To most people these surnames might conjure up images of the actor James Bolam, from the Likely Lads & New Tricks, and either the Scottish Golfer, Colin Montgomery, or the legendary World War Two Field Marshal.
However to those of us in the world of Clinical Negligence, the names Bolam and Montgomery have perhaps a more profound meaning.
When establishing if a clinical negligence case has reasonable prospects of success, one of the tasks that a Lawyer has to do is to establish whether or not the case might pass the ‘Bolam test’.
This legal Test – which arose out of the case of Bolam –v- Friern Hospital Management Committee, 1957 – provides that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".
Mr Bolam was a voluntary patient at a mental health institution run by Friern Hospital. He suffered with severe depression and agreed to undergo Electro-Convulsive Therapy. His Anaesthetists' preferred practice at this time was not to give muscle relaxants during the procedure (whilst other Anaesthetists did have a preference for using relaxants). The procedure took place and as Mr Bolam convulsed he suffered bilateral pelvic fractures.
He sued Friern Hospital Management Committee for compensation. He argued they were negligent for :
(1) not using muscle relaxants
(2) not restraining him
(3) not warning him about the risks involved.
Judge McNair who presided over the case noted that expert witnesses had confirmed that a lot of medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Further he noted it was common practice of the profession to NOT warn patients of the risk of treatment (when it is small) unless they specifically asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. The Judge therefore directed the Jury (Juries were still in use in Tort cases at that time) to find that the Defendant was not negligent.
Look out for part 2 coming next week.
For more information or to contact a member of the Clinical Negligence team click here.