浅谈“Bolam test”界定疏忽及过失在英联邦法系中的应用
Examination of “Bolam test”applies in negligence by Rogers v Whitaker.
赵毅
【摘要】一个右眼全盲的病人看病，医生建议通过手术可以使右眼复明。手术后，病人的右眼不但没有复明，那维持生活的左眼也瞎了。病人起诉医生因为疏忽没有警告她手术有失明的可能，虽然这个风险仅有1.4万分之一。试想，是否医生要对所有拔牙的病人逐一的警告：局部麻醉是会致命的，虽然只有万分之一的可能性？
【关键词】Bolam test; Negligence; Rogers v Whitaker;5o&5p.
【全文】
1. Briefly describe the relevant facts and the history of the case.
The respondent is Maree Whitaker (patient). The appellant is Christopher Rogers (ophthalmic surgeon). Maree Whitaker’s right eye had been injured when her age of nine. She had been almost full blind in her right eye, but she had lived a leastways normal life already 40 years because she has a good lift eye. Maree Whitaker consulted with Christopher Rogers who advised her make an operation on the injured eye on 22 May 1984. 1 This operation would restore sight to her injured eye and improve its appearance. The surgical procedure was carried out on 1 August 1984. On the contrary, the respondent developed a condition known as ’sympathetic ophthalmia’ in her left eye.2 In the end she lost all sight in her left eye, and as there had been no restoration of sight in her right eye, she was almost totally blind.
Maree Whitaker commenced proceedings appellant for negligence in the Supreme Court of New South Wales and obtained judgment in the amount of $808,564.38. 3 But Christopher Rogers could not accept and he appealed to the Court of Appeal of New South Wales. Because Court of Appeal of New South Wales had been dismissed Rogers appeal, 4 so then he appeals to High Court by special leave.
2. What was the principal issue in the case?
Appellant has appealed to the High Court on the questions of breach of duty and causation. Appellant argues relied on Bolam principle test on medical negligence litigation. The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. 5 Professional opinion is of significance in negligence actions. Some practitioners treat the Bolam test, when more experts who are ostensibly qualified and responsible can be found to give evidence in support of the defence that is conclusive of the issue in the case. That is clearly not the law, nor is it the way cases are decided in practice.6 In other words, the standard of care owed to a patient in all things is determined by medical judgment. So if under the Bolam test the appellant is not negligent if he has conformed to responsible professional practices.
