`... in cases of diagnosis and treatment there are cases where, despite a body of
professional opinion sanctioning the defendant's conduct, the defendant can
properly be held liable for negligence... In my judgment that is because, in some
cases, it cannot be demonstrated to the judge's satisfaction that the body of
opinion relied upon is reasonable or responsible. In the vast majority of cases
the fact that distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of adopting a particular
medical practice, a reasonable view necessarily presupposes that the relative
risks and benefits have been weighed by the experts in forming their opinions.
But if, in a rare case, it can be demonstrated that the professional opinion is not
capable of withstanding logical analysis, the judge is entitled to hold that the
body of opinion is not reasonable or responsible. I emphasise that in my view it
will very seldom be right for a judge to reach the conclusion that views genuinely
held by a competent medical expert are unreasonable. The assessment of
medical risks and benefits is a matter of clinical judgement which a judge would
not normally be able to make without expert evidence... it would be wrong to
allow such assessment to deteriorate into seeking to persuade the judge to prefer
one of two views both of which are capable of being logically supported. It is
only where a judge can be satisfied that the body of expert opinion cannot be
logically supported at all that such opinion will not provide the bench mark by
reference to which the defendant's conduct falls to be assessed...' p. 243)Bolithosaid nothing new, but caused a lot of unnecessary hysteria [5]. It was
dubbed a claimant's charter'. It was feared that it would encourage medically illiterate judges to substitute their own uninformed views of what was medically reasonable for the views of distinguished practitioners. It is unlikely, as the cited passage clearly states, to have that effect in many cases. But it will have the effect of making experts look more critically at the practices they are defending. It will not lead to a proliferation of litigation, but it might lead to a proliferation of footnotes in expert reports. The requirement that practice, to be defensible, has to beresponsible', begs the
question of whether, in a clinical world increasingly dominated by evidence based
medicine, a practice which the literature clearly shows leads to statistically worse
results than another economically comparable practice, can sensibly be said to be
`responsible'. It is likely to be found irresponsible not to adopt an evidence based
approach, and irresponsible not to adopt an intelligent strategy in deciding which
evidence based approach to use. It may be that the clinical negligence cases of the
future will be battles between statisticians, with the issue to be decided by the
judge being whether the published results which are said to justify a particular
clinical approach really do justify it.
The standard which the law expects of practitioners is the standard which is
appropriate to a person undertaking the relevant task. Thus a nurse undertaking
the work which normally and appropriately) a senior house officer would do
undertakes to do it as well as a senior house officer would [6] and cannot complain
if she is judged by that standard [7].
The standard of care expected is decided by reference to the post occupied by
78 Nursing Law and Ethics