From Bolam to Ipp: an examination of the standard of care in medical negligence cases since 1957

Abstract

The past 50 years have seen significant changes in the definition of the standard of care in claims for medical negligence, beginning with Bolam in 19571 and ending with the implementation of the Ipp proposals in 2002−2003.2 Over this time there has been much debate and, on some occasions, hysterical outbursts by both doctors and plaintiff lawyers. On the one hand, doctors claimed that it was nonsensical for the courts to determine the standard of care, as they had no training, experience or knowledge of medicine and surgery. Lawyers, on the other hand, claimed that plaintiff rights were being eroded or removed by common law and legislative changes. A reasoned non-partisan view of the developments to date leads to the conclusion that the legal position now in place is sensible and rational as it takes into account the needs of both the medical profession and the community at large. Persons injured negligently by medical hands must be compensated, adverse events secondary to medical misadventure should be accepted and persons undergoing medical or surgical treatment have a responsibility (as do doctors) to satisfy themselves that they are aware of all that they might wish to know about a treatment or procedure. Finally, the community at large must accept that medical indemnity insurance premiums must be affordable for, if they are not, doctors will leave the profession or be forced to raise fees to levels that, in themselves, will be unaffordable. Following the Bolam decision, it was accepted that the standard of care was that held ‘by a responsible body of medical men skilled in that particular art’1 and, furthermore, that ‘a man is not negligent if he is acting in accordance with such a practice, merely because there is a body who would take a contrary view’. Thus the standard that prevailed for many years was, for practical purposes, that if a number of your colleagues practised in the same way, and there may be other methods, that standard was acceptable. Standards need not be too high nor too low but were to be ‘fair and reasonable’.1, 3 The concept of reasonableness is one that is repeated over the years but, at least in earlier times, seems to be related more to the medical profession's notion of reasonableness rather than a wider community view that came to be adopted in later cases, such as Reibl v Hughes,4Rogers v Whitaker,5Chapel v Hart6 and in the Ipp Report.2 It has now become accepted that the patient/plaintiff has a right to know about a much wider range of information than had previously been considered necessary by the medical profession. Thus medical paternalism has gradually disappeared and doctors have had to ensure that all aspects of treatment were discussed, including those that the patient would find material in making an informed consent. Finally, in Rogers v Whitaker, an Australian court made quite clear the importance of informing patients of risks that were material, special or unusual. From the doctor's point of view this was seen as the pendulum swinging in favour of the plaintiff and the court. Subsequently, the notion that the common practice principle did not extend to customs or practices that ignore the elementary dictates of caution were accepted. The latter was extensively examined in Bolitho,7 where the court took the view that for expert testimony to be acceptable it must come not only from a source that was responsible, reasonable and respectable, but also that it would withstand the test of logical analysis, that is, it was reasonable. This notion was taken up in the Ipp Report where the Committee set the standard of care as not only being held ‘by a significant number of respected practitioners in the field’2 but also that this opinion not be ‘irrational’, subsequently modified in some states (e.g. Victoria) to ‘unreasonable’.8 Ipp has also made much clearer the number of doctors required to hold the standard view while accepting that there may be more than one. These and other recommendations made in Bolitho and Ipp move the standard back towards a more balanced approach where the rights of both patients and their doctors are considered in a more reasoned, fairer and rational light. The question now is, of course, will the courts be more accepting of the medical view of the prevailing standard of care? The answer is awaited with considerable interest.