"Discuss the different interpretations of 'the Bolam test' (see Bolam v Friern Hospital Management Committee [1957] 2 All ER 118). Critically evaluate the impact of the Bolam test in relation to key cases, particularly with reference to the Bolitho case.

 The Bolam test has been applied unquestioned since the 1980s. The exception is traced in Hucks v Cole, a case decided in 1968 but only reported in 1993 when rescued from obscurity in the case of Bolitho. In Hucks, a doctor failed to treat with penicillin a patient who had sceptic places on her skin containing organisms capable of leading to puerperal fever. The Court of Appeal found the defendant negligent although a distinguished body of medical opinion gave evidence that in the particular circumstances, they would not have treated the patient with penicillin. Sachs LJ had justified his decision for not applying the Bolam standard on the basis that even when there is a group of practitioners which would have acted as the defendant did "… the court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well known advance in medical knowledge …" . This case is normally viewed to be the strongest judicial statement against the Bolam standard.  Sachs LJ statement however emphasises on the need to scrutinise the reasoning of expert witnesses (as interpreted in Bolam). Hence, it cannot easily be used as authority for the courts to override the considered opinion of one group of medical experts .

This stance is certainly an exception, as the vast majority of cases in the following decades had been proven to implement the rule in Bolam and expand it to all situations of medical malpractice.

 In the 1990's, Bolam has been considered in Whitehouse v Jordan, a case on treatment; extended in Sidaway v Board of Govenors a case debuted on diagnosis; similarly endorsed in Maynard v West Midlands and had many indirect implications in a number of other cases of medical malpractice.

In Whitehouse v Jordan the trial judge found the defendant negligent, although it was stated that the decision to perform a trial of concepts was a reasonable one. The judgment itself is controversial, illustrating the confusion Bolam has projected on judges themselves. On appeal however, Lord Denning stated that an error in clinical judgment could not constitute a negligent act. The House of Lords, rejected Lord Denning's dicta, and ruled that an error of clinical judgement could amount to negligence provided that it would have been made by a reasonably competent professional. Lord Edmund Davis acknowledged that "… acts or omissions in the course of exercising clinical judgement may be so glaringly below proper standards as to make a finding of negligence inevitable … [d]octors and surgeons fall into no special category …" . However, falling in the recognition of Bolam's dominance( to be more specific, using the Bolam test as an escape route not to impose liability), the House of Lords held that the defendant was not liable since the expert witness were divided. Thus, it was alleged that the plaintiff had not managed to prove that Mr. Jordan had acted in accordance with no responsible body of medical opinion.

        In Sidaway v Bethlem RHG . The plaintiff, being unable to allege negligent treatment since the operation was carried out with due care claimed in breach of the surgeon's duty to warn her of all possible risks involved, hence depriving her of giving an 'informed consent' to the operation. The courts found on the indubitable application of the customary practice defence that the surgeon, in failing to warn of the particular risk had acted in accordance with acceptable medical practice. Both the court of appeal and House of Lords addressed the question of the extent to which the practitioner is required to inform the patient on the risks involved in the treatment. All six Lords, although not clear neither consistent in their argumentative routes, concluded that the doctrine of informed consent based on full disclosure of all the facts to the patient is not applied as such under English law. In Lord Scarman's own words "the standard of care is a matter of medical judgment". In this case, the deference to medical opinion as opposed to the court's opinion, is even more evident than in Whitehouse v Jordan.

        In Maynard v West Midlands RHA , a case synchronous with Sidaway, the plaintiff alleged that her consultants were negligent in deciding to carry out an exploratory operation to determine whether she was suffering from Hodgkin's disease which resulted to damage to her laryngeal nerve. Had they waited for the results of the test for tuberculosis, the operation would have been unnecessary. Again the case reached the House of Lords and failed on the basis that the defendants were able to show that a responsible skilled body of medical men would have acted as they had done. Lord Scarman again stressed the importance of the Bolam test and also acknowledged, that the judge is not competent or permitted under the current test to decide on a case based on his 'preference' of one medical opinion over another.

        In addition, the customary practice defence as interpreted by Sidaway was also found to apply to disclosure of information and consent in cases of non-therapeutic procedure. This was established in Gold v Haringey , where the plaintiff had an unsuccessful contraceptive sterilisation. Her claim failed; the judges of the Court of Appeal arguing that a distinction between therapeutic and non-therapeutic procedures would be a departure from the principles in Bolam. Thus, Bolam even provided justifications to doctors' clinical discretion in situations of no pressure or urgency. The same principle was supported in Blyth v Bloomsbury .

        It is clear from all the above that the Bolam standard is respectively established as the relevant test in assessing the standard of care required in an action in negligence as far as malpractice in treatment, disclosure of information and diagnosis are concerned.

 The Bolam standard was so readily adopted for a number of reasons; some are in occasions addressed by the courts. Firstly, since medicine is a special body of knowledge it is not easily understood or judged from the outside. Thus, cases of medical malpractice are not readily susceptible to being second guest by those untrained in medical matters. Accordingly, judges trained to understand and judge upon matters of law find it difficult to decide upon technical matters that expert witness statements rely upon . Secondly, the courts have gone out of their way, especially in medical negligence, to protect the reputation of medical professionals. In addition, it has to be mentioned that, members of that profession generally enjoy a respectable and responsible profile since it has this particularity of being responsible for people's life. This realisation makes it difficult for any person to cast doubt on the efficiency of their practices. Accordigly, judges themselves are very reluctant to identify medical malpractice's furthermore to regulate some aspects of their practices. In Whitehouse for example, Lawton LJ , endorses Lord Denning's conclusion on an earlier decision  ,where the later puts forward the argument  that in cases involving an attack on the reputation of a medical man, the more serious the implications of the injury suffered by the patient the more difficult it will be to satisfy the burden of proof.. Thirdly, doctors are seen to choose this profession motivated by altruistic reasons and as such it would scarcely be just to penalise them every time they make an error. It would be disruptive of medical practice and the doctor-patient inevitably unbalanced relationship to encourage medical negligence claims. Most often a decision in favour of the plaintiff, "would be damaging to the relationship of trust and confidence between doctor and patient and might well have an adverse effect on the practice of medicine … " as Dunn LJ expressed it in Sidaway . Lastly the courts frequently argue upon their fears for an expansion of defensive medicine. If doctors feel that they are likely to be sued, their professional practice will be driven by these concerns rather than being focused purely on acting in the best interest of the patient.

These are the underlining reasons for which, a decision of a low court has become the test used in assessing allegations for medical malpractice. It is clear from the above discussion on the wide