Law of Torts
Medical Negligence and Error of Judgment: Why Not Every Mistake Is a Breach of Duty
Medicine is practised on incomplete information, under pressure of time, on bodies that do not behave uniformly. A decision that turns out badly is not for that reason a careless one, and the law does not ask whether the doctor was right. It asks whether the course he took was one that a reasonably competent practitioner could have taken on the material then available. An error of judgment within that range is not negligence. The difficulty, and the whole of the litigation, lies in distinguishing a genuine judgment from an omission dressed up as one.
1. The Comparison
An error of judgment | Medical negligence | |
What happened | A choice was made on the material available, between courses each of which a competent practitioner might take | The practitioner departed from the ordinary skill of an ordinary competent member of that art |
When it is judged | On what was known or knowable at the time | On what was known or should have been known at the time |
The role of hindsight | Irrelevant. That the choice proved wrong does not make it careless | Irrelevant. That the outcome was good does not excuse a departure |
Did he consider the alternatives | Yes. The error lies in the weighing | Often not. The failure lies in not considering at all |
Professional support | A responsible body of opinion would have done the same | No responsible body would have done it |
Result | Not negligent | Negligent |
Who bears the outcome | The patient | The practitioner, in damages |
2. The Rule
- An error of judgment is not necessarily negligent. Whether it is depends on whether it was the kind of error that a reasonably competent professional, acting with ordinary care, might have made.
- Whitehouse v. Jordan, [1981] 1 WLR 246 states the position: to say that something is an error of judgment tells one nothing by itself. If a surgeon fails to exercise the care and skill of an ordinary competent surgeon he is negligent, whether or not his failure is described as an error of judgment; and if he does exercise that care and skill, an error he makes is not negligent.
- The enquiry is therefore not into the label but into the standard, and the phrase "error of judgment" is a conclusion rather than a test.
- Kusum Sharma v. Batra Hospital, (2010) 3 SCC 1 applies the same approach in India: a medical practitioner is not liable merely because a better alternative course or method of treatment was available, or because a more skilled doctor would not have chosen to follow or resort to that practice.
- The standard is judged prospectively, on the information available at the time, and the temptation to reason from the outcome backwards is the commonest error in this area: an operation that went wrong looks negligent in a way it did not look at the moment of decision.
3. Where the Line Is Actually Drawn
This is ordinarily a judgment | This is ordinarily a failure |
Choosing between two accepted treatments, each supported by a responsible body of opinion | Not taking a history, so that the choice was made without the material on which any judgment depends |
Assessing a borderline clinical picture and reaching a conclusion another competent doctor might not have reached | Not examining the patient, or examining so cursorily that the obvious was missed |
Deciding the timing of an intervention where the balance of risk genuinely cuts both ways | Not ordering an available and indicated investigation, so that a diagnosis that was within reach was never made |
Selecting a surgical approach from among those in accepted use | Not obtaining consent, or obtaining it for one procedure and performing another |
Weighing the risks of anaesthesia in a patient with several comorbidities | Not referring when the case was beyond the practitioner's competence or the institution's facilities |
Deciding not to intervene where a responsible body would also have waited | Not attending when called, or not attending with reasonable promptness |
- The distinction is that a judgment presupposes that the practitioner turned his mind to the question. Where he did not, because he did not take the history, did not examine, or did not investigate, there was no judgment at all, and calling the omission one does not make it so.
- The second column is where the cases are actually lost, and a defence that begins by characterising an omission as a clinical decision usually fails on the evidence, because the notes show that the question was never considered.
4. The Related Doctrines
- Res ipsa loquitur. Where the occurrence itself bespeaks carelessness, a swab left in the abdomen, an operation on the wrong limb, a burn from equipment, no question of judgment arises and the defendant must explain: TORT 127.
- The Bolam test with the Bolitho qualification. The practice relied on must be accepted by a responsible body of opinion which has weighed the risks and benefits and reached a defensible conclusion: TORT 129.
- Consent. Samira Kohli v. Dr. Prabha Manchanda, decided 16 January 2008, holds that consent must be real and valid, that the extent of disclosure is governed by the Bolam test in India, and that consent given for a diagnostic procedure is not consent for therapeutic treatment. The absence of consent is a battery and is not an error of judgment at all: TORT 043 and TORT 064.
- Causation. Even a proved departure fails if the outcome would have been the same, which is why Bolitho itself was decided against the claimant: TORT 122.
- The criminal threshold. A lapse sufficient for a decree is not sufficient for a prosecution, which requires gross negligence: TORT 131.
5. What the Practitioner Should Have in the Record
- The history taken and the examination performed, because a judgment cannot be defended unless the material it rested on is recorded.
- The differential diagnosis considered, which is what distinguishes a weighed decision from an omission.
- The investigations ordered, and the reasons for any not ordered, since the absence of an indicated test is the commonest single allegation.
- The alternatives discussed and the basis of the choice, which is the evidence that a judgment was in fact exercised.
- The information given to the patient and the consent obtained, identifying the procedure consented to.
- The instructions on discharge and the arrangements for follow up, a failure of follow up being a failure of the system rather than of judgment.
- Contemporaneous notes are decisive. A defence that rests on a recollection of what must have been considered, unsupported by the record, rarely survives cross examination, and an incomplete record is itself evidence that the question was never addressed.
6. Why the Law Protects the Judgment and Not the Omission
- Medicine advances by the exercise of judgment under uncertainty, and a rule that penalised wrong choices rather than careless ones would be a rule against taking difficult cases at all.
- Defensive practice harms patients. A practitioner who orders every conceivable investigation, refers every difficult case and declines every uncertain intervention imposes delay, cost and risk on the people the rule is meant to protect.
- But the protection has a precondition, namely that a judgment was actually exercised. The reason the law defers to clinical decisions is that they are decisions, made by the person best placed to make them on the information before him.
- Where nothing was decided there is nothing to defer to. A practitioner who did not take a history is not exercising a judgment about whether a history was necessary; he simply did not take one, and the deference has no application.
- That is why the distinction is worth insisting on: it marks the boundary of a protection that is valuable within its proper field and indefensible outside it.
⚠ The commonest way this defence is lost A practitioner faced with an allegation of negligence will very often, and quite honestly, reconstruct the episode as a series of decisions: he considered infection and thought it unlikely, he weighed admission against discharge and formed a view, he thought about imaging and judged it unnecessary. In many cases that is a truthful account of a reasonable clinical process, and if the notes bear it out the defence succeeds. The difficulty is that the reconstruction is made years afterwards with full knowledge of the outcome, and it will be tested against a record made at the time by a person who had no idea the case would ever be examined. Where the record shows a history not taken, an examination not documented, an abnormal result not acted on or a differential diagnosis never written down, the reconstruction collapses, and what was offered as a judgment is exposed as a gap. The practical lesson runs in the opposite direction from the one usually drawn: the protection the law gives to clinical judgment is real and substantial, but it is available only to a practitioner whose contemporaneous record shows that a judgment was made, which means that careful note keeping is not a defensive formality but the precondition of the defence itself. |
7. The Position Stated Shortly
1. The law does not ask whether the doctor was right, but whether the course taken was one a reasonably competent practitioner could have taken.
2. An error of judgment is not necessarily negligent, and the phrase is a conclusion rather than a test.
3. Whitehouse v. Jordan holds that the label is immaterial: if he failed to exercise the care and skill of an ordinary competent surgeon he is negligent whatever it is called.
4. Kusum Sharma holds that a practitioner is not liable merely because a better alternative existed or a more skilled doctor would have chosen differently.
5. The standard is judged on the information available at the time, and reasoning backwards from the outcome is the commonest error in this field.
6. Choosing between accepted treatments, assessing a borderline picture and timing an intervention are genuine judgments.
7. Failing to take a history, to examine, to investigate, to obtain consent, to refer or to attend are not judgments at all.
8. A judgment presupposes that the practitioner turned his mind to the question, and where he did not there is nothing to defer to.
9. Res ipsa loquitur, the absence of consent and a failure of causation each operate independently of any question of judgment.
10. The defence depends on the contemporaneous record, and an incomplete note is itself evidence that the question was never addressed.