Does it matter if clinical guidelines are not followed?

13 October 2023

Monique Jewett a clinical negligence paralegal considers a recent clinical negligence decision.

What is the Bolam test?

The Bolam test in clinical negligence claims is a common, well-established test to prove whether a medical professional has acted in the same way another medical professional in the same line of practice would have reasonably acted.  This is the standard test used to assess breach of duty in clinical negligence claims.

What are NICE guidelines and why are they used by medical bodies?

NICE (National Institute for Health and Care Excellence) guidelines are widely used by medical professionals to help make decisions surrounding a patient’s treatment with regard to their individual medical condition. The guidelines are there to ensure that medical professionals can provide a reasonable standard of care for their patients even for the most unusual conditions.

In clinical negligence claims, when we instruct medical experts to advise, the expert uses the Bolam test to assess whether the professional body has breached their duty of care by not complying with the NICE guidelines (or their own in-house guidelines), and therefore failed to provide a reasonable standard of care.

In the case of O’Brien (administrators of the estate of John Berry (deceased)) v Guy’s & St Thomas’ NHS Trust (2022)

Mr Berry was suffering from end-stage renal failure, and he was on dialysis. Following a heart attack, he underwent surgery for a stent to be placed. However, he deteriorated and was at risk of sepsis as a result of the surgery. After the surgery he was taken to the ICU and he was given antibiotics. Initially, he was given 80mg of gentamycin which was a lot less than the NICE and the trust’s ICU in-house guidelines recommended which is 280mg. The next day, it was clear the infection was worsening, and he was given dialysis and a further 400mg of gentamycin. This was a significantly higher dosage than the Trust’s own ICU guidelines for patients who were renally impaired, but it was also higher than the equivalent NICE guidelines. As a result, he experienced hearing issues, loss of balance and required a lot of care.

The judge found that the doctor who prescribed the medication was not negligent because even though they had not followed the NICE guidelines or in-house guidelines conservatively, the doctor had been able to manage a potential life-threatening situation following Mr. Berry deteriorating due to the infection. The doctor needed to save Mr. Berry from the life-threatening infection, therefore, this outweighed the need to follow the guidelines closely which justified the doctor administering the higher dosage.

The judge did criticise the ICU’s in-house guidelines and said they should be more straightforward and apply to everyone rather than certain patients.

How does this outcome impact clinical negligence claims now?

From this case, it highlighted that medical experts need to view the treatment alongside the guidelines carefully as even though the guidelines provide professionals with advice on how to provide reasonable care, not following them does not necessarily lead to a breach of duty being established. In this case, the risks of some side-effects following the medication dosage were outweighed by the need to save the patient from a potential life-threatening situation.

However, the professional bodies cannot use this as an example to ignore the guidelines and not consider them in certain circumstances. They are important guides to assist in providing patients with a reasonable standard of care.

What can we do to help?

If you have recently encountered any medical treatment where you may have suffered a negative effect , speak to TRUE today on 0344 854 7000. Alternatively, complete our online contact form and a dedicated member of the legal team will call you back at a time that is suitable for you.

Our solicitors dealing with clinical negligence claims are based at our Newcastle head office but can assist anyone in living in England and Wales with their case.

We offer our clients:

• A free initial, no-obligation assessment
• No Win, No Fee agreements
• Expertise in handling complicated clinical negligence cases