In existing law, the standard of care has been set by the courts, advised by experts in the relevant field; if a practitioner fails to achieve the required standard in his or her care of the patient, he or she will be found to be negligent. The law was set out by McNair J in Bolamv EdeiQ Hospital MgQgO§m§n!...C°mmitíe®...[1.95Z]:

„.where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been the test of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill: it is well established law that it is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art.. .he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

Most common law jurisdictions accept almost identical tests (e.g. Ireland, Australia, New Zealand, and South Africa). The United States standard of care has been stated thus: 'A physician has a legal duty to exercise that degree of knowledge, care, and skill that is expected of a reasonably competent practitioner in the same class in which he belongs, acting in the same or similar circumstances' (AILS 1993). Whilst this is almost identical to Bolam, it may be that the phrase 'in the same class in which he belongs' could allow differentiation between trainees and the trained (see below).

Thus it is not required that the standard of care be at the highest, but merely ordinarily competent, and it is a defense that the doctor's actions would be acceptable to a responsible body of practitioners, even if a minority (referred to as the responsible minority defense). Whether the care was actually negligent may be decided by a court, advised by experts. Many experts may advise, differently, and the lawyers or the judge (or jury in some jurisdictions outside the United Kingdom) may have to decide between the expert evidence. (It would be logical to conclude that if a recognized expert supports a course of action, then so does a responsible body of opinion; this is an oversimplification.)

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