PROPOSAL

Proposal

Topic Name

Bolitho test: The Litmus For The Medical Negligence Law

Chapter 1

Background of the Study

A definition of negligence in English law may be described as any conduct that falls short of the standard expected of a person where a duty of care is owed and which causes foreseeable damage to another person. In order to establish negligence the plaintiff must prove the defendant owed the plaintiff a duty of care, and if so the defendant breached this duty and failed to conform to the standard of care required. Finally it must be proven that the plaintiff suffered injury or loss as a result of the defendants actions either directly or as part of this transaction and causation requirements would have to be established , in this case causation is where a direct link has to be proven that the harm caused was the direct result of the negligence. Therefore, in relation to medical negligence the suggestion that the 'doctor knows best' led Lord Wolf (2001) to comment that the courts would no longer apply a deferential view to this meaning that the medical fraternity should be more open to scrutiny with regards to their decision making. Therefore, in order to gain some clarification as to where this idea of the 'doctor knows best' philosophy it may well be pertinent to look back into the history of negligence law.

Purpose of the study

An absolutely crucial constituent of an activity in negligence against a medical practitioner is verification that the medical practitioner failed to supply the needed benchmark of care under the circumstances. Traditionally the benchmark of care in regulation has been very resolute as asserted by the Bolam test. This is founded on the standard that a medical practitioner does not break the lawful benchmark of care, and is thus not negligent, if the perform is sustained by a to blame body of alike professionals. The Bolam standard, although, has been seen as being excessively reliant upon health testimony carrying the defendant. The judgment granted by the House of Lords in the latest case of Bolitho enforces a obligation that the benchmark declared should be supported on a ordered cornerstone and should have advised the dangers and advantages of vying options. The effect of Bolitho is that the court will take a more enquiring stance to check the health clues suggested by both parties in litigation, in alignment to come to its own conclusions. Recent case regulation displays how the court has directed the Bolitho approach in working out the benchmark of care in situations of clinical negligence. An comprehending of this approach and of the move from the customary Bolam check is applicable to all health practitioners, especially in a weather that is progressively litigious.

Research Objective

The overall problem with the Bolam test is that it inhibits the courts exercising a restraining influence. The courts may well recognise that theirs is essentially a regulatory role and they should not interfere unless interference is justified. But when interference is justified they must not be deterred ...