Bolitho v City and Hackney Health Authority [1997] UKHL 46

A doctor failed to attend a two-year-old child in respiratory distress who later died. The House of Lords clarified the Bolam test, ruling that a court can find a doctor negligent if their supporting expert opinion is not logically defensible.

Facts

Patrick Bolitho, a two-year-old child, was admitted to hospital suffering from croup. He was looked after by two nurses and was under the care of a senior paediatric registrar, Dr. Horn. On two separate occasions, Patrick suffered brief episodes of respiratory distress from which he appeared to recover. On both occasions, the nurses telephoned Dr. Horn, who did not attend to examine the child. A third, final and catastrophic episode occurred, leading to a cardiac arrest, severe brain damage, and subsequent death. The plaintiff, Patrick’s mother, sued the health authority for negligence, alleging that the doctor’s failure to attend and intubate the child caused his death.

Issues

The central legal issue was causation. The plaintiff had to prove that the doctor’s failure to attend caused the death. This involved a two-stage inquiry:

1. What would the doctor have done had she attended?
2. If she would not have intubated, would that decision have been negligent in accordance with the Bolam test?

Dr. Horn gave evidence that even if she had attended, she would not have intubated Patrick. The trial judge accepted this evidence. The key issue for the House of Lords was therefore whether this failure to intubate would have constituted negligence, despite another body of competent medical opinion supporting her decision.

Judgment

The House of Lords unanimously dismissed the appeal, upholding the decisions of the lower courts. The leading speech was delivered by Lord Browne-Wilkinson. He addressed the application of the Bolam test, which states that a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion.

Lord Browne-Wilkinson clarified that the court is not obliged to accept a body of professional opinion as ‘responsible’ if it cannot withstand logical analysis. The court must be satisfied that the opinion has a rational basis.

In my view, 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 was in accord with sound medical practice. … 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.

He further elaborated that a judge would need a strong basis for concluding that the views of a distinguished expert were unreasonable. In applying this principle to the facts, he noted that the trial judge had to weigh the risks of intubating against the risks of not intubating. There were eight expert witnesses who gave evidence. While the plaintiff’s experts argued for intubation, the defendant’s experts argued that the risk of the final catastrophic event was very small and did not justify the risks associated with intubation for a child not in acute distress at the time. Lord Browne-Wilkinson concluded that the defendant’s expert view (that it was acceptable not to intubate) could not be dismissed as illogical. Therefore, the trial judge was entitled to find that Dr. Horn’s decision, had she attended, would not have been negligent.

Implications

The decision in Bolitho is of major significance as it qualifies or adds a ‘gloss’ to the Bolam test. It establishes that it is for the court, not the medical profession, to ultimately determine the standard of care. While a doctor can still defend their actions by showing they followed a practice supported by a body of professional opinion, that opinion is now subject to judicial scrutiny. The court can reject an expert opinion if it is illogical, irrational, or not ‘responsible’. This prevents defendants from relying on expert opinion that does not have a rational basis, empowering the court to adjudicate on the substance of medical practice in rare cases. This is often referred to as the Bolam-Bolitho test.

Verdict: The appeal was dismissed. The defendant health authority was not held to be liable.

Source: Bolitho v City and Hackney Health Authority [1997] UKHL 46