Medical mistakes were likely to be more common in times when science and technology were more primitive. Yet claims for damages were almost non-existent before the 20th century, until a series of important cases helped shape the legal landscape we live in today.  

The NHS now receives thousands of medical negligence claims each year in relation to topics such as maternity, surgery and cancer diagnosis. A new scheme has also been setup this year to handle patient claims relating to the coronavirus outbreak.

So how did we get here? Below, we highlight two monumental cases in the history of medical negligence law in the UK.

Establishing a duty of care

Up until the early 20th century, the only way to claim compensation for negligence was through contract law. Doing so was easier in relation to products than it was the relationship between a medical professional and their patient, until the Donoghue v Stevenson case of 1932 helped establish duty of care.

Mrs Donoghue contracted a severe case of gastroenteritis after consuming a bottle of ginger beer with a decomposing snail inside. Her case was eventually heard by the House of Lords, who judged that the manufacturer had a duty of care to not cause injury to their customers.  

While the case related more closely to personal injury, its implications were also significant for medical professionals and their responsibilities towards patients.    

Bolam vs Friern Hospital Management Committee

Another case some 25 years later became crucial in highlighting why the evidence of medical experts is highly important in deciding whether negligence has occurred. 

Mr Bolam made a claim against the Friern Hospital Management Committee in 1957 after he had undergone voluntary electro-convulsive therapy. The controversial treatment caused Mr Bolam to flail around to such a degree that he fell from his table and severely injured his pelvis. He argued that he should have been given relaxants, restrained by the doctors and warned about the risks of the treatment beforehand. 

After hearing information from medical professional witnesses, the jury decided that no negligence had taken place. Muscle relaxants were not favoured in the profession, while retaining patients was also potentially dangerous. It was also common not to warn patients of risks when the level of risk was relatively low.   

Implications of the Bolam Test

‘The Bolam test’, derived from Mr Bolam’s case, was fundamental in shaping modern clinical negligence law and how negligence must be judged by fellow medical professionals, not judges. 

Today patients must prove that their care fell below reasonably expected standards and that their injury or illness was a direct result. As part of this process, claimants need to collect a medical report from an independent medical professional to judge whether anything could or should have been done differently.  

Medical negligence law remains an area of intense debate, so further legal shifts could well be on the horizon in a period of increased NHS activity.