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the part of the doctor :
"To establish liability by a doctor where deviation from normal practice
is alleged, three facts require to be established. First of all it must be
proved that there is a usual and normal practice; secondly it must be
proved that the defender has not adopted that practice; and thirdly (and
this is of crucial importance) it must be established that the course the
doctor adopted is one which no professional man of ordinary skill would
have taken if he had been acting with ordinary care."
24. In Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1
All ER 643, the House of Lords, per majority, adopted the Bolam test, as
the measure of doctor’s duty to disclose information about the potential
consequences and risks of proposed medical treatment. In that case the
defendant, a surgeon, warned the plaintiff of the possibility of disturbing
a nerve root while advising an operation on the spinal column to relieve
shoulder and neck pain. He did not however mention the possibility of
damage to the spinal cord. Though the operation was performed without
negligence, the plaintiff sustained damage to spinal cord resulting in
partial paralysis. The plaintiff alleged that defendant was negligent in
failing to inform her about the said risk and that had she known the true
position, she would not have accepted the treatment. The trial Judge and
Court of Appeal applied the Bolam test and concluded that the defendant
had acted in accordance with a practice accepted as proper by a
responsible body of medical opinion, in not informing the plaintiff of the
risk of damage to spinal cord. Consequently, the claim for damages was
rejected. The House of Lords upheld the decision of the Court of Appeal
that the doctrine of informed consent based on full disclosure of all the
facts to the patient, was not the appropriate test of liability for negligence,
under English law. The majority were of the view that the test of liability
in respect of a doctor’s duty to warn his patient of risks inherent in
treatment recommended by him was the same as the test applicable to
diagnosis and treatment, namely, that the doctor was required to act in
accordance with the practice accepted at the time as proper by a
responsible body of medical opinion. Lord Diplock stated:
"In English jurisprudence the doctor’s relationship with his patient
which gives rise to the normal duty of care to exercise his skill and
judgment to improve the patient’s health in any particular respect in
which the patient has sought his aid has hitherto been treated as a
single comprehensive duty covering all the ways in which a doctor is
called on to exercise his skill and judgment in the improvement of the
physical or mental condition of the patient for which his services either
as a general practitioner or as a specialist have been engaged. This
general duty is not subject to dissection into a number of component
parts to which different criteria of what satisfy the duty of care apply,
such as diagnosis, treatment and advice (including warning of any risks
of something going wrong however skillfully the treatment advised is
carried out). The Bolam case itself embraced failure to advise the
patient of the risk involved in the electric shock treatment as one of the
allegations of negligence against the surgeon as well as negligence in
the actual carrying out of treatment in which that risk did result in
injury to the patient. The same criteria were applied to both these
aspects of the surgeon’s duty of care. In modern medicine and surgery
such dissection of the various things a doctor has to do in the exercise
of his whole duty of care owed to his patient is neither legally
meaningful nor medically practicable\005.\005 To decide what risks the
existence of which a patient should be voluntarily warned and the
terms in which such warning, if any, should be given, having regard to
the effect that the warning may have, is as much an exercise of
professional skill and judgment as any other part of the doctor’s
comprehensive duty of care to the individual patient, and expert
medical evidence on this matter should be treated in just the same way.
The Bolam test should be applied."
Lord Bridge stated :
the part of the doctor :
"To establish liability by a doctor where deviation from normal practice
is alleged, three facts require to be established. First of all it must be
proved that there is a usual and normal practice; secondly it must be
proved that the defender has not adopted that practice; and thirdly (and
this is of crucial importance) it must be established that the course the
doctor adopted is one which no professional man of ordinary skill would
have taken if he had been acting with ordinary care."
24. In Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1
All ER 643, the House of Lords, per majority, adopted the Bolam test, as
the measure of doctor’s duty to disclose information about the potential
consequences and risks of proposed medical treatment. In that case the
defendant, a surgeon, warned the plaintiff of the possibility of disturbing
a nerve root while advising an operation on the spinal column to relieve
shoulder and neck pain. He did not however mention the possibility of
damage to the spinal cord. Though the operation was performed without
negligence, the plaintiff sustained damage to spinal cord resulting in
partial paralysis. The plaintiff alleged that defendant was negligent in
failing to inform her about the said risk and that had she known the true
position, she would not have accepted the treatment. The trial Judge and
Court of Appeal applied the Bolam test and concluded that the defendant
had acted in accordance with a practice accepted as proper by a
responsible body of medical opinion, in not informing the plaintiff of the
risk of damage to spinal cord. Consequently, the claim for damages was
rejected. The House of Lords upheld the decision of the Court of Appeal
that the doctrine of informed consent based on full disclosure of all the
facts to the patient, was not the appropriate test of liability for negligence,
under English law. The majority were of the view that the test of liability
in respect of a doctor’s duty to warn his patient of risks inherent in
treatment recommended by him was the same as the test applicable to
diagnosis and treatment, namely, that the doctor was required to act in
accordance with the practice accepted at the time as proper by a
responsible body of medical opinion. Lord Diplock stated:
"In English jurisprudence the doctor’s relationship with his patient
which gives rise to the normal duty of care to exercise his skill and
judgment to improve the patient’s health in any particular respect in
which the patient has sought his aid has hitherto been treated as a
single comprehensive duty covering all the ways in which a doctor is
called on to exercise his skill and judgment in the improvement of the
physical or mental condition of the patient for which his services either
as a general practitioner or as a specialist have been engaged. This
general duty is not subject to dissection into a number of component
parts to which different criteria of what satisfy the duty of care apply,
such as diagnosis, treatment and advice (including warning of any risks
of something going wrong however skillfully the treatment advised is
carried out). The Bolam case itself embraced failure to advise the
patient of the risk involved in the electric shock treatment as one of the
allegations of negligence against the surgeon as well as negligence in
the actual carrying out of treatment in which that risk did result in
injury to the patient. The same criteria were applied to both these
aspects of the surgeon’s duty of care. In modern medicine and surgery
such dissection of the various things a doctor has to do in the exercise
of his whole duty of care owed to his patient is neither legally
meaningful nor medically practicable\005.\005 To decide what risks the
existence of which a patient should be voluntarily warned and the
terms in which such warning, if any, should be given, having regard to
the effect that the warning may have, is as much an exercise of
professional skill and judgment as any other part of the doctor’s
comprehensive duty of care to the individual patient, and expert
medical evidence on this matter should be treated in just the same way.
The Bolam test should be applied."
Lord Bridge stated :
