ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Medical Negligence and Law

Application of the Bolam and Bolitho Rules in India

India has adopted the Bolam rule from the United Kingdom and has been using it to adjudicate cases of medical negligence. The evolution of the Bolam rule in the UK as well as the way the rule is applied in India by the Supreme Court reflects a balance between judicial intervention and deference to medical expertise. Although it is settled that it is the courts and not medical experts who must finally decide on whether the conduct of a doctor is negligent, the standards to be used when evaluating expert evidence and the extent to which such cases must be deferred to are evolving. The Supreme Court has not clearly stated the judicial standard against which it will test these differing opinions of medical experts and has not been consistent in its willingness to do so. Therefore, the application of the Bolam rule in India has been inconsistent and this is likely to have an impact on the decisions made by medical practitioners.

The Bolam rule has become a standard in medical jurisprudence in the United Kingdom (UK) and in India. In the recent past, this rule has been consistently applied in order to determine whether doctors have been guilty of negligence. Over time, this rule has evolved and has become the foundation for discussions surrounding the conduct and level of skill the courts can expect from doctors, and more importantly, where from these conduct and level of skills should be derived. This is important because neither judges nor doctors can work on their own to decide what standards must be used when deciding cases of medical negligence. The laws in India acknowledge the role of deference when dealing with subjects in which judges and lawyers may not possess any expertise, by allowing them to refer to expert opinion in accordance with the Indian Evidence Act, 1872. However, this deference is not absolute in nature as the courts are not bound by these opinions. Experts increase the amount of information available to a judge so as to make the right decision. However, expert evidence can never take away the authority of the court as being the final arbiter in a case such as in Dayal Singh v State of Uttaranchal (2012).

The Bolam v Friern HMC (1957) case (henceforth, Bolam case/rule) has its origins in a similar rationale. It posits that doctors need to act with only a reasonable amount of skill, which is normally expected from a professional in the medical community. However, the rule has been criticised for the manner in which it has been applied by courts in the UK. The rule has put too much power in the hands of the medical practitioner and eroded the adjudicatory powers of the court with respect to cases of medical negligence (Brazier and Miola 2000). Under the Bolam rule, doctors not only prescribe the standards to be followed by members of the profession, but also suggest how the transgressions of their peers are to be judged (Brazier and Miola 2000).

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Updated On : 2nd Feb, 2021
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