TORT LAW

Tort Law

Table of Contents

Chapter One: Introduction4

Introduction4

The Bolam Test and Gunapathy Case4

Chapter Two: The Bolam Case7

Bolam Case7

Law and Consent7

Battery9

Negligence10

Chapter Three: General standard of Care Medical v Non-Medical Cases17

Clinical Negligence: The Conceptual Legal Framework17

Duty of Care, Human Rights and Clinical Governance19

Standard of Care in Clinical Negligence21

Chapter Four: Application of Bolam Across the Medical Profession28

NICE and Human Rights28

Procedural Changes and Human Rights31

Chapter Five: Methodology and Critics of Bolam33

Pre-Bolam Cases34

Facts of Bolam Case37

Chapter Six: The Value of Expert Evidence40

The High Court Decision40

Chapter Seven: Reform45

Judgment of the Court of Appeal45

Ambit of Bolam Test45

Chapter Eight: Conclusion49

Conclusion49

References52

Chapter One: Introduction

Introduction

In April 1998, Frank Dobson, then Secretary of State For Health, expressed the view that “the best place for a lawyer is on the operating table”, because lawyers are “milking the NHS of millions of pounds every year” - money that could better be spent on patient care[1]. That statement, which was of course eagerly seized on by the press and widely publicised, is an indication of the complex, and sometimes antagonistic, relationship between doctors, lawyers and the Government. In this paper, I propose to explore that relationship in the context of the explosion in clinical negligence litigation, clinical governance, and the introduction of the Human Rights Act 1998. In the process I will touch on trends in judicial policy, substantive law and legal procedure. I examine these issues from the perspective of a lawyer, but I hope that there are some aspects of this paper that will be of interest to social scientists, who may be better equipped than lawyers to make sense of the additional layers of complexity in an area of public life that is perhaps already over-regulated.

The Bolam Test and Gunapathy Case

In recent times, there has been much judicial activity in the field of professional negligence for physicians on the standard of medical care in England, Australia, Singapore and Malaysia.

Until the latest and most authoritative Court of Appeal decision in Singapore on medical negligence - Dr Khoo James & Anor v Gunapathy1 ('Gunapathy case') - there were inconsistencies in the application of the Bolam test in the courts below. Its judgment raises a number of pertinent issues. The Gunapathy case has finally explicitly explained the working of the Bolam test as well as indicating the policy considerations of the Singapore courts visà vis the medical profession. It also sets the yardstick by which medical expert witnesses will now be measured. This article will address the important questions of:

(1) What are the roles of the judges and the court?

(2) How is the Bolam test to be interpreted in issues of diagnosis, treatment, consent and disclosure? It will also examine the implications and impact of the Gunapathy case in medical negligence litigation.

Before setting out the Gunapathy case, the article will first examine the law and thinking before the Gunapathy case. It will then consider the unreported judgment of the High Court, and in particular the 'Ten Commandments', and then deal with the Court of Appeal judgment on the interpretation of the Bolam ...