Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary." 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Patrick ate a large lunch. Main arguments in this case: A medical professional can be held negligent even if the standard of care he or she applied in treating a patient was in accordance with the other professional in his or her field. * Enter a valid Journal (must He submitted that the judge was wrong in law in adopting that approach and that ultimately it was for the court, not for medical opinion, to decide what was the standard of care required of a professional in the circumstances of each particular case. Patrick suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. (APPELLANT) v. CITY AND HACKNEY HEALTH AUTHORITY (RESPONDENTS) ON 13 NOVEMBER 1997 LORD BROWNE-WILKINSON My Lords, This appeal raises two questions relating to liability for medical negligence. Mr Justice Reynolds found that a major issue was, the relationship between the hospital and the doctors, that the hospital was not liable, nor vicariously liable but that the doctors who performed the operation were, negligent. The appeal of the argument was to the judge "as a layman" not a conclusion he had reached on all the medical evidence. said, at p. 397: "When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna--particularly if the risk can be easily and inexpensively avoided. Although the judge does not in turn say so, it was implicit in his judgment that he accepted that Dr. Dinwiddie's view was a reasonable view for a doctor to hold. An appeal to the Court of Appeal was dismissed by Dillon and Farquharson L.JJ., Simon Brown L.J. Bolitho v City and Hackney Health Authority [1998] AC 232. Common to both sides is the recognition that I must decide whether Dr. Horn would have intubated (or made preparations for intubation), and, even if she would not, whether such a failure on her part would have been contrary to accepted practice in the profession." For the reasons which he has given, I, too, would dismiss this appeal. . The ultimate question, however, is not whether the defendant’s conduct, accords with the practices of his profession or some part of it, but whether it conforms, to the standard of reasonable care demanded by the law. ... Bolitho v City and Hackney Health Authority. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating (1) "The court should not accept a defence argument … Click here to remove this judgment from your profile. Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of … Bolitho v City and Hackney Health Authority House of Lords Citations : [1998] AC 232; [1997] 3 WLR 1151; [1997] 4 All ER 771; [1998] PIQR P10; [1998] Lloyd’s Rep Med 26; (1998) 39 BMLR 1. Sister Sallabank also heard the buzzer and sent out a call for the cardiac arrest team. I read him as saying that, without expert evidence he would have thought that the risk involved would have called for intubation, but that he could not dismiss Dr. Dinwiddie's views to the contrary as being illogical. Download PDF Article Metrics; Related Articles; Comments; Cite. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. The dissenting judgment of Simon Brown L.J. is not determinative of the issue of causation. Bolitho v City and Hackney Health Authority [1998] AC 232. He was very white in colour. Special Standards - The skilled defendant Bolitho v City and Hackney Health Authority A child was brought to a hospital suffering from breathing abnormalities. The child died as a result. I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. The test is based on a long line of cases dating back more than a hundred years, but it takes its authority … She described Patrick as being very chatty and interested in reading the letters on a dish. Bolam v Frierm Barnet HMC 1957 1 WRL 582. Intended for healthcare professionals. It was agreed that the only course of action to prevent the damage was to have the boy intubated. Bolitho test: A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. Despite my anxiety as to the result in this particular case, it is to me clear that Hutchinson J. asked the right questions and did not misdirect himself in answering them. Sister Sallabank told Dr. Horn that there had been a notable change in Patrick's colour and that he sounded as though something was stuck in his throat. Mr Jones argued that the obstetrician was negligent on the basis of the test in Bolitho v City and Hackney Health Authority [1998] AC 232, refined in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. There was a change in Patrick's condition. But there is some difficulty in analysing why it was correct. Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." He was revived but there was a period of some nine to ten minutes before the restoration of respiratory and cardiac functions. This would involve a weighing of, risks against benefit in order to achieve a defensible conclusion. The judge held that the evidence of Sister Sallabank and Nurse Newbold as to Patrick's behaviour (which he accepted) was inconsistent with a child passing through the stages of progressive hypoxia. 583. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. richard bolitho pdf Accessibility map of the Kensington Campus, UNSW, for download in PDF format.Sloop of War: Bolitho Series, Book 5. Chappel v Hart … Bolitho v City and Hackney Health Authority This information is only available to paying isurv subscribers. JISCBAILII_CASES_TORT Bolitho v. City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232; [1997] 4 All ER 771; [1997] 3 WLR 1151 (13th November, 1997) HOUSE OF LORDS Lord Browne-Wilkinson Lord Slynn of Hadley Lord NolanLord Hoffmann Lord Clyde OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE BOLITHO (ADMINISTRATRIX OF THE ESTATE OF PATRICK NIGEL BOLITHO), (APPELLANT) v. CITY AND HACKNEY HEALTH AUTHORITY. The claim relates to treatment received by Patrick Nigel Bolitho at St. Bartholomew's Hospital on 16 and 17 January 1984 when he was two years old. I have to say of Dr. Dinwiddie also, that he displayed what seemed to me to be a profound knowledge of paediatric respiratory medicine, coupled with impartiality, and there is no doubt, in my view, of the genuineness of his opinion that intubation was not indicated." When Sister Sallabank returned to Patrick she was extremely surprised to see him walking about again with a decidedly pink colour. However, the judge also expressed these doubts: "Mr. Brennan also advanced a powerful argument--which I have to say, as a layman, appealed to me--to the effect that the views of the defendant's experts simply were not logical or sensible. On the facts of a particular case the answer to the question, whether the defendant’s conduct conformed to approved professional practice may, decide the issue of negligence, and the test has been posed in such terms in a number, of cases. The case of Bolitho v City and Hackney Health Authority dates back to 1997 and concerned the treatment of a sick child in hospital. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. On that basis, the defendants accepted that Dr. Horn was in breach of her duty of care after receiving such telephone calls not to have attended Patrick or arranged for a suitable deputy to do so. Citation Tools. To the extent that the Lord Justice noticed the first question--would Dr. Horn have intubated?--he said that the judge was wrong to accept Dr. Horn's evidence that she would not have intubated. In this case, again the appellant patients appeal was dismissed. The nurse who was observing Patrick summoned Sister Sallabank, a skilled and experienced nurse. Bolitho v City & Hackney Health Authority [1997] Bolton Partners v Lambert (1889) Bonnington Castings v Wardlaw [1956] Borman v Griffith [1930] Boston Deepsea Fishing Co v Farnham [1957] Bottomley v Todmoren Cricket Club [2003] Bourhill v Young [1943] Bower v Peate [1876] BP Exploration (Libya) Ltd v Hunt [1983] Bratty v … Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134; [2004] 3 WLR 927; [2004] 4 All ER 587 HL. Before confirming, please ensure that you have thoroughly read and verified the judgment. Accordingly, I agree that this appeal must be dismissed. LORD NOLAN My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. (Emphasis added.) In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. The passages from his judgment which I have quoted (and in particular those that I have underlined) demonstrate this. 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. If you have the appropriate software installed, you can download article citation data to the citation manager … discover english bolitho pdf J.bolithounsw.edu.au. Nor can I see any circumstances in which the Bolam test could be relevant to such a question. On 11 January 1984 Patrick was admitted to St. Bartholomew's suffering from croup and was treated under the care of the senior paediatric registrar, Dr. Janet Horn, and the senior house officer in paediatrics, Dr. Keri Rodger. Of these five, the judge was most impressed by Dr. Heaf, a consultant paediatrician in respiratory medicine at the Royal Liverpool Children's Hospital, which is the largest children's hospital in the United Kingdom. Five of them were called on behalf of Patrick and were all of the view that, at least after the second episode, any competent doctor would have intubated. She took this course because she felt something was acutely wrong. L.R. Practices may develop in professions, particularly as to, disclosure, not because they serve the interests of the clients, but because they protect, the interests or convenience of members of the profession. The The judge accepted this evidence. I have no doubt that, in the generality of cases, the proposition of law is correct but equally have no doubt that the judge in the circumstances of the present case was not guilty of any self-misdirection. See also Bolam principle. change. As to the first of those issues, Dr. Horn's evidence was that, had she come to see Patrick at 2 p.m., she would not have arranged for him to be intubated. Hong Kong Med J. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. The views of the plaintiff's experts were largely based on the premise that over the last two hours before the catastrophe Patrick was in a state of respiratory distress progressing inexorably to hypoxia and respiratory failure. (1980) 2 NSWLR 542 where a patient in Royal Prince, Alfred Hospital who had been born with a spinal problem had her spinal cord totally, severed leaving her a paraplegic. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. Add to My Bookmarks Export citation. On the other side, the defendants called three experts all of whom said that, on the symptoms presented by Patrick as recounted by Sister Sallabank and Nurse Newbold, intubation would not have been appropriate. (APPELLANT) v. CITY AND HACKNEY HEALTH AUTHORITY (RESPONDENTS) ON 13 NOVEMBER 1997. A young child does not tolerate a tube easily "at any rate for a day or two" and the child unless sedated tends to remove it. . Given the recent and the more remote history of Patrick's illness, culminating in these two episodes, surely it was unreasonable and illogical not to anticipate the recurrence of a life- threatening event and take the step which it was acknowledged would probably have saved Patrick from harm? This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. She requested a nurse to stay with Patrick. in the Court of Appeal is based on a misreading of the judge's judgment. After the second episode, Sister Sallabank instructed Nurse Newbold to sit with Patrick: she was told that the doctors were coming to see him because he had been unwell earlier. Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 House of Lords A 2 year old child was admitted to hospital suffering from breathing difficulties. This practice opened the gateway through which a dishonest solicitor for the borrower absconded with the loan money without providing the security documents for such loan. Dr. Dinwiddie's view was that these symptoms did not show a progressive respiratory collapse and that there was only a small risk of total respiratory failure. As it seems to me, if Dr. Horn would have intubated, then the plaintiff succeeds, whether or not that is a course which all reasonably competent practitioners would have followed. "Bolitho v. City and Hackney Health Authority" [1997] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. He had not slept well and had been restless; further he seemed to be having increasing difficulty in breathing and was wheezier. what would have happened? Patrick had collapsed because his respiratory system was entirely blocked and he was unable to breathe. . Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. I turn to consider whether this is one of those rare cases. There was a conflict of evidence between Sister Sallabank and Dr. Horn as to what was said to Dr. Horn in the course of the two telephone calls at about 12.40 and 2 p.m. In my judgment it was for the judge to assess the truth of her evidence on this issue. . He refused to "substitute his own views for those of the medical experts." The issues investigated at trial were wide ranging but as a result of the judge's findings I can state the relevant facts quite shortly. Please log in or sign up for a free trial to access this feature. Tragic though this case is for Patrick's mother and much as everyone must sympathise with her, I consider that the judge and the Court of Appeal reached the right conclusions on the evidence in this case. It was this test which Lord Scarman was repeating, in different words, in Maynard's case in the passage by reference to which the judge directed himself. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. But 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. City and Hackney Health Authority continued (back to preceding text) Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; Wilsher v. In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. Get 1 point on adding a valid citation to this judgment. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. In the event, neither she nor Dr. Rodger came to see Patrick. contains alphabet), Bolitho v. City and Hackney Health Authority. The child’s mother sued for … If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20: "Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. 1. LORD HOFFMANN My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. Dr. Rodger examined him and was also concerned about his condition. Bolitho v City and Hackney Health Authority1 IN recent years, considerable criticism has been levelled at the test for determining the standard of care in negligence with respect to persons within the medical profession. L.R. However, he found that she would have made preparation to ensure that speedy intubation could take place: in the event that proved to be an irrelevant finding since the judge found that such preparations would have made no difference to the outcome. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. The defendants' experts, on the other hand, considered the facts as recounted by Sister Sallabank indicated that Patrick was quite well apart from the two quite sudden acute episodes at 12.40 p.m. and 2 p.m. The sister was sufficiently concerned about his condition to bleep Dr. Horn rather than to go through the usual chain of command by first contacting the senior house officer, Dr. Rodger. 634, 639: ". Get 2 points on providing a valid reason for the above Bolitho v City and Hackney Health Authority [1997] UKHL 46. In those circumstances it cannot 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. There are decisions which demonstrate that the judge is entitled to approach expert professional opinion on this basis. Bolitho v City and Hackney Health Authority [1997] 4 All ER 771: A two-year old boy suffered brain damage as a result of the bronchial air passages becoming blocked leading to cardiac arrest. Therefore, he held, Dr. Horn, if she had attended and not intubated, would have come up to a proper level of skill and competence, i.e. TORT – NEGLIGENCE – STANDARD OF CARE FOR MEDICAL PROFESSIONALS – CAUSATION. Get 1 point on providing a valid sentiment to this in the 1997 case of Bolitho v City and Hackney Health Authority 1997 3 WLR. As I have said, the judge took a very favourable view of Dr. Dinwiddie as an expert. 2002 Jun;8(3):222-3. Dr. Horn said that she would attend as soon as possible. He submitted that the judge had wrongly treated the Bolam test as requiring him to accept the views of one truthful body of expert professional advice even though he was unpersuaded of its logical force. A legal judgement (Bolitho v. City and Hackney Health Authority 1997) that stated that a case cannot be defended on the basis of a current practice that is not reasonable or logical. There was evidence, that he would not have intubated whereas five other experts, be a logical basis for the opinion not to intubate. Bolitho v City and Hackney Health Authority [1998] 2 AC 232. From Bolam to Bolitho: unravelling medical protectionism Christopher Stone January 2011 Introduction In 1990/91 the cost of clinical negligence claims to the NHS was estimated at around £52 million1.Twenty years later, by 2009/10, the NHS Litigation Authority (NHSLA) Buchanan, Alec. I would dismiss the appeal. Therefore the Bolam test had no part to play in determining the first question, viz. The question is what would have happened if an event which by definition did not occur had occurred. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view." Like the Court of Appeal, in my judgment it plainly is not. . Sister Sallabank described his respiratory sounds as "awful" but reported that surprisingly he was still talking. In the event, neither she nor Dr. Rodger came to see Patrick. Nurse Newbold immediately returned to Patrick. The use of these adjectives -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. Common law authority in respect of not implementing a particular medical intervention is to be found in the House of Lords judgment in Bolitho v City and Hackney Health Authority 5. For the reasons which he has given, I, too, would dismiss this appeal. Case analysis: Bolitho versus City and Hackney Health Authority. . The case came on for trial before Hutchinson J. The Bolam test has no relevance to the first of those questions but is central to the second. Even if this is to put too favourable a meaning on the judge's judgment, when the evidence is looked at it is plainly not a case in which Dr. Dinwiddie's views can be dismissed as illogical. He has subsequently died and these proceedings have been continued by his mother as administratrix of his estate. The judge held that the views of Dr. Heaf and Dr. Dinwiddie, though diametrically opposed, both represented a responsible body of professional opinion espoused by distinguished and truthful experts. In all cases the primary question is one of fact: did the wrongful act cause the injury? LORD CLYDE My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Of the defendants' experts, the judge found Dr. Dinwiddie, a consultant paediatrician in respiratory diseases at the Great Ormond Street Hospital, most impressive. The judge accepted Sister Sallabank's version (which is the one I have summarised above). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. The doctor summoned to deal with the matter never received the summons due to a low battery on her bleep. [1997] UKHL 46 Expert witness In this medical negligence case, the House of Lords considered how expert evidence as to a body of professional opinion in a professional negligence case should be dealt with. The judge identified the questions he had to answer as follows: "[Mr. Owen, for the defendants] submitted therefore that (if once it was held that Dr. Horn was negligent in failing to attend at either 12.40 p.m. or 2 p.m) the sole issue was whether Patrick would on one or other of these occasions have been intubated. Format: pdf… He was seen on the morning round by the consultant who carried out an examination (albeit not a full one) but he was not concerned about his condition. in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. Nurse Newbold tried to take Patrick's pulse and rate of respiration but this proved very difficult as he appeared quite well and was jumping about and playing in his cot. At about 2.30 p.m. the events leading to the final catastrophe began. As to the second of the judge's questions (i.e. I have no doubt that this concession was rightly made by the defendants. and was the basis on which he dissented. whether any competent doctor should have intubated if he had attended Patrick at any time after 2 p.m.), the judge had evidence from no less than eight medical experts, all of them distinguished. Example: Adekanmbi (deceased) v Allinson (2004). Contains public sector information licensed under the Open Government Licence v3.0. Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. A child was brought to a hospital suffering from breathing abnormalities. 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