Medical Negligence: Should judges take a back row seat?

Shajib Mahmood Alam

Barrister of the Hon’ble Society of Lincoln’s Inn [May 2012]

Preamble – A general overview

The very nature of professional services involves the exercise of skills, and the possession of a body of knowledge, not shared by the public at large.1 Brazier & Miola argues that judges are not qualified to make professional judgements on the practices of other learned professionals.2 Foster points out that every clinical egligence case involves expert evidence, which at trial will necessarily involve technical language and concepts.3 Singaporean author Kian observes that, in recent times, there has been an increase in judicial activity in the field of professional negligence for physicians on the standard of medical care in England and other common law jurisdictions like Australia,

1 Brazier, M. & Miola, J., (2000). “Bye-Bye Bolam: A Medical Litigation Revolution?”. Medical Law Review. 8 (1), p.87 2 ibid. 3 Foster, C., (2007). MEDICAL MISTAKES: Key Medical Issues in Clinical Negligence Cases. 1st ed. London, UK: Claerhout Publishing. p.02

Singapore and Malaysia.4 The quote in question5 was delivered by Yong Pung How CJ in the famous Singaporean Court of Appeal decision of Dr Khoo James and Another v Gunpathy6. The aim of this aper is to analyse How CJ’s words 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”7. Furthermore, he voiced his concern that, the lawyer-judge in ‘playing doctor’ at the frontiers of medical science might distort or even hamper its proper development.8 Earlier in his decision, CJ How observed that, “…at the heart of the Bolam test is the recognition that judicial wisdom has its limits”.9 Whilst it is possible to carry out a detailed analysis of the comments mentioned above, that is not however the primary aim of this research. The first part of this essay deals with the various criticisms and controversies regarding the use of the very infamous and influential Bolam test in the area of medical negligence litigation. The second part of this essay deals with the idea that judges, and not the medical professionals, are the final arbiter in a medical negligence lawsuit. 4 Kian, C.T.S., (2003). “Interpretation of the Bolam Test in the Standard of Medical Care: Impact of the Gunapathy case and Beyond”. Professional Negligence. 19 (2), p.384 5 “A judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement.” 6 [2002] 2 SLR 414; [2002] SGCA 25 7 ibid. per CJ Yong Pung How at 144 8 ibid. 9 ibid.

Part I – Negligence and Expert Opinion

1.1 Standard of Care in the UK- A General Overview

Medical negligence, like all other areas of negligence, is concerned with the determination of whether the defendant came up to the standard of care he owes to the plaintiff: whether the doctor achieved the standard of care he owes to the patient.10 A patient can make a claim in medical negligence if he or she believes they have suffered damage because of inadequate or substandard medical treatment.11 In principle, the law holds physicians and other health care providers liable only for that subset of iatrogenic injury that results from professional negligence.12

1.2 Bolam Revisited

The traditional test in medical negligence litigation is commonly known as the Bolam test amongst lawyers and medical practitioners. The direction by McNair J13, known as the Bolam test, states that a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the

10 Norrie, K.M, (1985). “Medical negligence: who sets the standard?”. Journal of medical ethics. 11, p.135. 11 The Royal College of Radiologists. (2011) “Providing expert advice to the court: guidance for members and Fellows”, 2nd edn. London: The Royal College of Radiologists 12 Danzon, P., (1985) Medical Malpractice: Theory, Evidence and Public Policy. 1st ed. U.S.A: Library of Congress. p.1 13 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

relevant speciality at the material time.14 It is immaterial that there exists another body of medical opinion that would not have adopted the approach taken by the said doctor.15 In other ords, the test allows doctors to escape liability by calling experts to testify that the procedure adopted was consistent with practices accepted by a reasonable body of medical opinion.16 Such interpretation of Bolam was repeatedly made by the courts to determine the standard of care in several medical negligence lawsuits.17 Since its introduction, nearly fifty years ago, the Bolam principle had undergone various phases of recognition, condemnation and re-interpretation.18 For the medical profession, the Bolam principle is no more than simple justice that their own peers must judge them, like other professionals; but on the other hand, for the patients, the Bolam principle can be an obstacle that hinders them from getting justice and fair trial.19

However, little attention was paid to the qualification made by McNair J to the Bolam principle when he further stated that this test does not mean that a medical man can

14 Samanta, A., Mello, M.M, Foster, C., Tingle, J. & Samantha J., (2006). “The role of clinical guidelines in medical negligence litigation: a shift from the Bolam standard”. Medical Law Review. 14 (3), p.321. 15 Kassim, P.N.J. (2008). “Abandoning the Bolam Principle in Doctor’s Duty to Disclose Risks in Malaysia: Are We Heading in the Right Direction?”. p.02 16 ibid. 17 see, for instance, De Frietas v O’Brien [1993] 4 Med. L.R. 281, 18 Kassim (2008) op. cit. note 15, p.01 19 ibid.

obstinately and pig headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. McNair J is impliedly suggesting that medical expert evidence that does not really stand up to analysis should be rejected.20

After Bolam, the judge and not the community jury was in charge of what is the acceptable standard of medical practice; the judge could therefore now say in the light of evidence the defence evidence is not justifiable.21 However, as Unachukwu points out, it was rarely the case for judges to apply this in clinical negligence cases due to deference to the medical profession and during this era, a lot depended on the oral performance of the experts and the judicial rhetoric favoured paternalism.22

1.3 Bolam Continued

Mr. Shanmugam MP of Singapore is a strong upporter of the Bolam approach and suggests very strongly that, the Bolam test strikes the correct balance between the rights of doctors, atients and the general public.23 He argues and this echoes those concerns expressed by the judge in the case of Khoo James, that if the

20 ibid., p.02 21 Unachukwu, I. M.B. and Unachukwu, Dr. Anayo. (2009). “Clinical Negligence: Is Bolam Still Relevant?”. p.04 22 ibid. 23 Shanmugam, K., (2002). “Testing the Bolam Test: Consequences of Recent Developments”. Singapore Medical Journal. 43 (1), p.007

courts fail to take a Bolam type approach to medical negligence litigation, it can have adverse consequences to the medical profession as well as to society.24 Firstly, he expresses the concern that doctors will opt for “defensive medicine”, which will mean that they will choose to treat patients which is most likely to be “legally safe” even if they believe that such treatment may not be strictly warranted.25 This may be unnecessarily expensive and time consuming. His second concern is that a Bolitho type approach, where judges disregard expert medical opinion, might encourage more medical litigation, which in turn will increase premiums and overall healthcare costs.26 His final concern was that, failing to adhere a Bolam type approach might affect good doctor patient relationships and possibly dissuade good young doctors to shy away from high-risk specialist fields.27
Pattinson articulates in his book that compliance with practices accepted by the profession will usually ensure compliance with normative standard of what professionals ought to do if they are to act reasonably.28 Furthermore, setting and applying the standard of care does pose difficulties for the court.29 In an ordinary case(non-medical) the court is

24 ibid. 25 ibid. 26 ibid. 27 ibid. 28 Pattinson, S.D., (2011). “Clinical Negligence’’. In: Medical Law and Ethics. 3rd ed. UK: Sweet & Maxwell. p.79 29 ibid. p.80

fully competent to lay down what the reasonable man should do in everyday circumstances.30 However, in the case of medical negligence the court may be called upon to measure the reasonableness of medical activity about which the judge has no great level of understanding.31 As Norrie points out, the intricacies of medical science are not, generally speaking, within judicial knowledge, nd this has led to suggestions that in a case of medical negligence it should not be left to the courts to lay down the standard to be achieved.32 Pattinson argues in the same line as Norrie, pointing out that judges should not intervene particularly in scenarios where there is a conflict of expert opinion on the relative risks and benefits of particular procedures and approaches.33

Lord Justice Scott once made this cri de Coeur when asked to judge whether a surgeon had come up to the standard demanded by the law: ‘How can the ordinary judge have sufficient knowledge of surgical operations to draw such an inference (of negligence), or….what does he know of the ‘ordinary course of things’ in a complicated abdominal operation?’34 Brazier provides a nice example to illustrate this point. If, in a claim against an architect, the dispute concerns either whether her original 30 Norrie, K.M (1985) op. cit. note 10

31 ibid. 32 ibid. 33 Pattinson, S.D. (2009) op. cit. note 28 34 Scott L J in Mahon v Osborne [1939] 2 KB 14 at p 23 as cited in Norrie, K.M (1985) op. cit. note 10

design plans recognised and dealt with risks posed by subsidence, or whether, in delegating certain responsibilities to a quantity surveyor she acted properly, only her peers can identify to the judge what amounts to appropriate and safe practice.35 When those peers disagree and the disagreement illustrates genuine and well founded debate within a profession on good practice, judges are not generally equipped to adjudicate in such a dispute.36 The law should have regard to commonly accepted medical practices in determining what a particular doctor did was or was not negligent.37

Part II – Who is the final arbiter?

2.1 Bolitho: Bolam’s Cousin?

The House of Lords’ decision in the case of Bolitho v City & Hackney Health Authority38 has been regarded by many commentators as representing a significant nail in Bolam’s coffin.39 The central legal issue was whether or not non-intervention by a doctor caused the laintiff’s injury.40 The speech by Lord Browne-Wilkinson, in the leading judgement, has potential implications for the way in which the

35 Brazier, M. & Miola, J., (2000) op. cit. note 1, at p.3 36 ibid. 37 Norrie, K.M (1985) op.cit note 10 38 [1998] A.C. 232, H.L 39 Kian, C.T.S (2003) op. cit. note 4 40 Samanta, A. & Samanta J., (2003). “Legal standard of care: a shift from the traditional Bolam test”. Clinical Medicine. 3 (5), p.444 Bolam test might be interpreted in the future.41

Lord Browne-Wilkinson in Bolitho sought to correct what he believed to had been a misinterpretation of Bolam. 42As has been judicially pointed out, Bolitho turned Bolam on its axis, in that the court, and not the medical profession became the final arbiter of medical breach.43 It should be pointed out at this point that, Bolitho itself does not give much guidance. The decision in Bolitho suggests that the court should adopt a more interventionist stance in assessing expert evidence and in setting the standard of care.44 The decision in Bolitho removes the usual “rubber-stamping “ of expert medical opinion and such opinion now must withstand rigorous scrutiny from the judiciary.45 The court is not bound to find for a defendant simply because he leads evidence from a body of experts who genuinely believe that the defendant’s practice conformed sound medical practice.46 The expert medical opinion must have sufficient logical basis. His Lordship further added, taking few

41 ibid. 42 Brazier & Miola (2000) op. cit. note 1, at p.85 43 Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253, 87 B.M.L.R. 73, at [11] as cited in Mulheron, R., (2010). “Trumping Bolam: a critical legal analysis of Bolitho’s “gloss”.” Cambridge Law Journal. 69 (3), p.609 44 Samanta, A. et al. (2006) op. cit. note 14 45 Kassim, P.N.J (2008) op. cit 15, at p.3 46 Brazier & Miola (2000) op. cit.note 1, at p.97

previous decisions in his consideration47, that “if it can be demonstrated that the expert medical opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not responsible”.48

2.2 Bolitho – Influence and Impact

In Penney v East Kent Health Authority49, the Court of Appeal held that Bolam test applied, subject to the qualification that expert evidence of the defendants’ conduct accorded with sound medical practice and was capable of withstanding logical analysis, and in areas of factual conflict between two competent experts holding genuinely different opinions, the judge can decide which evidence to prefer.50

Bolitho was greeted warmly by many.51 For the courts abandoning the Bolam principle fulfils the community’s expectations and indicates that infallibility of medical judgment is a thing of the past.52 In other words, expert evidence, whether of professional practice or otherwise, is not conclusive in a medical negligence case that the defendant has not been careless.53 As Kassim points out, previously, the well-
47 see, for eg. Hucks v. Cole (a case from 1968 reported in [1993] 4 Med. L.R. 393), Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master [1984] 1 A.C. 296 etc. 48 see, Judgment – Bolitho v. City and Hackney Health Authority [1998] A.C. 238, H.L 49 [1999] All ER (D) 1271 50 Kian, C.T.S. (2003) op. cit. note 4, at p.385 51 Heywood, R., (2006). “The logic of Bolitho”. Professional Negligence. 22 (4), p.227. 52 Kassim (2008) op. cit. note 15 53 Heywood (2006) op. cit. note 51

established Bolam principle had not given much scope for judicial intervention and as mentioned above, had ensured that medical treatment that accorded with a body of professional opinion was not negligent.54 Foster argues in the same line when he claims that Bolitho stopped a lot of the abuses of the olam test.55 He further argues that, Bolitho in practice reminded practitioners and judges that Bolam was part of the test for breach of duty and that they should be more critical of expert evidence that they present and allow, than before.56

In Marriot v West Midlands Health Authority57, it was held that the medical practitioner was negligent(despite having expert witness that supported his conduct) for failure to refer a man who sustained intracranial injury back to the hospital when he deteriorated.58 It has been said that may be Bolitho have had an undue influence on the decision given that this was barely two years after Lord Browne-Wilkinson talked about the logical basis of expert pinion.59 Of interest is that the judge based her decision on reasonableness of the opinion while the Court of Appeal reached the same decision but retained language of ‘logic’.60
54 Kassim, P.N.J (2008) op. cit. note 15, at p.3 55 Foster, C. (2007) op. cit. note3 56 ibid. 57 [1999] Lloyds Rep Med 23 58 Unachukwu & Unachukwu (2009) op. cit.note 21, at p.8 59 ibid 60 ibid.

Bolitho has been welcomed by many for reining the Bolam test but this paper argues that judges are in no position to adjudicate over matters on which expert medical professionals cannot agree. Castle has indicated that the comments in Bolitho ‘re-emphasise the court’s jurisdiction in medical matters although it will be a rare and exceptional case that will be successful’.61 The main concern, a fear shared by many commentators including Rob Heywood, is that Bolitho can only work if the courts are actually prepared to engage in a thorough examination of medical evidence rather than just saying they will.62

2.3 Should the judges take a back seat?

The Bolam test was said to be over protective and deferential towards doctors63 and had the potential to be satisfied by the production of a dubious expert whose professional views existed at the fringe of medical consciousness.64 There was a perception that the medical profession was “above the law”, that the Bolam test deprived courts of the opportunity of “precipitating changes where required in the professional standards”65, and that the courts were being “dictated to” rather than exercising their judgement.66
61 Castle, N. (1998). “ Applying Bolitho” 2 JPIL 278 at 281 as cited in Heywood, R. (2006) op. cit. note 51. 62 Heywood, R. (2006) op. cit. note 51. 63 Mulheron, R., (2010). “Trumping Bolam: a critical legal analysis of Bolitho’s “gloss”.” Cambridge Law Journal. 69 (3), p.612 64 ibid. 65 ibid. 66 ibid.

The courts are nowadays, with increasing frequency, being asked to adjudicate on legal points bound up with fundamental and emotive questions of medical ethics. Lord Woolf in an extra-judicial statement agrees that expert evidence of doctors is most important on the thical issues involved but insists that the courts and not the doctors are final arbiters.67 However, recently in Re A (Children), Ward LJ stated the following, “Deciding disputed matters of life and death is surely and pre-eminently a matter for a court of law to judge. That is what courts are here for”. Somewhat paradoxically, Vitch argues that the historical respect shown to doctors by the judiciary is retained as part of the wider effort to reduce the power of the medical profession vis-a-vis the patient.68 The courts are more prominently taking up an active role in deciding medical negligence litigations.

Nevertheless, Mulheron argues that, it is not for the court to venture into a consideration of two contrary bodies of opinion and to decide a case on the basis of which, of the patient’s or the doctor’s expert medical opinion, it prefers.69 It can be argued that few medical decisions are purely matters of medical expertise. Weighing the risks and benefits is value-laden and medical expertise does not entail ethical expertise or legitimacy thus, at
67 The Right Honourable The Lord Woolf (2001) as cited in Vitch, K., (2007). The Jurisdiction of Medical Law. 1st ed. England: Ashgate. p.2 68 Vitch, K., (2007). The Jurisdiction of Medical Law. 1st ed. England: Ashgate. p. 101 69 Mulheron (2010). op. cit. note 63, at p.614
the very least, some judicial oversight is required to ensure that doctors do not abuse their position, whether by intent, inadvertence or indolence.70

To say that the court does not have the requisite skill validly to pronounce on the activity in question is to ignore the fact that it is the court’s duty to pronounce on whether any practice, in any walk of life, is legally acceptable.71 Were it otherwise, then the medical profession would be able to place itself outside the law and set their own standards according to their perceptions of what is acceptable. 72 To say that the courts must have the final word as to the legal acceptability of a medical practice is not to suggest that the medical profession will abuse its position without supervision, but simply to suggest that it must be as open to such supervision as anyone else.73After Bolitho, many commentators have expressed the concern that a defendant’s conduct can be unreasonable even if logical.74

But then again what is the true meaning of ‘logical’? As Heywood points out, rather unsympathetically, that it is inevitable that there will be some circumstances where the complexity and discretionary nature of medicine render it incapable of fitting neatly into an
70 Pattinson (2011) op. cit. note 28, at p.81 71 Norrie (1985) op. cit. note 10, at p.136 72 ibid. 73 ibid. 74 Pattinson (2011) op. cit. note 28

assessment of what is logical.75 Glover poses the question: in medical decision-making, where matters of professional interpretation come into play, just because a decision is not ‘logical’ [to a court] does it automatically mean it is ‘wrong’?76 Both Keown and Teff highlight the dangers of focusing solely on the bigger picture in clinical negligence cases by overlooking an examination of what is reasonable in the circumstances.77 To a doctor it can be completely logical to perform a traditional surgery in order to remove a kidney stone. However, performance of that procedure can be completely illogical to a judge when he knows that the defendant could have performed a laser removal surgery. But both the procedures can potentially lead to adverse complications later. It is quite possible to get different expert opinions that support or oppose such procedures. Weighing the risks in such cases should not be left to a judge but to a learned mind of the medical professional. Therefore, this paper submits that, a common medical practice, from the very fact of being accepted by a body of medical opinion, should not be held negligent in law; and that doctors charged with negligence should not suffer an adverse verdict if it is established that what he did accorded with accepted medical practice.78 As Lord Alness once said: ‘A defendant charged with negligence can clear his feet if he shows that he has acted in accord with general and

75 Heywood (2006) op. cit. note 51, at p.227 76 ibid., p.227, 228 77 Keown, J. “Reining in the Bolam Test” (1998) as cited in Heywood, R. (2006) ibid., p.228 78 Norrie (1985) op. cit. note 10
approved practice.’79 In the Scottish case Hunter v Hanley80, Lord Clyde laid down the classic test for establishing medical negligence: ‘The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care’.

As Foster argues rather strongly that, there has been, and there will be litigation which requires detailed knowledge of some very arcane corners of medicine.81 For such cases the judge should always seek expert opinion and hold the medical profession as the final arbiter. But then again, Foster claims, rather vaguely, that only 90 per cent of clinical negligence is about 1 per cent of medicine.82 Foster agrees, rather unwillingly that evidence-based medicine is not stridently unequivocal about the right clinical answer in all areas of medicine: nor is it likely to be, at least for a long time.83 But, he points out, that it does not mean that expert reports, to be Bolitho-credible, have to bristle with references to the literature that support each proposition asserted, and also that clinical guidelines are increasingly determinative of good medical practice, and therefore litigation.84

79 Vancouver General Hospital v McDaniel (1934) 152 LT 56. per Lord Alness at 57-58 80 [1955] SLT 213 81 Foster (2007) op. cit. note 3 82 ibid. 83 ibid. 84 ibid.

Conclusion

A way beyond Bolam and Bolitho

Brazier & Miola rather strictly condemns judicial activism when stating that a professional should not be penalised, and be held to be incompetent, just because a judge fancies ‘playing’ at being architect, solicitor or doctor. 85 Every medical advance since Hippocrates has at some stage been a departure from the normal and accepted practice, and to castigate such departure as of its nature negligence is a dangerous nonsense.86 Lord Clyde in Hunter v Hanley87 echoed such concern when he stated that, “it would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances”.88

This paper would like to agree with Brazier & Miola’s comment that the prospect of the courts to suddenly revise the tradition of decades and actively seek to arrogate to themselves the making of clinical judgement is remote.89 There are not many cases since 1997 that followed the Bolitho approach and the boundaries of medical judgement have not yet been severely threatened in any case. Perhaps, the courts should not take a back seat approach that empowers the
85 Brazier & Miola (2000) op. cit.note 1, at p.87 86 Norrie (1985) op. cit. note 10, at p.136 87 [1955] SLT 213 88 ibid. per Lord President Clyde 89 Brazier & Miola (2000) op. cit. note 1, at p.114

medical profession too much but neither should it intervene so as to render the development and progress of medicine.

Copyright © Shajib Mahmood Alam 2012
shajib.mahmood@gmail.com