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No Fault System

October 8, 2017

Before going into the "no fault system", we must firstly revisit three landmark cases in the history of medical misadventure. These cases have major impact on the tort law of medical liability.

 

1. Bolam v. Friern Hospital Management [1957]

Mr. Bolam is a voluntary patient at Friern Hospital which is a mental institute. He agreed to undergo electro-convulsive therapy. He was not given a muscle relaxant, and his body was not restrained during the procedure. He struggled violently before the end of the procedure, and he suffered serious injuries including fracture of bones. He sued for compensation. The judge held that what was common practice in a particular profession was highly relevant to the standard of care required. A doctor falls below the appropriate standard, and is negligent, if he fails to do what a reasonable doctor would in the circumstances. This laid down the principle of "Bolam test".

 

2. Bolitho v. City and Hackney Health Authority [1997] [1998]

A child died of croup and the doctor did not attend the patient when she was notified. She breached her duty of care. Mother of the child sued the authority for failure of intubation. The judge held that "Bolam test", need to decide whether the professional opinion relied upon is unreasonable/illogical. Only in a rare case would the courts find that the body of opinion is unreasonable. The case was dismissed because the doctor's only breach of duty was in not coming to see the child and that breach did not cause the child's death. This laid down the principle of "Bolitho test" in which the body of opinion must be logical and reasonable.

 

3. Montgomery v. Lanarkshire Health Board [2015]

An insulin-dependent diabetic was complicated by shoulder dystocia during the delivery. The doctor did not warn her the higher risk of shoulder dystocia in case of a large for gestational age baby (the mother is of a short stature). The baby suffered from cerebral palsy. The mother argued that she should be warned of the risk of shoulder dystocia and advised the alternative of a Caesarean Section. The judge held that the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and if any reasonable alternative or variant treatment. Here comes the term "reasonable patient" instead of "reasonable doctor" as stated in the "Bolam test".

 

From "Bolam test", "Bolitho test" and eventually the Montgomery case, we can find the judgment held is changing progressively. It tends to remove the medical profession from the role of a determinative authority and the patient autonomy becomes much more important. This will definitely bring a lot of tension to the doctor-patient relationship as the doctor is expected to tailor the information according to individual patient needs. It may be easier to carry out in the private setting but will definitely put much more stress on the already over-stretched public health care system. The compensation for the negligence claims is rising especially in the Obstetric claims which represented only 10% of the clinical claims by number but accounted for 50% of the total value of the new claims.

 

May I introduce a new regulatory system here which is known as the "no fault compensation". It means there is no need to establish that any individual  was negligent, the focus is rather on the link between the activity/inactivity and the harm resulting from it. Here are the precedence of different countries. In the USA, the capping of law awards the malpractice thus limiting the contingency fees. In the France, there is administrative law scheme to separate the malpractice from the civil justice system. In the UK, "no fault system" will increase the report of adverse clinical events and facilitate the culture of openness demanded by governance.

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