In the second article in this series, Dr Brian Hurwitz discusses the nature of medical negligence and the role that clinical guidelines may play in such actions

The dictionary meaning of negligence implies 'a want of attention to what ought to be done or looked after.' To prove negligence in a court of law the plaintiff – the person bringing the action – must show that:

  • The defendant doctor owed the plaintiff a duty of care, and
  • The doctor breached this duty of care by failing to provide the required standard of medical care, and
  • This failure actually caused the plaintiff harm.

The common law holds that in the normal course of clinical work, doctors have a duty of care towards patients.

The nature of this duty was spelt out in 1925 in a case in which a doctor was accused of criminal negligence. The trial judge stated that:

'If a person holds himself out as possessing special skill and knowledge, and he is consulted... he owes a duty to the patient to use due caution in undertaking the treatment... to use diligence, care, knowledge, skill and caution in administering treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.' 1

The legal duty of care obliges doctors to provide a minimum standard of care to their patients.

The duty of care is imposed by law and its standard is determined by the courts after hearing expert evidence. Breach of this standard consists in providing treatment that falls below such reasonable standard.

What is a reasonable standard of care? In UK law the standard of treatment that a doctor generally owes to a patient derives from the case of Bolam v Friern Hospital Management Committee (1957).

During this case, Mr Justice McNair stated:

'The test is the standard of the ordinary skilled man exercising and professing to have that special skill'.2

Doctors must act in a manner judged reasonable and proper by a body of other responsible doctors. Judge McNair stated:

'A doctor will not be 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'.2

This has become known as the 'Bolam test'. Expert testimony helps courts to ascertain what is accepted and proper practice in specific cases; this generally ensures that professionally generated standards are applied, rather than standards originating from elsewhere (including from guidelines).3

Questions of breach of duty are decided primarily on the basis of expert medical evidence, but Lord Bridge in Sidaway (1985) cautioned that application of the Bolam test must not involve handing over to the medical profession

'the entire question of the scope of this duty...including the question of whether there has been a breach of that duty. Of course, if there is a conflict of evidence whether a responsible body of medical opinion a particular case, the judge will have to resolve that conflict'.4

Expert medical evidence is therefore not always conclusive. Courts examine the substance and rationale of the treatment that has been provided 'not merely the fact that others can be found to support it'.5

Since successful actions in negligence are fault-based, it is essential that the link between fault (breach of duty) and causation of the injuries suffered is firmly established. The proof of causation required to recover damages is that the plaintiff can show, on the balance of probabilities, that the breach of duty caused or materially contributed to injury.6

The case of Early v Newham Health Authority (1994) illustrates these legal points. The plaintiff was a 13-year-old girl who alleged that an anaesthetist had employed a faulty protocol during a failed intubation procedure.7

Before elective surgery, it had proved impossible to pass an endotracheal tube during an otherwise routine induction of anaesthesia. The anaesthetist therefore followed a protocol adopted in that hospital for such eventualities; this recommended insufflation of the lungs with an oxygen-rich mixture until consciousness was regained.

During the course of the procedure the patient awoke while still paralysed from suxamethonium, suffering fright and distress as a result. She later brought an action alleging that the protocol used in her care had been substandard.

The doctor and health authority were both charged with negligence. The judge heard evidence as to the origins of the protocol, its development and adoption by the division of anaesthesia in the hospital concerned, and was also informed of its use by other UK hospitals.

He found in favour of the defendants, observing that the authors of this particular protocol had been responsible and competent; neither the doctor nor health authority had been negligent in approving and adopting it.

In Early there was no need formally to establish a duty of care between anaesthetist and patient because the existence of a relationship of dependence by the patient upon the reasonable skills of the anaesthetist was incontestable.

The case turned on whether there had been a breach of duty, a failure by the doctor to provide the required standard of care. This was decided by the judge after hearing evidence of the general practices adopted by anaesthetists in this clinical situation, and of the need to balance risks involved in alternative courses of action, such as the risk of transient terror if consciousness is regained against that entailed by adding nitrous oxide to the inspired gas, thereby prolonging anaesthesia until after paralysis has subsided, but at the risk of decreasing the oxygen content of the patient's inspired gases in a situation in which intubation had not been possible.

Even if breach of duty had been found in Early, the action could still have failed if the plaintiff could not also prove, on the balance of probabilities, that the breach in question caused injury. In other words, had it been found that the anaesthetist in this case had indeed adopted a substandard protocol and was thereby in breach of his duty, the next question to be answered in court would be 'did the plaintiff suffer physical or psychological damage as a result'?

If the answer to this question in these circumstances is 'yes', then the action would be successful and the defendants would be liable for damages. If the answer to this question is 'no' (which would seem unlikely) then, despite the finding of a demonstrable breach of duty, the defendants would not be liable for damages.

The case of Early reveals that the recommendations of clinical guidelines or protocols, though by no means irrelevant, cannot conclusively determine the standards of care by which the courts judge whether a doctor's practice has been adequate or not. A more important consideration is the practice that responsible clinicians adopt in similar or identical clinical situations.

The third article in this series will consider in detail how the courts decide which standard of care to apply in different circumstances, and the role that clinical guidelines can play in the legal process.

  • This series of articles has been adapted and condensed from Clinical Guidelines and the Law by Brian Hurwitz.
    Foreword by Sir Douglas Black. Abingdon: Radcliffe Medical Press 1998.

book cover

  1. R v Bateman quoted in: Kennedy I, Grubb A. Medical Law. Text and Materials. London: Butterworths, 1994: 400.
  2. Bolam v Friern Hospital Management Committee. 1957 2 All England Reports 118-28 at 122.
  3. Lord Scarman. Law and medical practice. In: Byrne P, ed. Medicine in Contemporary Society. London: King Edward's Hospital Fund for London, 1987: 132.
  4. Sidaway v Board of Governors of the Bethlem and the Maudsley Hospital 1985 1 All England Reports 643.
  5. Newdick C. Who Should We Treat? Oxford: Clarendon Press, 1995: 86.
  6. Kennedy I, Grubb A. Medical Law. Text and Materials. London: Butterworths, 1989:426-46.
  7. Early v Newham Health Authority. 1994 5 Medical Law Review 215-17.


Guidelines in Practice, March 1999, Volume 2
© 1999 MGP Ltd
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