Misdiagnosis of cancer uses Bolam test to decide negligence
- 04.05.2017
- EmmaArnold
- Clinical-negligence, Clinical-negligence
A recent judgment was handed down on a case involving a misdiagnosis of a malignant melanoma.
The Claimant had a biopsy taken from a wound and was told it was a non-malignant ulcer but almost a year later another biopsy found a malignant melanoma.
After an operation to remove the tumour, surgeons found the cancer had spread to the lymph nodes and so a further operation was carried out.
During the trial of medical negligence, the judge needed to decide whether the failure to initially diagnose the cancer was a breach of duty to exercise reasonable care.
Lesley Herbertson, senior clinical negligence solicitor at PotterReesDolan, said:
When determining whether a treating medical practitioner has been negligent, the legal test to be applied by the lawyers, independent experts and, ultimately, the court is called the Bolam test. The test derives from the case of Bolam v Friern Hospital Management Committee which was decided in 1957 and which case law remains completely relevant today.
In accordance with Bolam, in order to establish negligence, the injured party has to satisfy the court that no reasonable body of medical practitioners would have acted in the same way as the Defendant did. Therefore, the Defendant can defend a claim if it can point to other doctors/medical staff who would have done what the potentially negligent member of staff did.
By using the Bolam test, the judge in this case decided the medical professional had not been negligent when mis-diagnosing the ulcer but acted in accordance with competent professionals.
However, the judge did point out that a court cannot hide behind the Bolam test and disregard contradictory evidence to favour one view to another.
Lesley add:
That legal test has been refined over the years and the court will allow itself to step back and look at whether it considers the action taken by the medical practitioner involved was reasonable and acceptable per se even if others would have acted in a similar way.
The Judge in the Muller adopted this broader approach. He was clearly not comfortable in simply accepting that the Defendant has produced expert evidence which supported a Bolam defence and he allowed himself to analyse both parties' expert evidence and favour the Claimant's as properly applying the Bolam test and presumably being more objectively convincing.
The case highlights how, although the Bolam case remains good law, the opportunity to use it is becoming restricted.