Unpacking Bolitho: When the “Bolam Test” Requires Logical Analysis
In the realm of medical negligence cases, the “Bolam test” established in Bolam v Friern Hospital Management Committee [1957] has long been the guiding principle for determining if a healthcare provider breached their duty of care.[1] However, the 1997 case of Bolitho v City and Hackney Health Authority introduced a crucial caveat that legal and medical professionals must understand.
The Bolam Test Revisited
As a refresher, the Bolam test states that a doctor is not negligent if they acted in accordance with practices accepted as proper by a responsible body of medical opinion at the time.[1][2] This test acknowledges that there may be differing views among competent medical experts on appropriate treatment.
Bolitho’s “Logical Analysis” Requirement
In Bolitho, the court ruled that it’s not enough for a doctor’s actions to simply align with a responsible body of medical opinion. That opinion must also be capable of withstanding logical analysis and be defensible in terms of weighing the risks and benefits of treatment options.[3][4]
Lord Browne-Wilkinson stated in Bolitho:
“The court has to be satisfied that the exponents of the body of opinion acted in accordance with a practice of competent persons in charge of the patient’s case…such opinion cannot be logically indefensible.”[3]
Applying Bolitho in Practice
So what does this mean in practical terms? The Bolitho exception requires judges to scrutinize and logically analyze the reasoning behind a medical expert’s opinion, rather than just accepting it at face value because it represents a responsible body of opinion.[2][4]
For example, if an expert’s opinion fails to adequately consider relevant risks, benefits, or alternative treatments, it may be deemed logically indefensible and fall under the “Bolitho exception” to the Bolam test.
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This nuanced addition has significant implications for both expert witnesses and legal professionals involved in clinical negligence cases. Experts must be prepared to rigorously defend the logical underpinnings of their opinions, going beyond simply stating it aligns with peers.[2] Lawyers, in turn, must develop strategies to effectively challenge opinions that may not withstand logical scrutiny under Bolitho.
The conference with counsel is an important stage of the litigation process that can often make or break a case.
In our free guide, we’ll take you through the purpose of the meeting and your role as a medical expert witness. We’ll share our top tips to help you prepare for the meeting and fulfil your role effectively.
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Explore our upcoming courses at https://www.inspiremedilaw.co.uk/expert-witness-training/ [5] and elevate your medico-legal expertise today.
Citations:
[1] https://www.inspiremedilaw.co.uk/sitemap/
[2] https://www.inspiremedilaw.co.uk/the-latest-on-bolam-is-dead/
[3] https://twitter.com/InspireMedilaw/status/1565414305331388416
[4] https://www.inspiremedilaw.co.uk/the-legal-tests/bolam-dead-long-live-bolam