experts as opposed to
74 This was an extremely harsh judgement as premature babies are prone to multiple ophthalmic
problems including that of inadequate development of the eye. It is true that the administration of
100% oxygen does result in retrolental fibrodysplasia which is a cause of blindness in the premature,
but in this case other factors could have contributed to the child’s blindness.
75 [1997] 4 All ER 771 at 780.
76 [1997] 4 All ER 771 at 779.
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