When you are harmed as a result of medical negligence, you could have grounds to sue for compensation. However, a court may decide to use the Bolam test to establish whether a medical practitioner or healthcare provider breached the duty of care that they owed you.
Healthcare practitioners must provide a level of care is meets the standard that is expected from them. When you are caused unnecessary harm, or an existing condition is made worse due to medical negligence, you may be able to sue. You’re owed this duty of care in all areas of medicine, including in the hopsital, at your GP or when collecting medicine from a pharmacy.
We’ve produced this guide to provide you with essential information on the duty of care that all medical practitioners owe you. The guide explains how this duty could be breached. In the sections below, we cover aspects of the claims process like the statutory time limits, compensation payouts, and how a No Win No Fee solicitor could benefit you in making your claim.
To continue reading our guide, please click on the sections below. Alternatively, to speak to an adviser, please do so by contacting Legal Helpline in the following ways:
- By telephone on 0333 0000 729
- Using the live chat feature at the corner of this screen
- Contact us using our online form
We provide an initial, free consultation and there’s no obligation for you to continue with a claim just because you get in touch. To benefit from free legal advice, please get in touch with a member of our team today.
Jump To A Section
- A Guide On If The Bolam Test Case Applies To Your Claim
- What Duty Of Care Does A Medical Professional Have?
- Summarising The Bolam Test Case
- How The Bolam Test May Be Applied
- Is There A Limit To Informed Consent?
- When The Bolam Case May Not Apply
- Medical Negligence Claims Calculator
- What Can Be Included In Special Damages?
- How Legal Helpline Can Help You
- No Win No Fee Claims For A Breach Of Duty Of Care
- Contact Legal Helpline Today
- Useful Links
- The Bolam Test Case – FAQs
A Guide On If The Bolam Test Case Applies To Your Claim
Our guide to seeking compensation for medical negligence provides you with essential advice and information on when a claim could be valid. In the sections that follow, we explain how a court may decide to use the Bolam Test to establish whether a medical practitioner breached their duty toward you.
If you were treated in an NHS medical facility and believe clinical negligence applies to your claim, you could sue the NHS for compensation. The same applies if you were treated in a private medical facility or received substandard care from a pharmacist or other qualified healthcare provider.
It’s important to bear in mind that not all instances of an injury, illness or worsening health condition that happens as a result of medical treatment is grounds for a claim. Sometimes, you can experience unnecessary harm as a result of medical treatment even when the duty of care is followed.
For example, you could be exposed to infection just from being in the same ward as someone who was ill, but there was no breach of duty of care that caused you to become infected. If this is the case, you would not be able to claim.
Furthermore, in some cases, you might be caused necessary harm as part of your treatment. For example, you may need an amputation because of gangrene; while this causes you harm, it’s necessary to treat you for your condition.
For more information on the role the Bolam test plays in clinical negligence claims, speak with an advisor today.
Time Limit to Making a Medical Negligence Claim
The statutory time limit to making a medical negligence claim is typically 3 years from the date you are harmed, or when you realised your injuries or worsening condition was caused by negligence. However, there are some exceptions to this.
If a child is harmed, the time limit is suspended until the date they turn 18 years of age. In short, they have until they are 21 years old to file a claim themselves. That said, a claim can be filed on a child’s behalf while they’re a minor by a litigation friend. As long as they are under 18, the time limit is suspended.
Another exception to the statutory 3-year time limit applies to anyone who lacks the mental capacity to make a claim themselves according to the Mental Capacity Act 2005. If this is the case, the time limit does not apply and again, a litigation friend can file a claim on their behalf.
To benefit from free legal advice and an initial, no-obligation consultation, please reach out to a member of our team today. We can connect you to a lawyer who offers to act on your behalf on a No Win No Fee basis. Our advisors can also give you free legal advice and let you know whether the Bolam test may impact your claim.
What Duty Of Care Does A Medical Professional Have?
All healthcare practitioners owe you a duty of care; this means that they have to provide an acceptable level of care when they are treating you. The General Medical Council (GMC) lays out the following duties of a doctor:
- Medical practitioners must provide an acceptable level of care to patients
- A patient’s care must be a practitioner’s main concern
- That medical professionals are competent and that their medical knowledge is up to date
- To act promptly when a patient’s safety is compromised
- Act with honesty, openness, and integrity
When a medical professional breaches their duty of care towards you, and you are harmed, this is medical negligence. You could have grounds to sue for compensation; however, the Bolam test may need to be used to determine whether or not negligence occurred.
Duty of Candour Explained
Medical practitioners are also obliged to act with candour when treating patients in their care. The GMC states that medical professionals must:
- Remain honest and open with you when anything goes wrong with your treatment
- Apologise to you or anyone who is acting on your behalf
- Offer a way of correcting what has gone wrong
- Explain fully what happened
If you have any questions about the duty of care a medical practitioner owes you, or to find out whether you have grounds to sue, please call an adviser today. We provide free advice along with an initial, no-obligation consultation. One of our friendly advisers can answer all your questions and could connect you to a specialist No Win No Fee solicitor from our panel.
Summarising The Bolam Test Case
The Bolam test can be used by courts to establish whether medical negligence occurred in a certain scenario. The test involves a panel of medical practitioners presenting their expert opinions on whether another practitioner acted negligently or not. The panel consists of qualified medical practitioners trained in similar fields and who, therefore, are aware of the acceptable level of care required.
The selected panel will examine a case to establish if a level of care was acceptable or not. If the panel finds that an acceptable level of care was provided when treating you, it would establish that no negligence on their behalf took place. Therefore, you would not be able to claim, even if you were caused harm.
Bolam v Friern Hospital Management Committee [1957]
The Bolam v Friern Hospital Management Committee [1957] was a case between a patient of a mental health clinic. The negligence claim came about because a patient agreed to undergo electro-conclusive therapy (ECT) but the doctor omitted to administer muscle relaxants to them. The patient claimed that the doctor should have known his patient was being put at risk from not being given the relaxants.
They sustained injuries which included a fracture to the hip joint and as such claimed damages. The patient claimed negligence on the part of the doctor for:
- Not administering a muscle relaxant
- Omitting to make sure they had required restraints
- Failing to tell them about the risks
However, when the case went to court, the doctor was found to have provided an acceptable level of care. This is because the use of muscle relaxants and restraints was against broad contemporary medical opinion. Furthermore, it was common practice for healthcare professionals not to warn patients about small risks involved in treatment, such as the risk of fractures during ECT.
Therefore, medical negligence was not said to have occurred. In short, the court found in favour of the defendant because they are provided with an acceptable level of care to the patient according to the standards of the time.
How The Bolam Test May Be Applied
There are a number of different scenarios where the Bolam test could be used to determine whether a medical professional was negligent or not. They include:
- Failure to refer. The test could be used to determine whether a healthcare professional could be expected to make a referral to a professional.
- Failure to diagnose. If there is some question about whether or not the misdiagnosis that occurred resulted from negligence, the test could be used to determine this.
- Birth injuries. For example, the test was used in the case of Whitehead vs. Jordan to determine whether the use of forceps in a birth was a breach of duty of care.
For more information on cases that this test could be used in, speak with an advisor today.
Is There A Limit To Informed Consent?
You must provide informed consent for your doctor to examine and treat you. There are three requirements that need to apply in order for consent to be valid:
- It should be given voluntarily, meaning without influence from healthcare providers, family or friends.
- They must be informed, meaning that they should be given all the information they need to make a decision.
- The decision-maker must have the capacity to make a choice, meaning that they should be able to understand the information that they have been given and use it to make a choice.
There are some exceptions that apply to informed consent. For example, a healthcare provider can give you emergency medical treatment without consent in order to save your life.
There is a suggestion of limits being applied to ‘informed consent’ which include:
- Patients may not fully understand the severity of a condition or the suggested treatment option
- If a patient does not fully comprehend something, they cannot fully consent to it
- Informed consent cannot be obtained from those who do not have the capacity to consent.
Montgomery v Lanarkshire Health Board [2015]
The Montgomery v Lanarkshire Health Board [2015] was a case that involved a pregnant woman who suffered from diabetes. She had a small body frame and was about to give birth to a large baby. She experience complications during normal childbirth which was caused by shoulder dystocia. As a result, the baby suffered brain damage and developed cerebral palsy. The doctor did not inform her about this risk, because it was considered to be very slight.
Montgomery won her medical negligence claim because she had not been told of the risk despite having voiced her concerns about the baby’s size. She argued that if she had been told of the risk, she would not have given birth vaginally, but by caesarean section instead.
To speak to one of our friendly advisers about a claim involving medical negligence, please call the number at the top of the page. A member of our team can provide you with free advice on whether you have grounds to sue for compensation.
When The Bolam Case May Not Apply
In certain cases, there is no need for the Bolam test to be applied. For example, in cases involving “pure diagnosis”, it can be argued that there is no requirement for this test to be used.
This is because, when test results such as scans or slide specimens, there is no scope for an acceptable level of care. The interpretation is either correct or incorrect and, if incorrect, is either negligently so or not, unlike when recommending treatment when there may be a range of choices and options with different risks and benefits.
It could also not apply in cases where there is no dispute over whether or not the care administered was negligent, and instead, the only question relates to whether the incident occurred. In these scenarios, this test cannot be used to ascertain the facts of the scenario.
For more information on cases where the Bolam test might not apply, speak with an advisor.
Medical Negligence Claims Calculator
When you file a medical negligence claim for compensation, you can be awarded a settlement that is made up of general and special damages. You would receive general damages for the pain and suffering resulting from the harm you were caused.
Our table provides you with a general idea of how much can be awarded for specific injuries. The amounts are taken from the Judicial College Guidelines (JCG) which courts, solicitors, and insurers use to help value this part of a claim. Please note that the figure in the top row was not taken from the JCG. Furthermore, as every claim is different, this table does not represent the outcome of your case and is instead intended as guidance.
| Harm suffered | Guideline Amount | Additional details |
|---|---|---|
| Multiple Instances of Severe Harm and Related Costs | Up to or more than £1 million | The claimant has suffered more than one harmful incident plus has related costs to recover, such as nursing care and lost wages. |
| Brain Damage | £344,150 to £493,000 | This bracket applies to very severe brain damage requiring full time nursing care to cope with severe cognitive and physical disabilities. |
| Paralysis | £267,340 to £346,890 | Paraplegia (paralysis of the lower body) with the awarded determined by pain, independence, depression, age and life expectancy and the impact on sexual function. |
| Kidney | £206,730 to £256,780 | Serious and permanent damage to both kidneys. |
| Leg Amputation | £127,930 to £167,760 | The claimant required the above-knee amputation of one leg with the award considering level, phantom pains, stump problems, age, psychological symptoms, prosthetics, backache and osteoarthritis risk in remaining joints. |
| Bladder | £78,080 to £97,540 | The claimant suffers pain and incontinence due to a serious bladder impairment. |
| Spleen | £25,380 to £32,090 | Where the spleen is lost causing continuing risk of internal infection because of impact on immune system |
| Bowel | £15,370 to £29,870 | Penetrating injury which results in some permanent damage to their bowels. Normal function returns eventually. |
| Hernia | £18,180 to £29,490 | Claimant suffers ongoing pain and discomfort which as a consequence negatively impacts their ability to take part in physical activities and their ability to continue working |
| Reproductive system - female | In the region of £12,450 | Failed sterilisation causing unwanted pregnancy |
A member of our team can provide you with a clearer idea on the general damages you could receive and offer free advice on how best to proceed. Moreover, if we find you have grounds to sue for compensation, we can connect you to a No Win No Fee lawyer from our panel of solicitors.
What Can Be Included In Special Damages?
You may also be entitled to special damages for any financial losses and expenses that you experience as a result of the harm you were caused. However, to claim special damages you must provide proof of the losses and expenses you incurred.
Examples of some of the losses and expenses you could claim back are detailed below:
- Lost earnings for the time you are off work recovering
- Loss of future earnings if you cannot carry on working
- Care costs if you require help with daily chores around the home. You can claim care costs whether a family member, friend or paid person takes care of you
- Travel expenses which can cover getting to medical appointments
- Home and vehicle adaptations if they are necessary
Call us now to find out whether you have a valid medical negligence claim and to find out if the Bolam test may apply to your case. We can provide you with a free initial consultation for which there is no charge. Once we determine you have good cause to sue, we can connect you to a lawyer who works on a No Win No Fee basis.
How Legal Helpline Can Help You
When you get in touch with a Legal Helpline advisor, they can explain to you what the Bolam test is. Further to this, an advisor can:
- Estimate how much medical negligence compensation you might be entitled to.
- Assess whether you could have a strong claim.
- Provide guidance on other evidence you could collect and advise on requesting your medical records.
- Discuss the first steps of the medical negligence claims process with you.
If you are eligible and you wish to proceed with Legal Helpline’s services, an advisor can connect you to one of the medical negligence solicitors on our panel. The solicitors on our panel can:
- Further explain the Bolam test and how it affects medical negligence claims.
- If necessary, arrange for the Bolam test to be carried out by relevant medical professionals.
- Help you collect further evidence.
- Ensure that your medical negligence claim is accurately valued and that all damages are accounted for, including multiple instances of harm and related costs.
- Negotiate with the other party, regardless of whether your claim is being made through NHS Resolution or a private healthcare provider’s insurer.
- Talk you through the Pre-Action Protocol for Clinical Negligence.
- Handle important paperwork and documentation and ensure that anything that needs sending off to the other party is completed and sent on time, such as the Letter of Claim.
- Provide regular updates on your claim.
- Answer any questions you have about the legal jargon you may come across so as to keep you fully informed.
Our panel has decades of collective experience supporting medical negligence claims and they can offer these services on a No Win No Fee basis, which we explain below.
No Win No Fee Claims For A Breach Of Duty Of Care
As previously mentioned, when we find you have good reason to sue for medical negligence compensation, we could connect you to a No Win No Fee lawyer from our panel. When you sign a No Win No Fee agreement (also known as a Conditional Fee Agreement) you don’t have to pay upfront for the legal services the lawyer provides.
You only have to pay a No Win No Fee lawyer if you receive a compensation payout. Their capped success fee is taken from the money you receive.
To find out how Legal Helpline can help you make a successful medical negligence claim, please reach out to a member of our team today. We provide a free, no-obligation consultation which allows us to review your case. Moreover, you can ask all the questions you have about the Bolam test when you speak with an advisor.
Contact Legal Helpline Today
If you have any questions about the Bolam test and medical negligence claims, please don’t hesitate in contacting a member of the Legal Helpline team. We can be reached in the following ways:
- By telephone on 0333 0000 729 – all calls are free of charge
- Live chat
- Fill out the online claims form
Call today to benefit from free legal advice from one of our experienced and friendly advisers.
Useful Links
Links to other Legal Helpline guides:
The Bolam Test Case – FAQs
Did Montgomery overrule Bolam?
The case of Montgomery vs Lanarkshire Health Board [2015] highlighted limitations relating to the Bolam test when it comes to informed consent.
Is the Bolam Test still used?
Courts do still use this test when handling medical negligence claims and when it’s appropriate to do so.
Written by HW
Edited by FS
