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Bolam Under Attack: Muller v Kings College Hospital and Webster v Burton Hospitals - David Sanderson, 12 King's Bench Walk

13/04/17. Two judgments handed down this month explore the boundaries of the Bolam principle and limit its application. In the first, Kerr J doubted that Bolam was apposite where the court is concerned, not with a choice between two courses of treatment, but instead with a missed diagnosis. In the second, the Court of Appeal rejected the judge’s application of Bolam, in circumstances where a patient had been entitled to information about risks before deciding between treatment options.

In Muller v Kings College Hospital [2017] EWHC 128 (QB), the claimant had a wound on the sole of his foot. In November 2011 a histopathologist (Dr G) examined a biopsy and diagnosed a non-malignant ulcer. The wound failed to heal and in July 2012 the claimant underwent surgery in the form of a narrow local excision. On this occasion a biopsy revealed a malignant melanoma, necessitating a second extensive operation to remove the tumour. Further investigations revealed that the cancer had spread to the lymph nodes. When the November 2011 biopsy was reviewed, signs of malignant melanoma were found. At trial the judge had to determine whether Dr G’s failure to diagnose the melanoma in November 2011 was a breach of her duty to exercise reasonable skill and care.

The defendant trust submitted that the...

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