Bolam Test Research Articles

Doctors in conflict with the criminal law: A records review of gross medical negligence cases under the Indian penal code

Medical negligence is a critical issue in the healthcare system, often resulting in harm to patients and legal disputes. Objectives: The article focuses on cases of criminal medical negligence in India, including notable cases such as Jacob Mathew, Syad Akbar, and PB Desai. The study aims to analyze the judgments given by courts against medical professionals charged under the Sec. 304A of the Indian Penal Code (IPC). This specific study was undertaken as there was a dearth of research around criminal negligence; however, ample data were available for civil breach of duty by doctors. Material and Methods: This is a records review type of research. The research methodology involved conducting an extensive search for relevant judgments on indiakanoon.com using keywords such as “medical negligence,” “due care,” “Bolam test,” and “Supreme Court (SC) judgments.” The study specifically focused on judgments that pertained to criminal cases under Section 304 IPC (Death due to rash or negligent action) while excluding civil cases, consumer court cases, and disciplinary actions of state medical councils. Results: After conducting a judgment search, 90 cases met the inclusion criteria. The legal principles pertaining to negligence as established in the Jacob Mathew case, such as the definition of negligence amounting to a criminal nature and the criteria for determining a breach of duty, were reproduced. In the Syad Akbar case, SC laid down the difference in evidence required to prove medical negligence amounting to a crime. In the PB Desai case, the court clarified that mere differences in opinion between 2 doctors do not amount to negligence if due care was taken and the treatment was in line with the standard of care applicable at that time. Conclusion: The results of the study provide valuable insights into the judicial approach to criminal medical negligence cases in India. By examining a range of judgments from different jurisdictions, the study identifies common themes, emerging trends, and significant precedents that shape the legal landscape surrounding medical negligence. It underscores the need for robust standards of due care and emphasizes the role of the judiciary in promoting patient safety, accountability, and fair compensation in cases of medical negligence. This article contributes to the existing body of knowledge on medical negligence in India, serving as a valuable resource for legal professionals, healthcare practitioners, policymakers, and researchers interested in understanding and addressing the complexities of this important issue.

Satisficing in Dentistry. Who decides? Who benefits? Part 3

This series of articles challenges some popular myths about supposedly ‘ideal’ treatment plans and is designed to provoke reflection and stimulate debate. It explains the concept of ‘satisficing’ (as opposed to ‘maximizing’) in dentistry, and illustrates how subconscious bias and self-interests might lead supposed experts to promote arbitrary aspirational standards and confuse them with what the law expects (the Bolam Test standard) and what is genuinely in the best interests of an individual patient. It is argued that sound, patient-centred, pragmatic planning and treatment is equally valid, with wider applicability, than routinely defaulting to a self-serving ‘maximalist’ approach. CPD/Clinical Relevance: The ‘satisficing ‘concept has wide and profound application across many fields of clinical (and non-clinical) dentistry.

Satisficing in dentistry. Who decides? who benefits? part 2

This three-part series of articles challenges some popular myths about supposedly ‘ideal’ treatment plans and is designed to provoke reflection and stimulate debate. It explains the concept of ‘satisficing’, as opposed to ‘maximizing’, in dentistry, and illustrates how subconscious bias and self-interests might lead supposed experts to promote arbitrary aspirational standards and confuse them with what the law expects (the Bolam Test standard), and what is genuinely in the best interests of an individual patient. It is argued that sound, patient-centred pragmatic planning and treatment is equally valid, with wider applicability than routinely defaulting to a self-serving ‘maximalist’ approach. CPD/Clinical Relevance: The ‘satisficing’ concept has wide and profound application across many fields of dentistry.

‘Satisficing’ in dentistry: who decides? who benefits?

This series of articles challenges some popular myths about supposedly ‘ideal’ treatment plans, and is designed to provoke reflection and stimulate debate. It explains the concept of ‘satisficing’ (as opposed to ‘maximizing’) in dentistry, and illustrates how subconscious bias and self-interests might lead supposed experts to promote arbitrary aspirational standards and confuse them with what the law expects (the Bolam Test standard) and what is genuinely in the best interests of an individual patient. It is argued that sound, patient-centred pragmatic planning and treatment is equally valid, with wider applicability than routinely defaulting to a self-serving ‘maximalist’ approach, often on spurious grounds. CPD/Clinical Relevance: The ‘satisficing’ concept has wide and profound application across many fields of dentistry; this first part explains the basic principles and how and why it is relevant to various aspects of practical dentistry and also to our understanding of professionalism.

Medical Negligence with Special Reference to Act of Commission and Omission: A Narrative Review

A doctor’s failure to uphold the standards of his profession, causing the death of a patient whom the doctor hoped to save, is known as medical negligence. The most embarrassing act one can commit is medical negligence, which usually results in the patient’s death. Legally, medical negligence is a breach of the duty of care leading to harm. Lack of clinical competence can be interpreted as negligence. Indian courts decide cases of medical negligence based on the Bolam test. According to Black’s Law Dictionary, negligence is defined as “conduct, action, or omission, which may be declared as negligence without any argument or proof as it violates the dictates of common prudence”. The three cardinal elements in negligence are duty of care failure, failure to exercise duty of care (Dereliction), and causation of damage to the patient on account of dereliction. References to medical negligence can be found in classical texts such as Manusmriti, Kotilya Arthashastra, Charaka Samhita, Sushruta Samhita, and others. To mitigate medical negligence, various measures can be taken, such as improved communication, strengthening training and education, emphasising quality assurance, and legal reforms. The rapid development of medical science and technology has proven to be a powerful tool for doctors to better diagnose and treat patients, but it has also become a tool to exploit people for profit. Accurate information about negligence and its laws is needed as there is not enough data in this regard. To avoid medical negligence, practitioners should show strict adherence to modern surgical ethics, which also include concepts like the importance of informed consent, doctor-doctor relationship, doctor-patient relationship, doctor-state relationship, doctor-attendant relationship, attendantpatient relationship, and patient autonomy.

556 Bolam law for medical negligence, external factors and exceptional circumstances: Is this law still fit for the 21st Century? A literature based review

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.

The evolution of informed consent in gastroenterology.

With medical litigation on the rise, physicians require a nuanced understanding of the legalities of consenting patients to reduce their liability while practising evidence-based medicine. This study aims to a) clarify the legal duties of gastroenterologists in the UK and USA when gaining informed consent and b) provide recommendations at the international and physician level to improve the consent process and reduce liability.A bibliometric analysis of the Web of Science database with the MeSH terms "gastroenterology" and "informed consent" yielded 383 articles, of which 228 were excluded due to not meeting the inclusion criteria. Of the top 50 articles, 48% were from American institutions and 16% were from the UK. Thematic analysis showed 72% of the articles discussed informed consent in relation to diagnostic procedures, 14% regarding treatment, and 14% regarding research participation.Both the USA and the UK have progressed from previously paternalistic Natanson case (1960) and Bolam test (1957), respectively, where physicians were held to the standard of a "reasonable and prudent medical doctor". The American Canterbury case (1972) and the British Montgomery case (2015) radically shifted the standard of disclosure during the consent process by requiring physicians to explain all information pertinent to a "reasonable patient".It is our recommendation that a two-pronged approach be taken; a) creation of international guidelines for consenting patients for invasive procedures in gastroenterology, and b) development of internationally standardised endoscopy consent forms containing all the details pertinent to a "reasonable patient".

Uji Kelalaian Medis: Sebuah Kajian Literatur

Medical negligence is a constant issue in medical practice in which its occurrence is constantly increasing, putting patients’ safety at risk. In Indonesia, medical negligence dispute settlement is done by the methods of litigation and non-litigation. However, there is currently no explicit law regarding medical malpractice, medical negligence and medical risk in Indonesia, hence, cases of medical risk are often mistakenly regarded as malpractice. In essence, there are several tests used as benchmarks to regard cases as medical negligence; that includes the Bolam test, Bolitho test and Montgomery test. This literature review aims to present an overview of each test currently used for medical negligence dispute settlement, whereas its application could aid in solving medical disputes in Indonesia.

Beyond “Evidence-Based Medicine” in “Detained Patients"

AimsTreatments without robust evidence are not recommended. However, some patients detained in secure hospitals might need novel approaches such as: off-license use of medication, use of psychological (rather than their biological) effects of drugs. In addition, some detained patients may request for unconventional treatments they believe in. In community and capacitous patients, the clinician's role is advisory and the burden is on the patient to make the final decision and access such treatments privately. However, in a detained patient (with or without capacity), it may fall on the Responsible Clinician (RC) to deny or facilitate access to such interventions. Currently, there is no guidance for such circumstances. We have presented three real cases followed by proposing a flowchart to guide RCs.MethodsCase 1 (2019–2020): X with mild Learning Disability (LD) and mixed personality disorder detained under Section 3 with no leave to community. X asked for Hypericum which has been helpful with her headaches in the past. X had capacity to make that decision.Case 2 (1996–97): Y with mild LD and aggressive behaviours responding instantly to any injection. Y lacked capacity so injections of distilled water was tried in his best interest, with equal positive effect. The question was about using distilled water as rapid tranquilisation with no side effects.Case 3 (2020–21): Z with a treatment-resistant psychosis who has been unwell for months and detained in four different PICUs. Z's father requested N Acetyl Cysteine which had historical calming and sedative effects for Z.ResultsThe main issue in case 1 is the conflict between the patient's Human Rights and RC's Duty of care. Here the patient could be potentially deprived of their right to make an ‘unwise decision’ should the RC bar her access to a treatment which lacks evidence but is privately available to public. This can be construed as an infringement of Article 8 of Human Rights.The issue in case 2 and 3 is rather different. Here the conflict is between the RC's duty of care to provide evidence-based treatments and the patient's “best interest” which seems to be an intervention without robust evidence.ConclusionWe have developed a flowchart to help RCs by navigating amongst several competing/ conflicting legal and ethical concepts such as: Patient's wish/Human rights, Patient's capacity, Bolam test, “Medical Treatment” Under Section 63, 62 or 58 of Mental Health Act 1983, Best interest, Second Opinion (SOAD) and advice from court.

Differentiating Negligent Standards of Care in Diagnosis

Diagnosis lies at the heart of the medical encounter, yet it has received much less attention than treatment. It is widely assumed that negligent diagnosis claims should be governed by the Bolam test, but we demonstrate that this is not always the case. First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and recording it. Second, we consider alternatives to Bolam for defining negligence, including less deferential profession-led standards, patient-led standards, and even a reasonable person standard. Third, bringing together these distinctions—within the diagnostic process, and between standards of care—we reveal the unappreciated complexity of negligent diagnosis. Analysing the standard of care that might apply to the three different acts in the diagnostic process, we identify reasons to think that Montgomery should apply to the communication of a diagnosis. We also argue that even in areas where the law is well-established, such as the application of Bolam to the formation of a diagnosis, challenging questions arise that require further attention. Throughout, the framework and analysis that we develop have significant implications for a set of negligence cases, as well as for medical education, clinical guidelines, and patient care.

Of Entente Betwixt Medical Negligence and John Bolam; Is Time Ripe to Decamp from Bolam Test? An Examen

Of Entente Betwixt Medical Negligence and John Bolam; Is Time Ripe to Decamp from Bolam Test? An Examen

202 Consenting Practice for Post-Cholecystectomy Diarrhoea After Laparoscopic Cholecystectomy – Are We Missing A Trick?

Abstract Aim The landmark case of Montgomery v Lanarkshire Health Board led to the defensive Bolam test being discredited and paved the way healthcare professionals (HCP) obtain informed consent. The recent GMC guidance on Decision Making and Consent 2020, states that the HCP should discuss recognised risks that they believe anyone in the patient’s position would want to know. Laparoscopic cholecystectomy is one of the most common general surgical procedures performed in the UK. Chronic diarrhoea is a well-recognised complication with significant impact on patient quality of life (QoL). We aimed to assess quality of consent forms for laparoscopic cholecystectomies with emphasis on documentation of chronic diarrhoea being a consequence of the procedure. Method A retrospective review of all elective laparoscopic cholecystectomy consent forms over a 2-month consecutive period from July 1st 2020 to August 31st 2020 was carried out. Results 43 consent forms were audited. The majority of these consent forms were done by consultants (74.4%: 32/43) while 23.2% (10/43) by registrars. Overall, 39.5% (17/43) of patients were consented for experiencing chronic diarrhoea. Registrars more commonly mentioned diarrhoea (60%: 6/10) compared to consultants (31.2%: 10/32). Conclusions The majority of patients undergoing laparoscopic cholecystectomy are not consented for post-cholecystectomy diarrhoea which is a significant QoL-altering complication. Education combined with a standardised consent form and issuing of patient leaflets will improve consenting for chronic diarrhoea.

856 Mortality and Morbidity Meetings in Oral and Maxillofacial Surgery: Hindsight is 20/20

Abstract Aim Mortality and Morbidity (M&M) meetings form a critical part of clinical governance however they often suffer from hindsight bias and lack objectivity. To combat this, Kahoot surveys were disseminated to senior clinicians prior to M&M meetings. Each case to be discussed is presented as a survey item with the clinical and radiographic information that was available to the performing surgeon pre-operatively and participants are asked to detail their ideal treatment. The aims of this study were to determine if the introduction of Kahoot surveys prior to M&M meetings improves the objectivity of the discussions and reduces the effects of hindsight bias. Method A 12-item questionnaire relating to the introduction and utility of Kahoot surveys prior to M&M discussions was distributed to all registrars and consultants within our department. Result An 80% response rate was obtained (16/20 responses). Prior to the introduction of Kahoot surveys, 62.6% of surgeons felt case discussions were clouded by the benefit of hindsight. Comparatively, 68.8% indicated the use of pre-M&M surveys reduced the effects of hindsight bias. 56.3% of participants expressed the objectivity of case discussions improved and 50% felt the quality of feedback improved. Conclusions The use of Kahoot surveys prior to M&M meetings demonstrates that withholding the case outcome until each clinician has given their own opinion reduces the effect of hindsight bias. The surveys utilise the Bolam Test, thereby enabling us to determine the correct error classifications with greater objectivity. Furthermore, they facilitate a higher quality of discussion and feedback.

Responsible Practice or Restricted Practice? an Empirical Study of the Use of Clinical Guidelines in Medical Negligence Litigation.

In medical negligence litigation, the standard for breach of duty is measured against the Bolam test which reflects accepted practice. Despite protracted debate and common law development, the Bolam standard remains the touchstone for litigation in this area. Clinical guidelines (CGs) are statements based upon best available medical evidence and are designed to facilitate clinical decision-making to optimise outcomes thereby reflecting expected practice. Nevertheless, there is little research that considers how CGs engage in litigation and their influence on judicial reasoning. Given the increasing pressures on the NHS amid rising costs of litigation, these are important issues. This study provides an original contribution to the literature on CGs in determining breach of duty in law. Using a mixed methods' approach, data from multiple sources have been gathered and analysed to assess the use of CGs by lawyers and the courts thereby adding to the discourse on the judicial shift away from deference to Bolam. It concludes by offering a conceptual basis for the use of CGs within a framework for reasonableness and promotes their principled use while avoiding constraints on expert testimony, experience, and exercise of clinical discretion. This study has relevance for academics, legal and medical practitioners, and policy makers.

Medical negligence and diagnosis: further inroads into Bolam?

The Bolam test allows medical professionals to set the standard of care in medical negligence litigation. There is growing recognition that the medical professional’s duty to the patient is complex and multifaceted and that Bolam may not be appropriate with respect to some aspects of the duty. Significantly, it has been rejected with respect to the duty to inform. Recent cases involving diagnosis and cancer screening raise questions about its application to these aspects of the medical professional’s duty. It is timely to consider further inroads into Bolam by curtailing its application to diagnosis and rejecting its application to screenings tests.

Medical Duty to Advise: Legislating the Standard of Care

The standard of care of doctors in medical negligence cases is determined by the Bolam test, according to which doctors are not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion. This is known as the peer professional test. While this test is suitable to the duty to diagnose, treat, and advice, it poses challenges for the duty to inform patients of risks in proposed treatment and alternatives. Most common law jurisdictions have rejected the peer professional test and adopted the prudent patient test, according to which doctors are obliged to disclose information on risks to which a a reasonable patient would attach significance. Much of the discourse is driven by notions of patient autonomy, which has strained the doctor-patient relationship and put doctors on the defensive as they do not control the information that should be disclosed. Singapore recently amended the Civil Law Act (Cap 43, 1999 Rev Ed) to reinstate the peer professional test for the duty to inform. This paper reviews the law on the standard of care in medical negligence, and analyses the new section 37 of the Civil Law Act. It identifies some potential challenges in applying the new law.

Medicine, Court and Logical Sense

In teaching the rudiments of the 1957 Bolam test as ‘reined’ in by the Bolitho principle, it is invariable for at least one student to ask “is it not obvious that explanations must make logical sense to the Court?” Which invariably raises the point in my mind, “The question should be: The Bolitho principle demands that Bolam oriented statements makes logical sense to whom? Is it to the Court? Is it to any independent observer?”

National survey of UK Dermatologists demonstrates significant variation in how to obtain consent for dermatological procedures.

Consent must be undertaken prior to any dermatological procedure; however, in doing this, the clinician needs to ensure consent is valid and satisfies the principles of determining material risk. We aimed to assess variations in obtaining consent in the UK andunderstanding of material risk through a nationally distributed survey to members of the British Society for Dermatological Surgery and British Association of Dermatologists. Of 165 responses, we found that written consent was being obtained for all procedures in 73.9% of cases and typically at the time of procedurein the operating room/theatre (78.8%). Fifty-seven per cent of respondents were not familiar with the term 'material risk' and almost one-third were not aware of the Montgomery vs. Lanarkshire ruling, which replaced the Bolam test in 2015. We would encourage readers to be aware of these changes to consent law in the UK and how it might affect their approach toobtainingconsent.

Principles of Medical Negligence: An Overview of the Legal Standard of Care for Medical Practitioners in Civil Cases

Medical negligence can result in dire consequences or even death of the victims in extreme cases. Despite the proliferation of literatures on this subject, the level of awareness still remains inadequate especially in Nigeria and has stalled the development of this area of law. In determining whether a medical practitioner’s conduct amounts to negligence, the courts have in the past relied on what is called the Bolam test. However, the UK Supreme Court recently appeared to have modified Bolam in the case of Montgomery v Lanarkshire Health Board, by introducing a general duty on doctors to disclose risk(s) inherent in any treatment. Rather than being a matter for clinical judgement to be assessed by professional opinion, a patient is entitled to know whatever risks he assumes in order to give an informed consent to the treatment. The modification of Bolam became necessary because it was said to constitute a barrier to innovative medical practice. This article examines the legal principles of medical negligence in Nigeria and examines whether Bolam is still a good law after Montgomery.

At a Cross-roads? The Courts' Shifting Apprehension of the Vulnerability at Stake in the Lay-Healthcare Provider Relationship

Few would deny that there is an important difference between the choices that a healthcare professional is meant to empower and those at stake in a mountain expedition. The problem is that the courts’ overwhelming focus on information disclosure has obscured what mere disclosure cannot achieve: allowing patients to retain some active involvement - and hence a sense of authorship - in the decision-making processes that are likely to shape their sense of self for some time to come. Section 1 starts by explaining why such empowerment matters. It does so by considering afresh Parsons’ sociological account of illness. Hugely influential, the latter account has unfairly been interpreted as backing the ‘epistemic inequality demanding paternalism’ stance encapsulated in the Bolam Test. Section 2 outlines why Montgomery -which limits the scope of the Bolam test- may be deemed a missed opportunity, because of its continued focus on epistemic vulnerability. This narrow focus leads to a regulatory intervention - removing information disclosure from the sphere of medical discretion - that is ill-suited to the end it seeks to achieve (patient empowerment). In contrast, section 3 shows both the transformative potential inherent in the Courts’ recent delineation of a ‘duty to consult’ and the extent to which such transformation cannot stem from judicial intervention alone. Grassroots reflection - and activism across the whole of the professional community - is key to re-imagining how health practices (not just health law) may live up to the responsibility concomitant with the vulnerability described in section 1.