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----- Original Message ----- From: "Dunn Matthew Dr. > Writing fast, the word 'litigation' did not come into my head at the right > time. > However, I believe the term 'prosecution' can cover both civil and criminal > prosecution. Granted Matt, it's an old-fashioned term for any sort of litigation, but I was just concerned that you might have meant the more accepted modern definition which is reserved for criminal charges. > Bolitho is a bit patchy in its application. I think it actually moves us > away from defensive medicine- I've previously heard an argument that you > must follow guidelines however wrong they appear because they are the > standard practice used for defence under Bolam. Under Bolitho you must be > prepared to show that the guidelines are reasonable rather than standard > practice i.e. move away from time honoured (and defensive) to evidence based > practice. The relevance here is of course that certainly use of spinal > boards has been standard practice in the past. This is no longer a defence- > you have to consider whether they benefit this patient. You are quite right Matt, and that's precisely why Bolam has been superseded in several important cases now. As one observer noted at the time of Bolam "it is not a normative test based on what ought to have been done, but a sociological test based on what is done by doctors." This basically allowed doctors to get off with some fairly ropey defences. Now you will no longer be able to rely on a particular defence just because it's what everyone else is doing at the time, your defence must now withstand logical analysis. But most modern clinical guidelines are pretty safe, they've been through the methodological treadmill so to speak. But it's no longer acceptable to practise in a certain way just because that's how everyone else does it; your practice must be based on rational principles. That doesn't necessarily mean evidence based as there is a dearth of evidence in many areas but, especially where there is no "evidence", you must at least have a sensible and rational basis for your method of practice. Adrian Fogarty P.S. One must be careful of using the term "evidence based" when in Court or Conference. Judges and lawyers generally reserve the term "evidence" for factual material relevant to a case. Opinions derived from learned journals can of course be used by expert witnesses as "opinion evidence". This latter type of evidence is also very important in civil litigation but is carefully distinguished from factual evidence. It's just another example of medical jargon that we get "immune" to, forgetting that it's not used in the same way by non-medics.