General Cases >> Negligence >> Case 1 / Case 2 / Case 3 / Case 4 / Case 5 / Case 6 / Case 7 / Case 8

Bolitho v City and Hackney Health Authority 1997 (House of Lords) - Negligence case

Court Decision

This case has revised the test for a standard of care in medical negligence cases. It modifies the Bolam test and provides an opportunity for a new approach to expert evidence for determining the standard of care. This case considers the issue of proof of causation when there is an omission as opposed to a positive act. It also questions the extent to which the Bolam test should be applied in determining the outcome of professional negligence cases.

In this case, the defendant accepted that there had been a breach of duty by Dr Horn, as she did not attend Patrick nor did she ensure that a colleague did attend him. Causation then became the important issue. It was generally accepted by both sides that, had Patrick been intubated, then he would not have suffered respiratory distress and cardiac arrest. Therefore, if it could be determined that Dr Horn would have intubated Patrick if she had attended him, then Patrick's mother would succeed in this civil action. If Dr Horn would not have intubated him, then the mother's action could only succeed if failure to intubate went against accepted medical practice, i.e. application of the Bolam test to causation in the event of negligent omission. Based on the facts, the trial judge decided that Dr Horn would not have intubated.

The trial judge questioned what course of action would have been followed by a reasonably competent medical practitioner in the same circumstances. Five expert witnesses stated that any competent doctor would have intubated, while three witnesses for the defence stated that intubation was not appropriate in this particular case. The plaintiff's experts believed that there had been a gradual decline into respiratory failure in the two hours before his death. The defence experts stated that a sudden blockage occurred, probably caused by a mucous plug, and that Patrick's condition was inconsistent with that of a child passing through stages of gradual progressive hypoxia.

Thus there were two opposing bodies of medical opinion, each with responsible views, and so the judge concluded that it was not for him to choose which he preferred. The decision was that it had not been proven that Dr Horn's breach of duty caused the damage in question. The House of Lords agreed with the original decision by the initial judge and the majority decision of the Court of Appeal, as the right questions had been asked and considered by the judge. Lord Browne Wilkinson, giving the judgment of the House of Lords explained that:

"The two questions which he had to decide on causation were (1) What would Dr Horn have done, or authorised to be done, if she had attended Patrick? And (2) if she would not have intubated would that have been negligent? The Bolam test has no relevance to the first of the those questions but is central to the second."

In the Court of Appeal and House of Lords, Patrick's legal team had tried to argue that it was for the court and not for doctors to decide the standard of care in a negligence case. The House of Lords partly agreed with this argument and concluded that the court is not bound to hold that a doctor can escape liability for negligence merely by producing evidence from a number of experts that his opinion followed sound medical practice.

Lord Browne-Wilkinson stated that in the majority of cases the fact that distinguished experts are of a particular opinion will demonstrate that the professional opinion is reasonable, and only in rare cases might it be possible to demonstrate that the professional opinion does not withstand logical analysis. This is important as it now allows the court to choose in appropriate cases between two bodies of opinion, if the judge is unable to logically accept one of the medical opinions. In future, experts must be prepared to give reasons for their opinions and be able to defend them. In the Bolitho case, the trial judge heard that intubation is not a procedure which is risk free. It is a major invasive undertaking which is associated with mortality and morbidity, and involves anaesthetising a young child. The appeal therefore failed. The decision was unanimous.

Back