The This is determined by using the Bolam

The second step in a case of alleged medical negligence
is to establish whether there has been a breach of the duty of care. The
question is whether the failure to warn of risk, the failure to offer an
alternative caesarean, the failure to examine and the failure to arrive
promptly are breaches of Mr Pupile’s or Dr Retina’s duty of care. The court
would have to be persuaded that they did not act at the time as reasonable
practitioners would have. This is determined by using the Bolam test from Bolam
v Friern Hospital Management Committee1, in which the claimant was
not warned of risks associated with his condition and treatment, similar to Iris’s
instance.  In Bolam it was held “A doctor
is not guilty of negligence if he acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art”2. McNair J stated the test
in Bolam as “the test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not possess the highest
level of skill at the risk of being found negligent. It is well established law
that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art”3. An accused professional
only needs to prove that there is a body of opinion that would have carried out
that act in the same way. Therefore, if Mr Pupile and Dr Retina can prove that
another body of medical professionals in the same field as themselves would
have acted in the same way, it would be difficult for Iris to claim for medical
negligence. This test however, has faced scrutiny as it has made it difficult
to prove breach of duty of care, due to it being easy for the defendant to
prove someone else would have acted in the same way. As well as establishing a
body of opinion who would have acted in the same way, it is important to state
that the size of the body need not be large, as seen in the case of Defrietas v
O’Brien 4, which further increases
the difficulty of Iris claiming for negligence.

1 Bolam v Friern
Hospital Management Committee 1957 2 All ER 118

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2 Jonathan
Herring, Law Express Question And Answer (Pearson Education Limited
2013).

3 Mcnair J in Bolam

4 De freitas v o’brien
& O’connoly 1995 MED LR 108