INTERCAMBIO MODAL

Abdul Shakoor died from acute liver failure due to having taken a herbal remedy prescribed by Kang Situ, a practitioner of traditional Chinese Herbal Medicine. Shakoor’s reaction to the remedy was unusual and Situ did not know the possibility of it although there had been some correspondence about such a possible reaction published in ‘The Lancet’, a leading orthodox medical journal. Situ produced a witness who was an expert in Chinese Herbal Medicine to confirm that the treatment was a reasonable one for practitioners of Chinese Herbal Medicine, and claimed that he should not be judged by the standards of orthodox western general medical practitioners, as he did not hold himself out to be such a person.

The court held that where someone practices alternative medicine alongside orthodox practitioners, he has a duty to acquaint himself with the potential risks of his treatments if they have been documented in the orthodox press and cannot claim the general ignorance of alternative practitioners in the field as a defence.

However, in the circumstances, the reports about the herbs he had used were not conclusive as to their adverse side-effects and it seemed that even if Situ had read them, he would not have been negligent to have disregarded them as even orthodox practitioners might reasonably have done so. Thus, he was not liable.

n.b. Roe v. Minister of Health [1954] 2 QB 66 (CA)

53

CONFLICTING PROFESSIONAL STANDARDS

General Principle

53.1 Many of the cases concern conflicting opinions, but the general principle is that it does not matter if a responsible body of professional opinion considers a decision to be wrong, provided that an equally responsible body considers it to be correct.

53.2 Hunter v. Hanley (1955) SLT 213

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” per Clyde L.P. at p.217

This was cited with approval in the cases of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634 and Luxmoore- May v. Messenger May Baverstock [1990] 1 WLR 1009.

53.3 Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634 (HL)

“It is not sufficient to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper.” per Lord Scarman at p.638

54

THE BOLITHO REFINEMENT

54.1 As the burden of proof is on the claimant, the Bolam test seemed to imply that even if the claimant could amass a body of expert opinion in his favour, the claim would be defeated even if the defendant could produce only one expert to speak for him. However, the suggestion that the ‘expert’ opinions of doctors were unquestionable was strongly refuted in 1993.

54.2 Hucks v. Cole [1993] 4 Med.L.R. 393 (CA)

A doctor failed to treat with penicillin a patient who was suffering from septic places on her skin though he knew them to contain organisms capable of leading to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The defendant was held not to have been negligent.

“When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna, particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.”

54.3 Hucks v. Cole was approved by the House of Lords in Bolitho v. City & Hackney Health Authority [1997] where the House of Lords emphasised that the test of professional competence was whether a “reasonable and responsible” body of professional opinion endorsed the defendant’s actions. The court was entitled to disregard “expert” evidence on the basis that in the circumstances it was illogical to consider it met these criteria. It was the right and duty of the court to reach a decision based on all the evidence.

54.4 Bolitho v. City & Hackney Health Authority [1998] AC 232 (HL)

A two-year-old boy was admitted to hospital suffering from respiratory difficulties. His breathing deteriorated several times, but the doctor who was called declined to attend. The child apparently recovered the first two times, but after the third, he suffered cardiac arrest, which led to severe brain damage from which he eventually died. The cardiac arrest might have been avoided had the doctor arranged for prophylactic intubation after the second respiratory compromise, but she argued that she would not have arranged for the intubation even if she had attended, and so her failure to attend was not the cause of the death. The court accepted this, and so the case collapsed on the issue of causation.

In his obiter dictum, Lord Browne-Wilkinson, with whom the others Lords all agreed, explained the limits of the Bolam test in establishing the standard of care required by professionals.

“In my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated that the defendant had to have acted in accordance with the practice accepted as proper by a “responsible body of medical men.” Later he referred to “a standard of practice recognised as proper by a competent reasonable body of opinion.”

“Again, in...Maynard’s case, Lord Scarman refers to a “respectable” body of professional opinion. The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judges before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.” per Lord Browne-Wilkinson

54.5 Sharkey v. Belfast Health and Social Care Trust [2014] NIQB 117

“If the case is one that involves clinical judgment to which the Bolam test applies, and if the medical practitioner does produce evidence that his practice was supported by a responsible body of medical opinion, then, in the words of Sedley L.J. in Adams v. Rhymney Valley DC [2000] Lloyd's Rep. P.N. 777 , at [41], “the judge or jury have to accept the opinion of a body of responsible practitioners, unless it is unreasonable [in the Bolitho sense]”

Accordingly in an action involving clinical judgment there is a two-step procedure to determine the question of alleged medical negligence:

(a) whether the medical practitioner acted in accordance with a practice accepted as proper for an ordinarily competent medical practitioner by a responsible body of medical opinion; and

(b) if “yes”, whether the practice survives Bolitho judicial scrutiny as being “responsible” or “logical”.” per Stephens J. at para 46

54.6 The Bolitho obiter has been applied in several cases.