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The Bolam Supremacy
The end of 2013 and beginning of 2014 coincided with a string of High Court clinical negligence cases decided in favour of defendants, including Nyang v G4S Care and others  EWHC 3946 (QB); Ali Shah v North West London Hospital NHS Trust  EWHC 4088 (QB); Sardar v NHS Commissioning Board  EWHC 38; Jones v Portsmouth Hospitals NHS Trust  EWHC 42 (QB); C v North Cumbria University Hospitals NHS Trust  EWHC 61 (QB); and Aspinall v Secretary of State for Health  EWHC 1217 (QB).The Claimant’s appeal in Meiklejohn v St George’s Healthcare NHS Trust  EWHC Civ 120 was dismissed.
A careful reading of these cases militates against any broad generalisations. Certainly it would be preposterous to suggest that a string of poor results for Claimants is evidence of any judicial tendency. If a single theme can be identified in these cases it is the obvious care and authority with which those trial judges identify and analyse the issues in dispute.
These cases demonstrate almost textbook examples of experts departing from their duty to the court, CPR 35.3 and “The Ikarian Reefer”  2 Lloyd’s Rep 68. So,
- Loss of impartiality, straying into advocacy for the claimant (Sardar);
- An expert giving evidence on a specialism not within his area of expertise (Sardar);
- Failure to take full and proper account of the factual evidence (Sardar; Aspinall; Nyang);
- Failure of an expert to answer questions directly and being evasive (Ali Shah);
- Changes or apparent changes of opinion by an expert can fatally undermine the claim (Ali Shah, Jones v Portsmouth);
- Failure to take into account developments in medical literature or relying on otherwise outmoded thinking (Sardar).
These cases perhaps reinforce a point which will be familiar to most clinical negligence practitioners which does not necessarily lose force by repetition which is the problematic interface of the duty owed by an expert witness to the court and the application of the Bolam test.
As the application of the Bolam test means that the position of the Defendant’s expert is to defend a reasonable view, a claimant’s expert may strain to articulate a contrary view in language compatible with that test. So, for example, no judge could be satisfied that praying in aid the hypothetical conduct of the “good” or “wise” or “cautious” professional was consistent with Bolam (Ali Shah).
In C v Cumbria the judge praised the claimant’s experts for their evidence but found that they had set the bar of reasonableness too high, adopting a highly cautious approach. If a case hangs on the relatively narrow ground of what is reasonable it is vital that experts are able to give cogent and compelling explanation as to why the actions of a medical practitioner do not comply with Bolam as well as having a clear and demonstrable understanding of how the test applies. The failure to do this means not only the loss of the case, but a finding that the expert has departed from his or her duty to the court.
Martyn McLeish is the author of the chapter of Duty of Care in Lewis & Buchan, Clinical Negligence: A Practical Guide (7th Edition)