The House of Lords decision in Bolitho (Bolitho

The House of Lords decision in Bolitho (Bolitho â€Å"The House of Lords decision in Bolitho (Bolitho v City and Hackney HA [1998] AC 232) is a belated and welcome departure from judicial deference to medical opinion but there is still too much deference and more has to be done†. Critically comment on the above statement. In any negligence claim, in order to succeed the claimant must show that he was owed a duty of care by the defendant, that the duty of care was breached, and that the breach of duty caused the damage complained of. [1] Kennedy and Grubb comment that the duty of care arises ‘from a request for medical services by an individual and a consequent undertaking by a doctor [or other health care professional] to provide these services. [2] Margaret Brazier has observed: ‘[a] patient claiming against his doctor †¦ usually has little difficulty in establishing that the defendant owes him a duty of care’. [3] The second stage of a clinical negligence action is to show that the doctor has br eached his standard of care. In any negligence claim, the standard of care is set by law and is an objective standard. [4] Words such as reasonable or responsible are normally attributed to such a standard. Such adjectives are not normally equated with a practice that is ‘common’ or ‘accepted’. With respect to medical negligence claims however, the law has not taken such a view. The case of Bolam v Friern Hospital Management Committee [5] has established that ‘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’. The Bolam case was a decision at first instance, but was later approved by the House of Lords in Whitehouse v Jordan . [6] The courts have continuously taken a protectionist view of the medical profession in clinical negligence claims. Jackson acknowledges that this could be due to the complexity of medical eviden ce, but it could also be explained by a sense of professional solidarity. [7] The medical profession has been highly regarded in society, and the courts have also expressed their respect. In Wilsher v Essex AHA , [8] Mustill LJ comments: â€Å"For all we know, [The doctors in this case] far surpassed on numerous occasions the standard of reasonable care. Yet it is said that for one lapse they (and not just their employers) are to be held liable in damages. Nobody could criticise the mother for doing her best to secure her son’s financial future. But has not the law taken a wrong turning if an action of this kind is to succeed?† It is interesting to note the difference in policy in cases involving medical professionals. In other negligence cases, the courts have commented that the function of the law of negligence (and the law of torts in general), is to compensate injured parties for loss. The judiciary have had no moral objections to awarding damages in cases where they can apply the ‘deepest pocket’ principle. Thus, in Nettleship v Weston , [9] Lord Denning had no problems in asserting that a learner driver would be held to the same standard of a competent driver (competent would be ascertained on an objective basis by the court), as the driver would be insured and thus, the law will award damages from the deepest pocket. Yet, there has been considerable hesitation in holding doctors negligent for public policy reasons, despite the fact that doctors will be also be insured. Furthermore, doctors working in the NHS will generally not be personally held accountable for the negligence – the action is brought against the Trust vicariously and NHS Trusts in England and Wales are part of an ‘insurance like’ scheme, the Clinical Negligence Scheme for Trusts (CNST) administered by the NHS Litigation Authority.