Doctors Writing Judgments or Judges Writing Prescriptions?: A Critical Approach to Pitch the Two Extremes Expounded in Bolam and Bolitho Tests

Abstract

The orthodox, yet preeminent tests of medical negligence have endangered the healthy balance of doctor - patient and doctor- judge relationships. While Bolam test being inordinately favourable towards medical practitioners, Bolitho remains shrouded in controversy due to its ambiguity. Due to the doctor-centric approach followed by Bolam, the application of the test has been regarded as inappropriate. Thus, reassertion of the role of the doctor in diagnosing and/or treating, and the judge, in determining the appropriate standard of care is of paramount importance. The author engaged in a qualitative research to highlight the imperativeness of pitching the two extremes expounded in the two tests and thereby, to prevent overshadowing each other, further victimizing the victim. Further, a comparative study was conducted taking Singapore, New Zealand, and Malyasia in to contemplation in proposing potential recommendations to augment the current medical negligence litigation process in Sri Lanka.