Who are those persons under the law of torts who are required to profess to have greater skill and care and for exercising ordinary care, they are made responsible for negligence? Illustrate.
Bolam principle is related with medical negligence. The judgment given by Justice McNair in Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 is a landmark decision related to medical negligence and is known as the “Bolam test”.
It says that ‘the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act.’
Bolams test has been approved by the Hon’ble Supreme Court in Jacob Mathew v. State of Punjab & another, 205 CTJ 1085 (SC) wherein the court held that-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (Edited by Justice G.R Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued, the essential components of negligence are three; duty, breach and resulting damage.
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional consideration apply.
A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
So also, the standard of care, while assessing the practices as adopted, is judged in the light of Knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to m some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the same of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the 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 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. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of better qualities, but, that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case (1957) 2 ALL ER 118 (QBD) holds good in its applicability.
Bolam test says that to term the act of doctor as negligent we should consider the act of another doctor in the ‘similar circumstances and facilities as existed with the treating doctor.
Also the professional knowledge and skill of the treating doctor should be compared with another doctor having same educational background. Courts in a multiple number of cases have very well settled these issues worldwide.
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