Bolitho v. City and Hackney Health Authority (1997)

Under Bolam v Friern Hospital Management Committee a doctor is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion. Read literally, that lets the profession set its own standard: find enough honest experts to say "I would have done the same" and the claim fails.

Bolitho adds the qualification every medical-negligence answer needs: the expert opinion must have a logical basis. The court is not bound to accept it just because it is genuinely held. But the House stressed that rejecting such opinion will be rare.

The case also clarifies causation where the breach is an omission — a doctor who failed to attend.

Patrick Bolitho, aged two, was admitted to St. Bartholomew's Hospital with croup. On 17 January 1984 he had two episodes of acute breathing difficulty, at about 12.40 p.m. and 2 p.m. Each time Sister Sallabank called the senior paediatric registrar, Dr. Horn. Neither Dr. Horn nor the senior house officer, Dr. Rodger, came; Dr. Rodger's evidence was that her bleep had flat batteries. Between the episodes Patrick recovered quickly and was active and playing.

At about 2.30 p.m. his respiratory system became entirely blocked and he suffered a cardiac arrest. He suffered severe brain damage and later died; his mother continued the action as administratrix of his estate.

The defendants accepted that Dr. Horn was in breach of duty in not attending or arranging a suitable deputy. It was common ground that intubation before the final episode would have prevented the cardiac arrest. The trial judge (Hutchinson J.) accepted Dr. Horn's evidence that had she attended she would not have intubated. Eight distinguished experts were divided: five for the plaintiff said any competent doctor would have intubated; three for the defendants, led by Dr. Dinwiddie, said intubation would not have been appropriate. The judge held that both views represented a responsible body of professional opinion, so causation was not proved. The Court of Appeal dismissed the appeal by majority, Simon Brown L.J. dissenting.

1. How is causation proved when the negligent act is an omission — and does the Bolam test play any part in it?
2. Is a court bound to accept a body of professional opinion as responsible merely because genuine, distinguished experts hold it?

The appeal was dismissed.

Causation where the breach is an omission

The burden remains on the plaintiff to prove that the breach caused the injury. Where the breach is an omission, the factual inquiry "is, by definition, in the realms of hypothesis." The question "what would Dr. Horn or Dr. Rodger have done if they had attended?" is one of fact, and "the Bolam test had no part to play in determining the first question".

But that is not the end: a defendant "cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter." So the judge had two questions: "(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 those questions but is central to the second." The trial judge had asked both questions and had not misdirected himself.

The logical-basis qualification to Bolam

Lord Browne-Wilkinson accepted the appellant's submission in part: "the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice."

The adjectives used in Bolam and Maynard — responsible, reasonable and respectable — "all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis." Where risks are weighed against benefits, the judge must be satisfied that the experts "have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."

He relied on Hucks v. Cole (Court of Appeal) and Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master (Privy Council), where a practice almost universally followed was still held negligent.

The test: "if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible."

The emphasis on rarity

"I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable." Assessment of medical risks is clinical judgment. A judge must not be persuaded simply "to prefer one of two views both of which are capable of being logically supported."

Application

This was "plainly" not one of those rare cases. Patrick had recovered quickly from both crises and was active; intubation is itself an invasive procedure with risks. It could not be suggested "that it was illogical for Dr. Dinwiddie a most distinguished expert to favour running what, in his view, was a small risk of total respiratory collapse rather than to submit Patrick to the invasive procedure of intubation."

(1) Where the breach is a failure to attend, causation is proved if the plaintiff shows either that the doctor would in fact have taken the action that would have avoided the injury, or that failing to take it would itself have been negligent; Bolam is irrelevant to the first question and central to the second. (2) A body of professional opinion satisfies Bolam only if it is responsible, reasonable and respectable, which requires that it have a logical basis; in a rare case where the opinion cannot withstand logical analysis, the court may reject it, even though genuine experts hold it.

• Direct question: Explain the Bolam test and the modification made to it in Bolitho. Give the Bolam formula, then the "logical basis" requirement, then the "rare case" caution.
• Indian context: this case is the English authority you cite alongside Indian medical-negligence cases such as Jacob Mathew v State of Punjab; say clearly that Bolitho is a House of Lords decision.
• Problem question on causation: a doctor fails to attend; would the treatment have been given? Use the two questions — what would the doctor have done, and would not doing it have been negligent.
• Essay angle: Do courts defer too much to doctors? Bolitho allows the court the last word, but only in a rare case.