Bolam and identification of the “responsible body of medical men”

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The Bolam test in clinical negligence is simply stated.

‘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…’

Often a practice is being measured against a standard common to a large body of similar practitioners, or to a smaller body of specialists, and no real difficulty arises in identifying that standard.  But what if this is a new and developing area of medicine?  How then is the responsible body identified, and indeed is there one?

Some guidance to the court’s approach in such cases was given in Eckersley v Binnie [1988] 18 Con LR 1. There is was said that a doctor should:

  • Should not lag behind other ordinary assiduous and intelligent members of the profession in knowledge of new advances, discoveries and developments in his field
  • Should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill
  • Should be alert to the hazards and risks of any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert
  • Should bring to any professional task no less expertise, skill and care than other ordinarily competent members of his profession would bring

On the other hand a doctor need not “be a paragon combining the qualities of polymath and prophet”.

In Vernon v Bloomsbury Health Authority (1986) [1995] 6 Med LR 297 the dosage of a drug used on a patient exceeded the manufacturers guidelines, but was nonetheless found to be a proper one; the court found that the guidelines erred on the side of caution, and the use of a higher dosage in the circumstances of this patient was not negligent. Similarly although the duration of treatment was outside the same guidelines, the court accepted that it could not be contended that no reasonably competent cardiologist or microbiologist would have contemplated adopting this regime in the particular circumstances.  The doctors were acting in the best interests of the patient in so continuing therapy and had conformed with standards set by a considerable body of responsible and distinguished medical opinion, as represented by the defendant’s own expert witnesses.

In Sims v Sims [2002] EWHC 2734  the court found that there was a responsible body of professional opinion that supported an entirely innovative form of treatment (for Creutzfeld Jacob disease) hitherto untried and unvalidated, and that concluding that a responsible body supported such treatment was ‘consistent with the philosophy that underpins the Bolam test’.

As so often the Common Law (judge evolved law) is sufficiently flexible to do justice in appropriate situations, so long as a coherent, reasoned opinion is presented in reliable expert evidence from a suitably qualified expert to support a view.

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More on the consequences of changing experts

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In the recent case of Allen Todd Architecture Ltd v Capita Property & Infrastructure Ltd [2016] EWHC 2171 the claimant wished to substitute a new expert structural engineer, having lost confidence in the first such expert as a result of delays in production of the report. The claimant had disclosed to the defendant the letters of instruction and the original expert’s report but the defendant wanted the letter of instruction to the new expert and any report, document or correspondence with the original expert setting out that expert’s opinion, whether in draft or final form.

Although these additional documents are privileged, and although the judge did not regard the case of one of ‘expert shopping’ on the part of the claimant, the judge ordered disclosure of documents, such as draft and provisional reports and correspondence, containing the original expert’s opinion as a condition of granting permission to rely on the substitute expert.

From the authorities the judge derived the following principles:

(1)         The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence: that is consistent with both the general way in which CPR rule 35.4 (1) is expressed, and the wide and general nature of the court’s case management powers, in particular those set out in CPR rules 3.1 (2) (m) and 3.1 (3) (a).

(2)         In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed.

(3)           Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there is no justification for not disclosing such a report.

(4)         While the court discourages the practice of ‘expert shopping’, the court’s power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.  Where an expert had produced a report in the course or context of a relevant pre-action protocol process this was a critical or decisive factor, rather than there having been any instance of ‘expert shopping’.

(5)         The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of the original expert such as attendance notes and memoranda made by a party’s solicitor of his or her discussions with the original expert) as a condition of giving permission to rely on a substitute expert.

The judge went on to conclude that there was no difference in imposing a condition of disclosure of the previous Part 35 compliant report before granting permission for a substitute expert and requiring disclosure of any earlier draft of provisional report or other document produced by the original expert and containing the substance of the expert’s opinion on issues in the case.

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