The Bolam Test and the Expert Witness
When you begin working as an expert witness in claims of clinical negligence, it won’t be long before the phrase “The Bolam Test” becomes a staple part of your life. Despite the frequency with which you will use it, the correct and appropriate application of the test can remain one of the most challenging aspects of this work.
Applying the Bolam test requires you to not only form you own opinion on a particular issue, but also to consider other (perhaps opposing) opinions on that same issue that other dental professionals may have, and consider whether those alternative opinions are reasonable. In a case where treatment has clearly and unarguably failed to meet a standard that any dentist would consider as acceptable, then the application of this test is very straightforward. Typically however, there is a big ‘grey area’ that it is your job to explore, and to make some sense of for your instructing party and for the Court. Since it is one of the most fundamental and important roles of an expert witness to understand and apply this test, it is certainly worthy of some further reading.
Firstly, let’s separate the Bolam test from the actual case on which the famous judgement was based. In 1957 Mr John Hector Bolam was a voluntary patient at a mental health institution (Friern Hospital) and suffered significant injuries during electro-convulsant therapy. During this treatment he was not restrained and was not provided with any muscle relaxants. He subsequently sued the committee who ran the hospital (inadvertently becoming the most famous person in clinical negligence), alleging that they were negligent for:
- Not issuing relaxants
- Not restraining him
- Not warning him about the risks involved with the procedure
So what has this case got to do with dentistry? Well, the jury ruled in favour of the hospital and did not consider that their treatment was negligent on the basis that the doctor had followed the medical protocol of the time. A judgement was made which has since established the guidance for assessing whether the appropriate standard of care in skilled professions such as medicine and dentistry has been met, and this remains the case today. Judge McNair stated:
I myself would prefer to put it this way, that he 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. I do not think there is much difference in a sense. It is just a different was of expressing the same though. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proven to be contrary to what is really substantially the whole of informed medical opinion.
In less flowery (and much less sexist) language, it was essentially put that a medical professional will not be considered as negligent if their actions are supported by a responsible body of medical opinion, i.e. their peers. And crucially – this remains the case even if another body of responsible professionals would have acted differently and held an alternative opinion.
The significance of this is that the judgement – thankfully – recognises that healthcare is not an exact science with a singular view on what is right and wrong. Furthermore, it clarifies that an adverse outcome to treatment does not automatically mean that there has been negligence.
The “test”, therefore, is to consider the detail of a case and express an opinion as to whether or not the Defendant (the dentist) acted in a way that would be supported by a responsible body of dentists. This might sound simple, but the mistake some poorly trained expert witnesses make is considering their own opinion to be the reasonable one, and failing to consider within their report how other responsible dentists may have alternative – but equally valid – views.
Perhaps now it is clearer why good expert witnesses are so fundamentally important to the processes involved in clinical negligence. Solicitors, barristers, and judges are unlikely to appreciate that even when treatment is performed well, failures and poor outcomes can – and do – occur. The logical thought process for non-dental professionals is that if a treatment has ended badly, then it must surely have been done badly. A dentist who has experience in the same treatment is uniquely placed to be able to weigh up the available evidence and scientific literature and potentially argue otherwise.
Expert witness work provides a fascinating view of our profession from a different angle, but more importantly ensures that an appropriate outcome is reached when complaints are made and solicitors become involved.
If you think this could be you, sign up to The Dental Expert Witness Course or send us a message for further details.