556 Bolam law for medical negligence, external factors and exceptional circumstances: Is this law still fit for the 21st Century? A literature based review
Abdul Malik Magsi, Muhammad Qasim, Musab Bin Umair, Krishna K Singh, Muhammad S Sajid, Parv Sains- Surgery
Abstract
Objective
The objective of this article is to evaluate the fitness of Bolam law (1957) for medical negligence under times of great change in healthcare provision, scarcity of resources, rapidly changing technologies, and exceptional circumstances of a pandemic.
Methods
An extensive review of medical and legal literature was undertaken that detailed the Bolam and Bolitho tests of negligence.
Results
For the medical professional, Bolam enhanced certainty by providing medical professionals with confidence that contradictory perspectives would not necessarily be seen in law as evidence of substandard care. From a patient’s perspective, however, Bolam was perceived to have established a climate of deference to the medical profession with an arguable abdication of responsibility to clinicians as the experts. The House of Lords decision (Bolitho v City) in 1997 signalled a shift away from Bolam, possibly having restored it back to its proper limits. Bolitho moved away from the second part of the Bolam test, that of the ‘responsible body of medical men”, ensuring that peer professional opinion which was said to represent evidence of responsible medical practice could be departed from, if that opinion was determined by the court to be “not capable of withstanding logical analysis,” or was otherwise “unreasonable” or “irresponsible.”
Conclusion
Medical negligence is a complex situation that is underpinned by the setting of a standard of care through various mechanisms involving the surgical community, hospital leaders and management, the judiciary, lawyers, and expert witnesses. The current system is adversarial and arguably lacks compassion for all parties.