[log in to unmask] wrote:
>
> In a message dated 15/08/96 02:50:05, Jon Wilcox writes:
>
> >Perhaps we should allow
> >our imperfections to be quoted far and wide - it may make the job
> >(sorry, challenge) of the legal opportunists more difficult.
> >
> >
> What an interesting point this raises.
>
> The test of negligence that is required for all cases( in the UK) is
> enshrined in Whitehouse v Jordan. A doctor only has to be as good as the
> average doctor of his training and experience, we don't all have to be
> perfect. The problem in court seems to be establishing reasonable average
> practice. There will always be opposing views, and the court has to decide
> which, on the balance of probabilities, is the average. (Alert correct me if
> I am wrong about the case law).
The leading case is Bolam v Friern Barnet and the test is, therefore,
called the Bolam test. Whitehouse v Jordan, whose name I recall but
details not at this hour, is probably one of many interpretations of
Bolam. The standard to achieve is to be reasonably competent. The way to
understand the test on a practical level is that you will be negligent
if an expert witness says you fell below that standard in his opinion
unless you can persuade the court through your own expert witnesses
that, whatever errors and mistakes were made, there exists a
responsible body of medical opinion who, faced with the same
circumstances, would have done likewise.
One of the problems with the Benzo case was that while many doctors were
theoretically negligent in overprescribing according to the literature,
so many of you lot were doing it that you became your own "responsible
body of opinion". (I remember doing a Radio interview in 1989 with
Professor Asschar then head of the CSM and he explained the Jan 1988
Bulletin warning doctors to drastically reduce prescribing by saying it
was not because of any new information but because it was apparent
doctors were not reading what they ought to read about Benzos over the
previous nine years).
As the courts therefore leave the test to be established by the medical
profession as a whole, then we will never really end up with the
'defensive medicine' phenomenon of the States, in which the court can
impose a standard of care onto an otherwise reluctant profession.
It is not the case, as Trefor suggests, that the standard is to be
'average' . If that were so, then half of all doctors would by
definition be negligent but, sadly for my business, that is not the
case! Reasonable competence is the level that the overwhelming majority
of doctors would attain.
Trefor is right about there being no need to be perfect (notwithstanding
the many contributors to this list who have recently indicated for my
benefit how they see this as a preconditon to membership of the medical
profession). However, it is not always the case that the test is
assessed according to the level of 'training and experience'. Sometimes
the court will take into account the level of training and experience
expected by the patient. I can't recall the case name, but a good
example is where an A&E unit throws in a raw recruit who cocks up. His
defence that he had limited training was not upheld since the standard
for the test was the reasonably competent A&E man. This may open up an
interesting problem area for nurse practitioners.
> Indeed, if Graham Ross is interested in finding out how imperfect the world
> (see previous posting) is and how compex our job is, perhaps he would like to
> spend some time with one of us, to see the scale of the problem.
>
Likewise at understanding life in a solicitors office. I can assure you
that you do not have the monopoly of time wasting bureaucratic
paperchases. Maybe a swop for a week would be interesting.Any offers?
Graham Ross
ALeRT
http://www.alertuk.com
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