BOLAM v FRIERN HOSPITAL MANAGEMENT COMPANY

Medical negligence and the values of medical community views, run counter to one another unless such disparity can be reasonably justified.

On this occasion, the rather outlandish practice of electro-convulsive therapy (ECT) resulted in serious injury, when the patient was left partially restrained and therefore vulnerable to harm.

Having attended the Friern Mental Hospital as a voluntary patient, the claimant was left suffering a double fracture of the Acetabulum (pelvic cup) resulting from impact of the head of the femur, when the use of full restraints had been spared.

The use of ECT had been around for a number of years, and while accidents were rare, they were not without incident.

Yet, it was contended by the defendants that in over 50,000 applications, there had only been one case of acetabular fracture reported.

At the point of litigation, the claimant argued that when discussing the procedure with his consultant, there had been no explanation of the risks attached, no mention given as to the possible use of muscle relaxants, and little the use of restraint; aside from two nurses holding his chin and shoulders to avoid him falling from the sofa used; hence a claim for negligence.

In their defence, the defendants contended that the nature of ECT was one that both divided the medical industry, while allowing a discretionary approach to the use of restraints and relaxants.

Both of these drew strong argument to the contrary, as with those who conversely promoted them, while it was also argued that depending on the circumstances, many practitioners elected to withhold any discussion of risk, as it could exacerbate the patient’s fears, thereby discouraging any opportunity to undergo the treatment.

Relying upon expert evidence from a consultant psychiatrist, the court had agreed that in most negligence cases, the objective view of the everyday man was sufficient to establish negligence.

However, in matters such these, the test required greater professional knowledge to mirror the complexities of ECT, while in Hunter v Hanley, it had recently been remarked by Lord President Clyde that:

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.”

Hunter v Hanley

It was then explained by the expert witness that while the avoidance of risk disclosure was one subject to the individual requirements of the case, there was little to endorse withholding the information when the risks were considered so small, and that the use of relaxants was a virtual prerequisite. 

Where restraint was used, there had been instances where the patients were placed into a made bed to avoid excessive limb flailing; however, general medical consensus was that restraint of the feet could result in serious injury when the body was treated like a ‘rigid stick’; and so, the approach used by the defendants was not considered unusual nor frowned upon.

With the facts explained to a discerning jury, the point was made that mere negligence was not one of simple black-and-white thinking, but a cumulative process that began with ignorance of the patient and the attached dangers, and ended with even less  consideration of the outcome, or the injuries sustained.

It was also stressed that the incident itself had occurred nearly four years prior to the hearing; and so, knowledge of ECT had grown beyond that which was known at the time; after which, a lengthy deliberation found the jury returning a verdict in favour of the defendants, while the court reminded the parties that:

“[I]n the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.”