Does The Bolam Test Apply To Your Claim?

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.

Bolam test guide

Bolam test guide

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 dental care, 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 0161 696 9685
  • 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.

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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.

Summarizing 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.

Harm sufferedPotential Compensation payout in general damagesAdditional details
Reproductive system - femaleIn the region of £9,570Failed sterilisation causing unwanted pregnancy
Reproductive system - female£3,180 to £19,170Delayed diagnosis of ectopic pregnancy with no impact on fertility
Reproductive system - female
£31,950 to £95,850Infertility caused by delayed diagnosis of ectopic pregnancy
Kidney £158,970 to £197,480Serious and permanent damage to both kidneys.
Kidney up to £60,050Significant risk of future infection or loss of function in the kidney
Bowel £11,820 to £22,970Penetrating injury which results in some permanent damage to their bowels. Normal function returns eventually.
Bowel £41,850 to £65,440Impaired function and dependence on colostomy.
Hernia£13,970 to £22,680Claimant 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
Spleen £19,510 to £24,680Where the spleen is lost causing continuing risk of internal infection because of impact on immune system
Spleen £4,080 to £8,110Minimal or non-existent risk of internal infection

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.

NHS Patient Safety Statistics

NHS resolution publishes an annual report relating to patient safety which includes the number of ‘never events’ that occur. A never event is a serious avoidable incident if safety guidelines and recommendations had been followed. A never event could involve the following:

  • A surgical procedure on the wrong site
  • Incorrect prosthesis or implant
  • Foreign objects left inside the patient after surgery
  • Wrong medication being prescribed or administered

NHS England reported a total of 131 serious incidents meeting the definition of never events between April and July 2021.

Call us now to find out whether or not you have grounds to sue for compensation and if the Bolam test may apply to your case.

Steps To Take If Negligent Medical Care Harmed You

If you believe you suffered due to medical negligence, you should see another doctor as soon as you can. They can thoroughly examine you and provide the necessary medication, or treatment if required.

Next, you should get in touch with a special solicitor who can review your case. If they find you have good cause to sue for compensation, they could offer you a No Win No Fee agreement.

This is where Legal Helpline can be of assistance. A friendly member of our team can review your case, answer all your questions, and connect you to a No Win No Fee lawyer from our panel provided you have a valid claim. Call us now to find out how we can help secure the right level of compensation for you.

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:

Call today to benefit from free legal advice from one of our experienced and friendly advisers.

Useful Links Related To The Bolam Test Case

Links to other Legal Helpline guides:

Hospital negligence claims

Wrongful death claims

Incorrect medication claims

Links to useful information:

General Medical Council

NHS Resolution

Make a complaint against the NHS.

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