negligence
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In order to bring a successful medical negligence claim, we need to establish the following factors:
"h The existence of a "Duty of Care"
"h Breach of that duty
"h Consequential damage
Proving the existence of a duty of care is seldom an issue in such claims. As far as the breach of duty is concerned, the standard was set out in the 1957 case of Bolam v Freien Hospital.
The "Bolam Test", which has been applied to all aspects of the relationship between medical adviser and patient, is as follows:
"A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art....putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view".
The Bolam Test does only impose a minimum standard. The test also implies that the medical adviser will be judged by the standard of his individual speciality. In other words, a different degree of skill would be required from a specialist in his own particular field than from a general practitioner.
As well as the questions of diagnosis, advice and treatment, the Bolam test has also been applied to the issue of consent. Related to this is the question of malcommunication..