Explain the difference in assessing the breach of duty for negligent doctors compared to the ordinary person.

The key to answering this question is by establishing that breach of duty is the third element of the tort of negligence. It comes after identification of damage and a duty of care, and before establishment of causation. The important aspect regarding breach of duty is to apply the reasonable person test, established in the case of Blyth v Birmingham Waterworks. This case defined 'fault' as doing something that a reasonable person would not do, or not doing something that a reasonable person would do. It is used for the ordinary person to establish whether or not they have breached the duty of care to the victim.
However, regarding professionals such as doctors, these defendants cannot be compared to the reasonable person because their standard in their profession regarding knowledge and expertise would be much higher. The case of Bolam therefore set out a two stage test that said "a doctor is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular act". This first stage seems pretty straight forward. However the courts go on to make it more confusing by introducing the second part: "...a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion taking a contrary view". This simply means that the fact there are other doctors who would disagree with the defendant's conduct cannot in itself be indicative of fault. The case of Bolitho narrowed this concept however, by stating that the defendant's act must 'withstand logical scrutiny' and this can be assessed by a judge in court. This is a demonstration of the courts taking back control of the law of medical negligence.

Answered by Eva R. Law tutor

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