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Traditionally, the surgeon in the United Kingdom was not concerned by lawsuits from patients who presented as both elective and emergency cases, but this has changed.

Expert medical opinion is essential in aiding courts in assessing whether the surgeon exercised a reasonable level of care given the circumstances. Based on the evidence of those professionals, the court should determine whether the defendant breached that standard; in other words, whether the defendant was negligent or not. The standard of treatment of the defendant surgeon in the same surgical intervention will, of course, contrast.

Law and Medical Negligence

The civil law of neglect intends to compensate one person damaged by the medical negligence of another. A three-part test determines negligence or malpractice. A duty of care must first establish, and then there must be a violation of that responsibility, resulting in harm to that individual. In an operating setting, the examiner or operating surgeon is responsible for paying attention; the difficulty arises if a person is unaware of being a patient. No one has to be a Good Samaritan under English law. When a surgeon’s standard of care falls below that of a “responsible body of medical/surgical men” and causes injury to the patient, the physician is considered negligent.

Historically, until 1932, negligence was regarded as a tort. Donoghue v Stevenson was a case involving the allegations of a snail’s decomposing remains in a ginger beer bottle. A “care obligation” has been created since then. In each discipline, it was rapidly used, including surgery.

The Bolam Principle

Bolam v Friern Hospital Management Committee established the criteria for determining the standard of care in negligence for the previous half-century and has been cited in nearly every medical negligence case.

In 1954, suffering from severe depression, John Hector Bolam volunteered to be treated with electroconvulsive therapy in a mental health facility run by the Friern Hospital Management Committee. The technique entailed inducing a series of medically induced seizures. Before the operation, there were no relaxing drugs or restrictions used. Mr. Bolam, on the other hand, flailed around aggressively and sustained several injuries, including a hip fracture.

Finally, Mr. Bolam began to prosecute the Friern Hospital Management Committee for having failed to manage the relaxants, not to contain them or not, since he never had any knowledge of the hazards associated with the treatment.

During the hearings, expert witnesses acknowledged that many medical opinions are against employing relaxants and putting restraints since they may raise the risk of issues, such as fractures. The expert witnesses further highlighted that, at the time, it was not usual practice to advise patients about minor risks associated with therapy.

During this period, juries utilized violence, and their duty was to hold the accused accountable. In support of the Defendant Hospital, the jury returned a verdict. Mr. Justice McNair remarked, “I would rather argue that if he worked under the procedure recognized by a respectable body of medical experts versed in this specific trade, he is not guilty of negligence… At the same time, it does not imply that a physician can persist in an old approach and pig-headed if it shows to go against what is truly the overall educated medical judgment”.

The Principle of Bolitho

The courts have made few attempts to shift away from the Bolam principle (or test), but higher courts have overturned their appeals in nearly every case. The claim in Bolitho v City and Hackney Health Authority pertains to treatment received by Patrick Nigel Bolitho at St. Bartholomew’s Hospital when he was two years old in 1984. Due to bronchial air passageways that led to cardiac arrest, Patrick suffered devastating brain damage and died.

The mother of Patrick claimed that if Patrick had intubated himself right away, he would still be alive today. The health authorities recognized that Dr. Horn had breached her duty of care by neglecting to see Patrick. However, Dr. Horn claimed that she had not intuited Patrick even if she had gone to see him, which was a valid professional judgment. She would have taken a decision. Dr. Horn’s position thus was that Patrick’s violation of duty did not kill him.

The House of Lords decided that “a defendant cannot avoid accountability by arguing that the loss would, in any event, have occurred because he would commit another duty violation.” According to the Bolam test, a duty violation cannot arise when you follow a reasonable expert opinion, and the expert opinion cannot be irrational.

The judge concluded that the inability of Dr. Horn to take charge of Patrick did not lead to his death. Dr. Horn would not have intubated Patrick if she had gone to see him, and a body of professional opinion would have backed that choice.

The suggested judgment in the Bolam v. Friern Hospital Management Committee by the House of Lords in 1957 appeared to have abandoned the Queen’s Bench Division’s Bolitho criterion. According to those criteria, which academic analysts have criticized, a doctor would not have behaved negligently if his acts adhered to a practice endorsed by a body of the professional judgment. In addition, in Bolitho’s case, the courts did not, however, decide under what conditions the physician had violated his duties of care by adopting a practice supported by a professional opinion. The court had not decided that this would be unusual.