Beyond Bolam and Bolitho

Abstract

The application of the Bolam test to cases of medical negligence has been the subject of prolonged criticism. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. In 1997, Lord Browne-Wilkinson, in Bolitho v City and Hackney HA, reaffirmed that power. Some commentators greeted this reaffirmation with talk of the ‘new’ Bolam and a ‘revolution’ in medical negligence litigation. It is now some four years since the Bolitho judgment and the courts have had ample opportunity to put the more interventionist policy into practice. In this article, I consider both the academic response to Bolitho and I analyse the subsequent 64 relevant medical negligence cases. I conclude that while judges appear more willing to question the expert this relates to issues of fact and credibility rather than the requisite standard in a normative sense.