Medical negligence: making a case for the Bolitho test in determining negligence cases in Kenya.

Abstract

In Bolam v Friern Hospital Management Committee the Bolam test was set out for breach of duty of care to be constituted by acting contrary to standard of procedure which comes from the opinion of a body of expert opinion. The problem with this was the weight that it gave an expert opinion was greater than all other evidence that is produced before the court and solely focused the court on established practice. The Bolitho test from the case of Bolitho v City and Hackney Health Authority, came as a replacement for the test with its focus on the reasonableness of practices undertaken in the delivery of medical care, its focus shifted from what ought to be done in a situation ignoring the unique variables and went to whether the actions undertaken considered the patient’s safety regardless of the body of expert medical opinion being in contradiction. In Kenya, the standard test for the determination of negligence is the use of the Bolam test as seen in the case of Trustees Registered Maua Methodist Hospital v Penina Thirindi Koome (Suing as the Legal Representative of Rooney Mutharimi (Deceased) where the test was restated that breach of duty of care arises from the deviation from the normal practices to be determined by a responsible body of opinion of medical practitioners. This test has been restated in a majority of the cases of medical negligence with courts rarely ruling contrary to their opinion.