Guest article by Shajib Mahmood Alam, Barrister of the Honourable Society of Lincoln’s Inn (May 2012).
Abstract
This paper analyses the role of the judiciary in medical negligence litigation, taking as its starting point the observation by Yong Pung How CJ in the Singaporean Court of Appeal that “a judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement.”
The paper examines:
- Standard of care in the UK — the traditional Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) and its requirement that a doctor is not negligent if his conduct is endorsed by a responsible body of medical opinion.
- Bolam continued — arguments that the test strikes the right balance between doctors, patients and society, including the risk of “defensive medicine” if courts displace expert opinion.
- Bolitho v City & Hackney Health Authority [1998] A.C. 232 — the House of Lords decision permitting courts to reject expert medical opinion that cannot withstand logical analysis, and its impact on subsequent cases such as Penney v East Kent Health Authority and Marriot v West Midlands Health Authority.
- Should the judges take a back seat? — debating whether judges should be the final arbiters of medical practice, and the limits of judicial competence in evaluating contested clinical decisions.
Conclusion
A balanced approach is needed. Common medical practice that is accepted by a body of medical opinion should generally not be held negligent in law, but courts must retain the power to reject expert opinion that fails to withstand logical analysis. Judicial activism that risks distorting the development of medicine should be avoided — but neither should the medical profession be placed beyond the law.
The full essay, with case citations and footnote references to academic sources, is available on request from S Hossain & Associates.
Copyright © Shajib Mahmood Alam 2012.