Law of Torts
The Professional Duty of Care: Doctors, Hospitals, Lawyers and Accountants, and the Bolam Standard as Qualified
A professional is judged by the standard of his profession and not of the ordinary man, and not by the standard of the most eminent member of it. The test is the ordinary competent practitioner exercising and professing to have that skill. The Bolam test protects a practitioner who acted in accordance with a practice accepted as proper by a responsible body of professional opinion, even though others would have taken a different view. Bolitho qualifies it: that body of opinion must itself withstand logical analysis, so Bolam is a defence and not an abdication by the court. In India both are applied, and Jacob Mathew adds that criminal liability requires gross negligence.
Bolam, the Bolitho qualification, the Indian position, and the professions
1. The Standard
- The test is that of the ordinary competent member of the profession, exercising and professing to have that special skill.
- It is not the standard of the highest expert. A practitioner is not negligent merely because a more eminent colleague would have done better.
- Nor is it the standard of the ordinary man. A person who does not profess the skill is judged by what a reasonable person would do; a person who does profess it is judged by what a competent practitioner would do.
- A specialist is judged by the standard of a specialist in that field.
- Inexperience is no defence. A newly qualified practitioner holds himself out as competent and is judged accordingly, which is the professional equivalent of the learner driver rule.
2. The Bolam Test
📖 Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 Facts The plaintiff, a voluntary patient at a mental hospital, was given electro convulsive therapy. He was not given relaxant drugs and was not manually restrained beyond the support of his chin and shoulders. He sustained fractures. Medical opinion was genuinely divided both on the use of relaxants, which carried risks of their own, and on the desirability of restraint. Held The hospital was not negligent. Ratio A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. He is not negligent merely because there is a body of opinion that would take a contrary view. Where there are two or more accepted schools of thought, following one of them is not negligence. |
3. The Bolitho Qualification
📖 Bolitho v. City and Hackney Health Authority [1998] AC 232 Facts A two year old child in hospital suffered episodes of respiratory difficulty. The doctor was summoned and negligently failed to attend. The child later suffered cardiac arrest and severe brain damage. The doctor said that even if she had attended she would not have intubated, and a body of professional opinion supported that decision. Held The claim failed on causation, but the House of Lords qualified Bolam in important terms. Ratio The court is not bound to hold a defendant not negligent simply because a body of professional opinion supports his conduct. That body of opinion must itself be capable of withstanding logical analysis, and must demonstrate that the practitioners had directed their minds to the comparative risks and benefits and had reached a defensible conclusion. In a rare case a court may conclude that a professional practice is not reasonable or responsible. |
4. The Indian Position
The decision | What it established |
Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651 | Medical services fall within the definition of "service" under the consumer legislation, so a patient may proceed before a consumer forum as well as by a civil suit |
Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 | Bolam applies in India. For criminal liability the negligence must be gross, or of a very high degree, and the Court laid down procedural safeguards before a doctor is prosecuted |
Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 | Restated the principles governing medical negligence, and cautioned that an unduly exacting standard would encourage defensive medicine to the detriment of patients |
- The safeguards in Jacob Mathew are worth knowing precisely: a private complaint should not ordinarily be entertained unless supported by a credible opinion from another competent doctor; the investigating officer should obtain an independent and competent medical opinion, preferably from a doctor in government service; and a doctor should not be arrested routinely unless it is necessary for furthering the investigation or for collecting evidence.
- A patient therefore has three routes in India: a civil suit in negligence, a complaint before a consumer forum, and, where the negligence is gross, a criminal prosecution.
5. The Three Duties of a Doctor
1. A duty of care in deciding whether to undertake the case. A practitioner who lacks the competence to treat a condition should decline and refer.
2. A duty of care in deciding what treatment to give. The choice must be one a responsible body of opinion would support.
3. A duty of care in the administration of that treatment. This is where most claims arise, and where res ipsa loquitur is most often invoked.
4. And a fourth, added by the modern law: a duty to warn of the material risks of a procedure, so that the patient's consent is informed. A failure to warn is a claim in negligence even where the treatment itself was faultlessly performed.
5. An error of judgment is not by itself negligence. A reasonable choice between courses a responsible body would accept is not negligent because the outcome was bad.
6. Hospitals
- Vicarious liability for the negligence of doctors, nurses and other staff whom the hospital employs, committed in the course of their employment.
- Personal liability for a failure of organisation: inadequate staffing, defective or missing equipment, an unsafe system, or a failure of the systems that should have prevented the error.
- The distinction matters where the practitioner is not an employee, as with a consultant with admitting privileges, because vicarious liability may then not arise and the claim must be put on the organisational footing or against the practitioner personally.
- A hospital cannot escape by pointing to the independence of the clinician where the failure lay in the arrangements the hospital itself was responsible for.
7. Lawyers, Accountants and Others
The profession | The duty, and its limits |
Lawyers | Reasonable care and skill in advising and in the conduct of the matter, judged by the ordinary competent practitioner. An error of judgment on a difficult point of law is not negligence. Advocacy in court has historically attracted a degree of immunity |
Accountants and auditors | A duty to the client under contract and in tort. To third parties, only where responsibility is assumed: Hedley Byrne v. Heller [1964] AC 465, as confined by Caparo Industries v. Dickman [1990] 2 AC 605 |
Architects and engineers | Reasonable care and skill in design and supervision, judged by the ordinary competent practitioner in that discipline |
Valuers and surveyors | A duty to the person for whose guidance the valuation was prepared, and to a person the valuer knew would rely on it |
- Hedley Byrne v. Heller is the source of the modern liability for negligent misstatement causing purely economic loss, where the defendant assumes responsibility and the plaintiff reasonably relies.
- Caparo confined it. Auditors owe their statutory duty to the company, for the purpose of enabling the shareholders as a body to exercise informed control, and not to the investing public.
- The controlling question is the purpose for which the statement was made, and whether the defendant knew it would be communicated to this plaintiff for that purpose.
8. The Common Principle
⚠ The profession sets the standard; the court decides whether it is defensible Bolam is often stated as though it left the question of negligence to the profession. It does not, and Bolitho makes that explicit. The profession supplies the content of the standard, because judges are not qualified to say how an operation should be performed or an audit conducted. The court retains the decision whether the practice relied on is one a responsible body could logically have adopted. In the ordinary case the two coincide and the professional evidence decides the matter; in the rare case where a practice cannot be defended, the court says so. The Indian decisions add a second balance, expressed in Kusum Sharma: the standard must be strict enough to protect patients and not so exacting as to drive practitioners into defensive medicine, which protects nobody. |
9. The Position Stated Shortly
1. A professional is judged by the standard of the ordinary competent member of his profession, not of the ordinary man and not of the most eminent practitioner.
2. Inexperience is no defence, and a specialist is judged by the standard of a specialist.
3. Bolam: a doctor is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion.
4. Where there are two accepted schools of thought, following one of them is not negligence.
5. Bolitho qualifies Bolam: the body of opinion must withstand logical analysis, and the court retains the final decision.
6. Jacob Mathew applies Bolam in India, requires gross negligence for criminal liability, and lays down safeguards before a doctor is prosecuted.
7. Kusum Sharma restates the principles and warns against a standard that would encourage defensive medicine.
8. Indian Medical Association v. V.P. Shantha brings medical services within the consumer legislation.
9. A doctor owes duties in deciding whether to undertake the case, what treatment to give, and how to administer it, and a duty to warn of material risks.
10. A hospital is liable vicariously for its employees and personally for failures of organisation, and a professional adviser owes a duty to a third party only where responsibility is assumed.