Professional

Negligence.
• Professional negligence occurs when a professional (lawyer, insurance
broker, accountant, architect, realtor, financial advisor, etc.) fails to fulfill
the professional duties or obligations that they were hired by their clients
to fulfill.
• When someone agrees to perform professional services for someone else
who needs these services, the hired professional must exercise “reasonable
care” in providing these services.
• Branch of negligence law
• Rules generally apply to persons like a lawyer/doctor who relies on
his/her reputation and deserves special protection from unsubstantial
attack-these professions have the ability to self-regulate.
• Various aspects of the general principles of negligence apply.
• Reasonable care is defined as “the degree of caution and concern for the safety of
the self and others an ordinarily prudent and rational person would use in the same
circumstances.”
• This means that to avoid a claim of professional negligence, the professional must
adhere to the same standard of care that well-qualified professionals acting under
similar circumstances would.
• When a claim of professional negligence is filed, there are usually two methods
used to determine if the reasonable duty of care was followed: foreseeability tests
and multifactor tests.
 The General Rule- ‘Bolam Test’
Facts
• The defendant was the body who employed a doctor who had not given a mentally-ill
patient (the claimant) muscle-relaxant drugs nor restrained them prior to giving them
electro-convulsive therapy. The claimant suffered injuries during the procedure. The
claimant sued the defendant, claiming the doctor was negligent for not restraining
them or giving them the drug.
Issue
Establishing the tort of negligence involves establishing that the defendant breached
their duty of care to the claimant. To establish breach, the claimant must establish that
the defendant failed to act as a reasonable person would in their position. This standard
is higher in the case of professionals: they must act as a reasonable professional would.
Issue
• The issue in this case was how to assess the standard of care imposed on a professional defendant
where a substantial portion of professionals opposed a particular practice, while others did not.
Decision/Outcome
• The High Court held that the doctor had not breached his duty to the patient, and so the defendant
was not liable.
• McNair J set out the test for determining the standard of care owed by medical professionals to
their patients (sometimes referred to as the ‘Bolam test’). The professional will not be in breach
of their duty of care if they acted in a manner which was in accordance with practices accepted as
proper by a responsible body of other medical professionals with expertise in that particular area.
If this is established, it does not matter that there are others with expertise who would disagree
with the practice.
• As the methods used in this case were approved of by a responsible portion of the medical
profession, there was no breach.
 Exceptions to the
Exception to the ‘General Approved Practices’ Defence
general rule.
-There is an exception to the general approved practice defence where the practice followed is inherently
defective.
-Exception referred to in Peilow(Roches V Peilow) where the defendant was ultimately deemed negligent for
failing to make a search of the companies register prior to conclusion of a property sale with a Vendor building
company.
-O’Donovan v Cork Co. Council 1967, the Ct held that if there is a common practice which has inherent defects
which ought to be obvious to any person giving the matter due consideration, the fact that it is widely and
generally adopted over a period of time does not make the practice any less negligent.
-The principles of causation and remoteness of damage apply to professional negligence in the usual
way ;insufficient proof of causation, especially in complex medical negligent cases, frequently means the
Plaintiff’s case is dismissed.
 Informed Consent?
• Informed consent
• The principle of informed consent has been established from the
recognition that every individual has the right to decide what treatment
they wish to receive and the right to refuse treatment even in cases where
the treatment might be essential to the preservation of their life. According
to an article published by the Department of Health in 1990 patient’s have
the right to refuse treatment or withdraw previously give consent. In the
paper the DOH commented that
• “Subject to certain exceptions the doctor or health professional and/or health authority may face an
action for damages if a patient is examined or treated without consent”
• In a paper published by the General Medical Council in 1999 entitled Seeking patients’ consent: the
ethical considerations the GMC commented on the importance of informed consent stating that
• “Successful relationships between doctors and patients depend on trust. To establish that trust you
must respect patients’ autonomy—their right to decide whether or not to undergo any medical
intervention . . .”(They) . . . must be given sufficient information, in a way that they can understand,
in order to enable them to make informed decisions about their care.”
• Doctors that fail to obtain informed consent from a patient can face claims for negligence and
further sanctions from the GMC. Where the GMC feel that the negligence warrants such measures
they have the power to remove a doctor or medical practitioner from the register essentially
stopping these persons from being able to continue in their profession. In general terms a patient can
either claim battery if they can prove that the procedure was performed without their consent or they
can claim for negligence if they can show that the information they were given was insufficient for
them to be able to give informed consent. In Chatterton v Gerson [1981] the court stated that the
amount of information they regarded as ‘reasonable’ was to be determined with regard to the
choices available to the patient.
 Some takeaways from Bolam.
• What are your take aways from the Bolam case?
MEDICAL NEGLIGENCE
 Sidaway v Board of Governors of the Bethlem
Royal Hospital and the Maudsley Hospital
• Plaintiff(P) underwent an operation that carried a 1% chance of paralysing
the patient. Defendant(D) didn’t warn P of this and P was paralysed. She
sued D for negligence. HL said that the Bolam test was to be applied in
deciding whether the doctor was negligent in not disclosing the risks. In this
case there was a reasonable body of professional opinion that would not
have told D of the risk. However there were cases where the risk of grave
injury was “substantial” and in that case, even if there was a reasonable body
of opinion that would not disclose, the judge could find that such non-
disclosure was negligent (unless there was a special reason e.g. emergency). 
• In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle.
Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible
complications. In his summing up he stated
• “The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the
direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor
it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be
voluntarily warned and the terms in which such warning, if any, should be given, having regard to the
effect that the warning may have, is as much an exercise of professional skill and judgment as any other
part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on
this matter should be treated in just the same way. The Bolam test should be applied.”
• Lord Templeman went further in affirming the fact that there are times when the doctor’s
would be justified in not warning a patient of the inherent risk. In his speech he stated
• “I do not subscribe to the theory that the patient is entitled to know everything nor to the
theory that the doctor is entitled to decide everything…The doctor, obedient to the high
standards set by the medical profession impliedly contracts to act at all times in the best
interests of the patient. No doctor in his senses would impliedly contract at the same time
to give to the patient all the information available to the doctor as a result of the doctor’s
training and experience and as a result of the doctor’s diagnosis of the patient. An
obligation to give a patient all the information available to the doctor would often be
inconsistent with the doctor’s contractual obligation to have regard to the patient’s best
interests. Some information might confuse, other information might alarm a particular
patient. Whenever the occasion arises for the doctor to tell the patient the results of the
doctor’s diagnosis, the possible methods of treatment and the advantages and
disadvantages of the recommended treatment, the doctor must decide in the light of his
training and experience and in the light of his knowledge of the patient what should be
said and how it should be said.
• Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor
to withhold information from a patient. Cases such as this one demonstrate the reluctance
of the courts to reject the principles established by Bolam.
• In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho
v City and Hackney Health Authority. In this case Lord Browne-Wilkinson reminded the
court that they are
• “not bound to hold that a defendant doctor escapes liability for negligent treatment or
diagnosis just because he leads evidence from a number of medical experts who are
genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound
medical practice”.
• In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole where the
doctor was found to be negligent in not treating the patient with penicillin despite several
other medical practitioners also stating that they would not have used penicillin to treat
the patient. It was the contention of Lord Browne-Wilkinson that
• “The court must be vigilant to see whether the reasons given for putting a patient at risk
are valid in the light of any well-known advance in medical knowledge, or whether they
stem from a residual adherence to out-of-date ideas.”
 (Bolam Challenged in )Bolitho v City and Hackney Health
Authority [1998] AC 232
Facts
• A child was brought to a hospital suffering from breathing abnormalities. The doctor summoned to
deal with the matter never received the summons due to a low battery on her bleep. The child died
as a result. The child’s mother sued for negligence, arguing that the child should have been seen and
intubated.
• Issues
• Establishing the tort of negligence involves establishing that the defendant breached their duty of
care to the claimant. The case of Bolam v Friern Hospital had established that professionals will
not be in breach of their duty if they acted in accordance with practices accepted as proper by a
responsible body of other medical professionals with relevant expertise. In addition, the claimant
must show that but for the breach, the harm would not have arisen (causation).
• The doctor testified that they would not have intubated the patient even if they had attended, and an
expert witness agreed this was proper. The issue is whether this satisfied the Bolam test, and
whether causation was established.
• Decision/Outcome
• No liability.
• The House of Lords held that it is not possible for a defendant to argue that a breach did not
cause the harm, because but for the breach, some other breach would have been committed. As
such, it was necessary to assess whether the doctor would have been in breach if they had
attended and not intubated the child.
• The House of Lords clarified the Bolam test to include a proviso that the practice accepted as
proper by a responsible body of professionals must be based on logical and defensible grounds.
• In this case, refusing to intubate the child was not illogical, and so there was no breach.
• Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health
Authority. In this case Lord Browne-Wilkinson reminded the court that they are
• “not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because
he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s
treatment or diagnosis accorded with sound medical practice”.
• In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole where the doctor was found to be
negligent in not treating the patient with penicillin despite several other medical practitioners also stating that
they would not have used penicillin to treat the patient. It was the contention of Lord Browne-Wilkinson that
• “The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light
of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-
date ideas.”
 Hucks v Cole(1968)
• A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward.
She was suffering from septic spots on her skin though he knew them to contain
organisms capable of leading to puerperal fever. Several distinguished doctors gave
evidence that they would not, in the circumstances, have treated with penicillin.
Held: The defendant was negligent. There was a lacuna in professional practice and
that the defendant had knowingly taken an easily avoidable risk which elementary
training had instructed him to avoid. As, in the court’s judgment, there was no
proper basis for the practice of not giving penicillin it was not reasonable for the
medical practitioner to expose his patient to that risk.
 What about negligence in diagnosis?
Dunne v National Maternity Hospital (1989)
Facts;
- This case concerned practice of monitoring one foetal heartbeat only in cases of twins.
-Here one twin suffered severe brain damage and the other was
delivered dead.
-High court awarded over £1 million and held deviation from an approved
practice was negligent.
-Supreme Crt set out the relevant circumstances to consider in cases of diagnosis and treatment;
Dunne Principles;
-The standard regarding diagnosis and treatment is that the practitioner must act with reasonable care expected of
practitioner of equal specialist or general status and skill.
-The Courts will have regard to the general and approved practice which need not be universal but is adhered to by a
substantial number of practitioners.
If a practitioner deviated from general and approved practice the Plaintiff must further establish that the course in fact
taken by the Defendant was “one which no medical practitioner of like specialisation and skill would have followed had
he been taking the ordinary care required from a person of his qualifications.”
An honest difference of opinion between two ways of treating patient is not negligence because doctor followed one
course.
A practitioner follows a practice with inherent
•If, however, a practitioner follows a practice with inherent obvious defects, following that practice is not a defence to
negligence
-It is clear from Dunne that it can be very difficult for P to establish medical negligence
-There have been a number of successful claims and findings of medical negligence
 Diagnosis…..continuation.
• In cases of diagnosis and treatment there are cases where, despite a body of professional
opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for
negligence.
Sachs LJ said: ‘When the evidence shows that a lacuna in professional practice exists by
which risks of grave danger are knowingly taken, then, however small the risk, the court
must anxiously examine that lacuna-particularly if the risk can be easily and inexpensively
avoided. If the court finds, on an analysis of the reasons given for not taking those
precautions that, in the light of current professional knowledge, there is no proper basis for
the lacuna, and that it is definitely not reasonable that those risks should have been taken,
its function is to state that fact and where necessary to state that it constitutes negligence.
…..in such a case the practice will no doubt thereafter be altered to the
benefit of patients. On such occasions the fact that other practitioners would
have done the same thing as the defendant practitioner is a very weighty
matter to be put on the scales on his behalf; but it is not, as Mr. Webster
readily conceded, conclusive. The court must be vigilant to see whether the
reasons given for putting a patient at risk are valid in the light of any well-
known advance in medical knowledge, or whether they stem from a residual
adherence to out-of-date ideas.’
• Questions.