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House of Lords
Session 1997-98
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Judgments - Bolitho v. City and Hackney Health Authority


  Lord Browne-Wilkinson Lord Slynn of Hadley   Lord Nolan
  Lord Hoffmann   Lord Clyde






My Lords,

    This appeal raises two questions relating to liability for medical negligence. The first, which I believe to be more apparent than real, relates to the proof of causation when the negligent act is one of omission. The second concerns the approach to professional negligence laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583.

    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. Patrick suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. 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.

    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. On 15 January he was discharged home. No complaint is made about this episode in his treatment.

    On the evening of 16 January his parents became concerned about his condition. He had not slept well and had been restless; further he seemed to be having increasing difficulty in breathing and was wheezier. As a result he was re-admitted to St. Bartholomew's on the evening of 16 January. Dr. Rodger examined him and was also concerned about his condition. At 8.30 p.m. she arranged for him to be nursed by a special nurse on a one-to-one basis. On the following morning, 17 January, the medical notes indicated that he was much better but that there was still reduced air entry on the left side. 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. Patrick ate a large lunch.

    At around 12.40 p.m. on 17 January there occurred the first episode. The nurse who was observing Patrick summoned Sister Sallabank, a skilled and experienced nurse. Sister Sallabank described his respiratory sounds as "awful" but reported that surprisingly he was still talking. He was very white in colour. 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. She took this course because she felt something was acutely wrong. Sister Sallabank asked Dr. Horn to come and see Patrick straight away as he was having difficulty in breathing and was very white. Dr. Horn seemed alarmed that Patrick was in such distress when he had appeared perfectly well a short time before during the consultant's round. 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. Dr. Horn said that she would attend as soon as possible. In the event, neither she nor Dr. Rodger came to see Patrick. When Sister Sallabank returned to Patrick she was extremely surprised to see him walking about again with a decidedly pink colour. She requested a nurse to stay with Patrick.

    At around 2 p.m. the second episode occurred. The nurse observing Patrick called Sister Sallabank back to Patrick. Sister Sallabank saw that he was in the same difficulties as he had been in at 12.40 p.m. and she became very worried. She went off to telephone Dr. Horn again. Dr. Horn informed Sister Sallabank over the telephone that she was on afternoon clinic and had asked Dr. Rodger to come in her place. While the sister was talking to Dr. Horn, the nurse reported to her that Patrick was now pink again; the sister then took the opportunity to explain to Dr. Horn in detail the episodes which Patrick had experienced. Dr. Rodger did not attend Patrick after the second episode. Her evidence was that her bleep was not working because of flat batteries so that she never got the message.

    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. 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. She described Patrick as being very chatty and interested in reading the letters on a dish.

    At about 2.30 p.m. the events leading to the final catastrophe began. There was a change in Patrick's condition. Although he retained his colour he became a little agitated and began to cry. Nurse Newbold left a colleague with Patrick and reported to Sister Sallabank who told her to bleep the doctors again. While she was on the telephone to the doctors, the emergency buzzer sounded having been set off by the nurse left with Patrick. Nurse Newbold immediately returned to Patrick. Sister Sallabank also heard the buzzer and sent out a call for the cardiac arrest team. Patrick had collapsed because his respiratory system was entirely blocked and he was unable to breathe. As a result he suffered a cardiac arrest. He was revived but there was a period of some nine to ten minutes before the restoration of respiratory and cardiac functions. In consequence, Patrick sustained severe brain damage. He has subsequently died and these proceedings have been continued by his mother as administratrix of his estate.

    The case came on for trial before Hutchinson J. 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. The judge accepted Sister Sallabank's version (which is the one I have summarised above). 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.

    Negligence having been established, the question of causation had to be decided: would the cardiac arrest have been avoided if Dr. Horn or some other suitable deputy had attended as they should have done. By the end of the trial it was common ground, first, that intubation so as to provide an air way in any event would have ensured that the respiratory failure which occurred did not lead to cardiac arrest and, second, that such intubation would have had to be carried out, if at all, before the final catastrophic episode.

    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. In submitting that on this aspect of the case the issue was what would Dr. Horn or another competent doctor sent in her place have done had they attended, Mr. Owen was, I think, accepting that the real question was what would Dr. Horn or that other doctor have done, or what should they have done. 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. If, however, Dr. Horn would not have intubated, then the plaintiff can only succeed if such failure was contrary to accepted medical practice (I am not purporting to consider the legal tests in detail, and merely using shorthand at this stage). . . . 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." (Emphasis added.)

    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. The judge accepted this evidence. 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. Therefore, the judge answered the first of his two questions by holding that Dr. Horn would not herself have intubated if, contrary to the facts, she had attended.

    As to the second of the judge's questions (i.e. 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. 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. 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. 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. Of the defendants' experts, the judge found Dr. Dinwiddie, a consultant paediatrician in respiratory diseases at the Great Ormond Street Hospital, most impressive.

    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. 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 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.

    Having made his findings of fact, the judge directed himself as to the law by reference to the speech of Lord Scarman in Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634, 639:

     ". . . 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. 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. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary." (Emphasis added.)

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. 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. the standard represented by Dr. Dinwiddie's views. Accordingly he held that it had not been proved that the admitted breach of duty by the defendants had caused the catastrophe which occurred to Patrick.

    An appeal to the Court of Appeal was dismissed by Dillon and Farquharson L.JJ., Simon Brown L.J. dissenting. Their decision is reported only in [1994] 1 Med. L.R. 381. I will have to consider some of their reasons hereafter.

The Bolam test and causation

    The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury given by McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583, 587:

     "I myself would prefer to put it this way, that 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 . . . 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."

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.

    Before your Lordships, Mr. Brennan, for the appellant, submitted, first, that the Bolam test has no application in deciding questions of causation and, secondly, that the judge misdirected himself by treating it as being so relevant. This argument, which was raised for the first time by amendment to the notice of appeal in the Court of Appeal, commended itself to Simon Brown L.J. and was the basis on which he dissented. 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.