Case Study On Medical Malpractice

745 Words 3 Pages
A breach is established where the D has failed in their duty to care for another, therefore, causing the C’s harm. Shakir may be liable for medical malpractice if his breach of a statutory duty to diagnose properly caused BD. To determine whether he has breached his duty as a doctor, the court will ask several questions that must collectively, not singularly, satisfy the court.

In medical malpractice cases, a breach occurs when the D fails to take reasonable care that a medical professional in the same position would. The actions and omissions of Shakir will be judged against those of other doctors in the community. In other words, Shakir’s conduct will be assessed according to the standard that is reasonably expected of a reasonably competent
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This is referred to as the Bolam test and applies to Shakir because he is considered a ‘skilled’ D. In this case, it was ruled that there is no breach of a standard of care if other medical professionals would have done the same – only cursory examine their patients. However, this test is highly criticised for relying too much on medical experts and personal opinions rather than the circumstances of the case. Also, since she has obtained medical evidence suggesting Shakir should have diagnosed meningitis which would have triggered further investigation at the hospital in Margate, she holds the advantage in establishing a breach. Shakir failed in his duty as a doctor by falling below the standard level of care of reasonably competent one.

Bolam was later modified and restricted by the Bolitho test and is regularly used by the court in determining medical negligence. If expert evidence passes the Bolam test it must also pass the Bolitho test. To Jane’s advantage, this test adds further requirements and provides the court with discretion to decide whether the opinions given by the reasonable, responsible and respectable medical experts are logical. The Bolam test is criticised for favouring doctors because they can escape all liability if most experts selected would have acted the same way. Lord Browne-Wilkinson

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