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Bolam Test: An Inadequate Parameter For Assessing Medical Negligence

Super-Specialized Medical care and advanced equipment are the acknowledged services in a well of corporate hospital. A Patient's ability to afford the best medical care differentiates from the Ordinary level of reasonable care under Bolam test. The Bolam test standard of assessing the level of care of corporate hospitals lacks behind the times. Hence the research will conclude the with key findings and crucial reasons for incorporating reform in Bolam Test.

Introduction:
Medical Negligence is defined as the breach of duty owed by a doctor to his patient to exercise a reasonable degree of care and skill resulting into some physical, mental or financial harms or disability.[1] Medical negligence in India is examined using Bolam Test which was developed in Friern Management Hospital v. Bolam.[2] Justice McNair stated that the charge in the case derives a doctor is not guilty of negligence if he or she acted in accordance with the practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice.

Corporate Regime Of Hospitals

In the present times the second wave of Covid 19 pandemic has taken the whole country by surprise. Hospitals in Delhi say they only have enough oxygen for 24 hours  as reported after the oxygen tanker leak in Nasik causing death of patients admitted in Zakir Hussain NMC Hospital due to stoppage of oxygen supply.[3]

"The country on the one hand is witnessing deficiency pertaining to the medical equipment along with failed distribution policy leading to greater consequences and on the other hand, negligent action of the hospital authorities leading to leakage of oxygen and death of covid patients[4]," the plea of a Mumbai based NGO lawyer Vishal Tiwari to the Apex court stated. As per Apex court order dated 10 May 2021 the Ministry of Health and welfare has directed the formulation of a central policy treating Oxygen as an essential commodity which will only be used as a emergency resource and not for any other commercial purpose[5].

EG II panel has been setup to look after transportation, distribution and allocation of oxygen tanks and other resources as an judicial effort towards preventing misuse of Oxygen which is equivalent to a lifesaving drug currently.[6]

The Bolam Test, especially in the context of tertiary care corporate hospital has become obsolete and irrelevant. Judged by the standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.[7]

A reconsideration, endorsed the approach of high degree of negligence being the prerequisite for fastening criminal liability, and it was observed that the order to hold the existence of criminal rashness or criminal negligence[8], it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The professional is judged to be negligent if his applied methods were inappropriate or inadequate.

The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession[9] but this level of standard has become an insufficient parameter. At present time the growing expectations and monetary incentives provided by patients are matched with the provision of advanced equipment and top class experts even amongst the field of practitioners.

The age of government hospitals providing services of MBBS doctors, charging nominal fees has long gone. It is not possible for every professional to possess the highest level of expertise or skills in the branch in which he practices[10] but when the respondent has gone to a corporate hospital that is working solely for profit and is paying a huge amount as fee, she is to be provided super specialised tertiary care for her child in comparison to ordinary care of run down the mill hospital.

On account of the failure the corporate is obliged to bear the responsibility for inadequate treatment. At the same time the hired practitioner is also not free of negligence until it is proved by the hospital that the super specialized skills were practiced by the practitioner for which he received and accepted remuneration. It follows that the practitioner has utilized his super speciality skills which may not have resulted in desired relief. Hence he may not have been negligent. This also absolves the corporate.

Sedley, L.J.[11] opined that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.[12]

However, Bolam test was not applied when the actions of the medical specialists were deficient as observed in August 2019 when the Medical Council of India held 5 medical practitioner punishable for causing death of a 10 month's old infant even though the mother deposited the requested amount at the corporate clinics. Their practitioners licenses were suspended and they were charged for offence of culpable homicide under Section 304 of the Indian Penal Code (IPC), 1860 and the case is under consideration by the Delhi High Court.[13]

Evolution Of Bolam Test In Indian Law

In Jacob Mathew vs. State of Punjab and Ors.[14] the court laid down Bolam test as the most efficient measure of testing Medical Negligence saying that by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.

The decision of House of Lords in Maynard v. West Midlands Regional Health Authority[15]by a Bench consisting of five Law Lords was relied upon in the above case where it was settled that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. Hence it was considered insufficient that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper.

In England, Bolam test is now considered merely a 'rule of practice or of evidence. It is not a rule of law[16]. However as lad down in the larger Bench of this Court in Supra Chief Justice Lahoti has accepted Bolam test as correctly laying down the standards for judging cases of medical negligence, we follow the same and refuse to depart from it.[17]


Even though Bolam test was accepted by Apex Court for providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the Courts deferred too readily to expert evidence medical standards would obviously decline. It is criticized because the Bolam test opts for the lowest common denominator.

It was noted that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a course of treatment which has been intentional and has been shown to benefit other patients previously. This should not be extended to certain types of medical accident merely based on how common they are. Even though Bolam test 'has not been uprooted' it has come under some criticism as has been noted in.

The learned authors have noted that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic courts construe that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care.[18]

Assessment Of Bolam Test In Other Countries

Bolam test was not a parameter which sufficiently acted to cover all aspects of medical negligence. The same was recognized in by the ruling of the courts in England and the Bolam test has been discarded.

A five Judge bench of the House of Lords[19] ruled that:
A defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice.

Lord Browne-Wilkinson, speaking for the bench, in his opinion stated that despite a body of professional opinion approving the doctor's conduct, a doctor can be held liable for negligence, if it is demonstrated that the professional opinion is not capable of withstanding logical analysis.

In recent times Bolam test has been further interpreted in different countries courts and given a meaning which answers to the aspect of its inability to work as a parameter to assess medical negligence. The standard of care exercised and duty performed by medical practitioner reflects their skills and judgment which helps in rectifying problems faced during examination, diagnosis and treatment of the patient provided they possess the requisite knowledge.

The Australian Supreme Court laid down that the basic flaw involved in approaching the standard of duty of care of a doctor as laid down in Bolam test. The judgement states [20]:
It has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill.

But, that standard is not determined solely or even primarily with reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied.

Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".

A seven-judge bench of the U.K. Supreme Court in a more recent judgment delivered in and traced the changes in the jurisprudence of medical negligence in England and held that Patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession.[21] The Supreme Court noted that the courts have tacitly ceased to apply the Bolam test in relation to the advice given by the doctor to their patients.

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to 57 undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

Apparently from the above rulings the effectiveness of Bolam test is inadequate and has been discarded in some countries whereas been sent for reconsideration along the same lines for improving the 60 years old test.

Bolam Test For Reconsideration

The judicial pronouncement by D.Y Chandrachud in a case of medical negligence where the appellant was grieving and pleaded for damages for grievances suffered by his wife during the course of treatment amounting to Rs.48 lakhs.[22]The Apex Court laid down that under no circumstances may a competent medical practitioner take an unreasonable course of treatment which severely puts the life of the patient at risk when there is an alternative with less risks and better chances of success.

Such a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.[23] Along the same lines quantum of compensation was awarded as a monetary sum of Rs. 6 Lakhs along with interest on the sum awarded to be paid for period of time principle is due.

Justice Chandrachud also stated that the:
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires[24].

However, the judgement is clearly elucidating the fact that the level of standard of care expected of especially a corporate hospital was not met. The petitioner's claim for damages were laid down as his payment in the corporate house amounted to more than the damages awarded to him. Even though the Bolam test talks about an ordinary practitioner but such practitioner is not hired by big corporates and handed over huge tasks. A more deserving highly specialized practitioner is invited by these corporate hospitals for handling the critical patients as they require an experienced hand.

Justice A.K. Ganguly, addressed this Court, and observed that:
Even though Bolam test was accepted by this Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the courts refer too readily to expert evidence medical standards would obviously decline. This should not be extended to certain types of medical accidents merely on the basis of how.

The learned authors have noted that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic courts construe that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care[25].

In the context of such jurisprudential thinking in England, the Apex Court also has to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and especially in view of Consti. Art. 21 which encompasses within itself guarantee of, a right to medical treatment and medical care.[26] It is now clearly evident that the Bolam test as a parameter according to the Doctrine of Eclipse need to be overshadowed to the extent of its contradictory remarks to Article 21 and the reliance upon the reason and basis behind the relevance of the evidence presented requires to be taken in notice by the court.

The recent times have been an eye-opening venture for the Apex Court as the deaths caused due to inadequate facilities have exceeded far beyond the control of the government. The Suo Moto writ petition in front of the Hon'ble Apex Court where CJI S.A Bobde indicated that cases pending in High Courts might be withdrawn to the SC as different HC dealing with issues create confusion. The CJI said that at least 6 High Courts are considering cases related to pandemic management. But it is creating confusion and diversion of resources", CJI Bobde told Solicitor General Tushar Mehta.[27]

The major decision of court during this pandemic in context of Medical negligence was a crucial step to accommodate the growth and setup of Super tertiary care hospital to minimalize the casualties caused by the SARS 19 virus as well allocate the fund towards building of advanced and well-equipped nursing homes and hospital beds with best medical facilities to provide life support to critically endangered patient.

In the single bench Judgement of this court heard by Justice Indu Malhotra on December 16, 2019 highlighting the idea of reconsidering Bolam test and replacing it. It was held that the failure to inform the patient about the risk of medical treatment undertaken, was a breach of duty.

The hospital was punished for gross negligence and lack of standard of care as the necessary test of ROP was unperformed on the deceased. The hospital stated that the standard of care provided was justified as per the opinion of medical expert consulted and briefed. But the Hon'ble court laid down that if the opinion is not logically applicable and such opinion in the eyes of the court was not a careful or reasonable decision[28].

The Apex Court considering the foreign legal judgements on Bolam test held that if the arguments of the consortium of experts are not logical or practical and are deficient then they are termed as unreasonable or wanton decisions under medical negligence.

Reliance upon views of the experts, who cannot justify their own opinions, is not practical as their application on patients are unreliable owing to their special circumstances of the case. The huge hospitals are paid hefty sums to provide practitioner of a better class who takes a method imbued with practicality and considers its consequences and actual effects on the patient. Blinding trust on a consortium of incompetent practitioners to provide a better method is the flaw identified by the Apex court reflected in its judgement.

In the above case, Indu Malhotra J. also laid down the liability of hospital and doctor to the patient owing to their breach of duty of care:
It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empaneled to provide medical care.[29] It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.[30]

Hence, the most important aspect is the Inadequacy of Bolam test reflected in this judgement and answered by Apex Court was that the ROP test was done accounted for under ordinary level of care. Hence the Bolam test did not fail but was Inadequate to judge the requirement of the Screening test which is a necessity, indifferent to the opinion of a forum of medical experts of that field. Hence when the standards of such consortium is to be raised an emergence of Corporate hospitals with advanced equipment and super tertiary care is required as held in Montgomery v. Lanarkshire Health Board[31]as well as in the Australian case law of Roger v. Whittaker [32] where the Bolam test was regarded as an non successful parameter in age of corporate hospitals.

End-Notes:
  1. S.K Joshi, Law and the practice of medicine 60-62(Jaypee,1st ed.2010).
  2. [1957] 1 WLR: [1957] 2 All. E.R. 118 at 587.
  3. Oxygen leak kills 22 in Indian hospital as Covid crisis worsens, The Guardian,(21 April, 2021 12:38 BST)
    (https://www.theguardian.com/world/2021/apr/21/delhi-warns-hospitals-running-out-of-oxygen-amid-indias-devastating-covid-wave).
  4. Akshita Saxena,Plea in Supreme Court seeks Independent inquiry into the tragic Nasik oxygen leak case, Which claimed 24 Lives (22 April, 2021 3:18 PM).
    (https://www.livelaw.in/top-stories/supreme-court-tragic-nasik-oxygen-leak-case-which-claimed-24-lives-maharashtra-172946 ).
  5. Karan Singh Kohli v. Union of India, Suo Motu Writ Petition (Civil) No.3 of 2021.
  6. Passing order no. 40-3/2020- DM-I(A) issued along with DMA10(2) of 2005. (https://www.mha.gov.in/sites/default/files/MHADMAct_22042021.pdf
  7. Jacob Mathew v. State of Punjab,2005 6 SCC 1.
  8. Section 304-A of Indian Penal code of 1860.
  9. Subhash Chandra Tiwari v. West Bengal medical council ,2019 2 SCC 282.
  10. Id at 7
  11. Michael Hyde and Associates v. J.D. Williams & Co. Ltd [2001 PNLR 233 (CA)].
  12. Charlesworth & Percy on Negligence Para 8.03,(Sweet and maxwell), (14th edn).
  13. Order no. 2932 of 2019, Delhi medical council (3 September 2019).
    (http://delhimedicalcouncil.org/status-comp2019.php).
  14. Id at 7.
  15. [1985] 1 All ER 635 (HL)
  16. Michael Powers QC, Nigel Harris and Anthony Barton's, Clinical Negligence Para 1.60,(4th Edition, 2008
  17. Supra 7.
  18. Jackson & Powell on Professional Negligence (Sweet & Maxwell), (5th Edition, 2002).
  19. Bolitho v. City and Hackney health authorities, (1998) 1 AC 232.
  20. Roger v. Whittaker, (1992) 109 Aus. LR 625: [1992] HCA
  21. Montgomery v. Lanarkshire Health Board [2015] UKSC 11.
  22. Arun Kumar Manglik v. Chirayu Health and Medicare Pvt. Ltd., LNINDORD 2016 NCDRC 1061
  23. Id at 15
  24. Vol.30, Halsbury's Laws of England Para 35(4th Edn. 1987).
  25. Id at 18.
  26. V. Kishan Rao v. Nikhil Specialty Hospital, (2010) 5 SCC 513.
  27. Supreme court takes Suo Moto cognizance of Covid cases , Livelaw,(22 April 2021 12:41 PM).
    https://www.livelaw.in/top-stories/supreme-court-takes-suo-moto-cognizance-of-covid-issues-172934.
  28. Maharaja Agrasen Hospital v. Pooja Sharma & Ors, Civil Appeal No. 9461 Of 2019.
  29. Savita Garg v. Director, National Heart Institute, LNIND 2004 SC 1064.
  30. Cassidy v. Ministry of Health [(1951) 1 All ER 574(CA)].
  31. Supra 13.
  32. Supra 12.

    Award Winning Article Is Written By: Mr.Kanishka Pandey
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    Authentication No: SP35733081051-06-0921

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