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英美侵权法案例-Bolitho v. City and Hackney Health Authority |
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时间：2008-07-11
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Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. Facts A two-year old boy suffered brain damage as a result of the bronchial air passages becoming blocked leading to cardiac arrest. It was agreed that the only course of action to prevent the damage was to have the boy intubated. The doctor who negligently failed to attend to the boy said that she would not have intubated had she attended. There was evidence from one expert witness that he would not have intubated whereas five other experts said that they would have done so. Judgment The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case". On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided. Commentary The House of Lords decision in Bolitho seems to be a departure from the old Bolam test, established by the Queen's Bench Division in a 1957 case Bolam v. Friern Hospital Management Committee. According to that test, which has been criticised by academic commentators, a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion. However, the Court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare". |
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