- Published on
KembaraXtra-Bolitho v City and Hackney HA (1997)
Key Principle
The court retains the power to determine that a practice, even if supported by a body of medical opinion, is not proper if that opinion lacks a logical basis. This case refines the Bolam test.
Facts and Decision (Combined)
Key Principle
The court retains the power to determine that a practice, even if supported by a body of medical opinion, is not proper if that opinion lacks a logical basis. This case refines the Bolam test.
Facts and Decision (Combined)
- Lord Browne-Wilkinson stated that the court is not obligated to absolve a doctor from negligence simply because some medical experts agree with the doctor's actions.
- Experts supporting a medical opinion must demonstrate a logical basis for that opinion, including a consideration of comparative risks and benefits.
- The court must be satisfied that experts have logically weighed comparative risks and benefits.
- Judges shouldn't lightly dismiss genuinely held views of competent medical experts.
- A judge can only reject a body of expert opinion if it is demonstrably illogical and cannot be supported.
- Bolam Test Pre-Bolitho: Before Bolitho, the Bolam test (as articulated by Lord Scarman in Sidaway) stated a doctor is not negligent if acting in accordance with a practice accepted as proper by a responsible body of medical opinion, even if other doctors disagree.
- Bolitho's Impact: Bolitho is viewed as either a clarification or a caveat to the Bolam test. It emphasizes the need for a logical basis for the medical opinion.
- Trend: Bolitho aligns with a trend toward less deference to the medical profession in negligence cases.
- Pre-Bolitho Examples: The text mentions several cases prior to Bolitho where the court ruled against accepted medical practice: Hucks v Cole (1994) CA (decided in 1968), Newell and Newell v Goldenberg (1995), and Smith v Tunbridge Wells HA (1994).
- Judicial Reluctance: Courts remain generally reluctant to deem a medical opinion unreasonable.
- Wisniewski v Central Manchester HA (1998): Illustrates the reluctance of appeal courts to overrule medical opinion. The Court of Appeal overturned a High Court decision that had found expert evidence logically unsupported.
- Marriott v West Midlands HA (1999): This case is interpreted as an example of Bolitho making a difference, though this view is debated.
- Bolitho refines Bolam: It adds a "logical basis" requirement.
- Burden of Proof: The claimant must demonstrate that the expert medical opinion supporting the defendant's actions is illogical.
- Judicial Restraint: Courts are generally hesitant to overrule medical opinions.
- Focus on Reasoning: The reasoning behind the medical opinion is now crucial.
0 Comments