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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Bolitho v. City and Hackney Health Authority  UKHL 46;  AC 232;  4 All ER 771;  3 WLR 1151 (13th November, 1997)
Cite as:  3 WLR 1151,  AC 232,  UKHL 46,  4 All ER 771
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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  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
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 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
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
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  1 W.L.R. 634, 639:
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  1 Med. L.R. 381. I will have to consider some of their
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  1 W.L.R. 583, 587:
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
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.
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  AC 613; Wilsher v. Essex Area Health Authority
 AC 1074. In all cases the primary question is one of fact: did the
wrongful act cause the injury? But in cases where the breach of duty consists of
an omission to do an act which ought to be done (e.g. the failure by a doctor to
attend) that factual inquiry is, by definition, in the realms of hypothesis. The
question is what would have happened if an event which by definition did not
occur had occurred. 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. But in this case there was no doubt: if the duty had been
carried out it would have either been Dr. Horn or Dr. Rodger, the only two
doctors at St. Bartholomew's who had responsibility for Patrick and were on
duty. Therefore in the present case, the first relevant question is "what would
Dr. Horn or Dr. Rodger have done if they had attended?" As to Dr. Horn, the
judge accepted her evidence that she would not have intubated. By inference,
although not expressly, the judge must have accepted that Dr. Rodger also would
not have intubated: as a senior house officer she would not have intubated
without the approval of her senior registrar, Dr. Horn.
Therefore the Bolam test had no part to play
in determining the first question, viz. what would have happened? Nor can I see
any circumstances in which the Bolam test could be relevant to such a
However in the present case the answer to the
question "what would have happened?" is not determinative of the issue of
causation. At the trial the defendants accepted that if the professional
standard of care required any doctor who attended to intubate Patrick, Patrick's
claim must succeed. Dr. Horn could not escape liability by proving that she
would have failed to take the course which any competent doctor would have
adopted. 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. I have no doubt that this concession was rightly made by the
defendants. But there is some difficulty in analysing why it was correct. I
adopt the analysis of Hobhouse L.J. in Joyce v. Merton, Sutton and Wandsworth
Health Authority  7 Med. L.R. 1. In commenting on the decision of the
Court of Appeal in the present case, he said, at p. 20:
There were, therefore, two questions for the judge to
decide on causation: (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.
There can be no doubt that, as the majority of the
Court of Appeal held, the judge directed himself correctly in accordance with
that approach. The passages from his judgment which I have quoted (and in
particular those that I have underlined) demonstrate this. The dissenting
judgment of Simon Brown L.J. in the Court of Appeal is based on a misreading of
the judge's judgment. He treats the judge as having only asked himself one
question, namely, the second question. 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 my judgment it was for the judge to assess the truth of her evidence on this
Accordingly the judge asked himself the right
questions and answered them on the right basis.
The Bolam test--should the judge have accepted Dr. Dinwiddie's
As I have said, the judge took a very favourable view
of Dr. Dinwiddie as an expert. He said:
However, the judge also expressed these doubts:
Mr. Brennan renewed that submission both before the
Court of Appeal (who unanimously rejected it) and before your Lordships. 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. 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.
My Lords, I agree with these submissions to the
extent that, 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 accorded with sound medical practice. In the
Bolam case itself, McNair J. stated  1 W.L.R. 583, 587, that the
defendant had to have acted in accordance with the practice accepted as proper
by a "responsible body of medical men." Later, at p. 588, he referred to
"a standard of practice recognised as proper by a competent reasonable
body of opinion." Again, in the passage which I have cited from Maynard's
case, Lord Scarman refers to a "respectable" body of professional opinion. 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. 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.
There are decisions which demonstrate that the judge
is entitled to approach expert professional opinion on this basis. For example,
in Hucks v. Cole (a case from 1968 reported in  4 Med. L.R. 393), a
doctor failed to treat with penicillin a patient who was suffering from septic
places on her skin though he knew them to contain organisms capable of leading
to puerperal fever. A number of distinguished doctors gave evidence that they
would not, in the circumstances, have treated with penicillin. The Court of
Appeal found the defendant to have been negligent. Sachs L.J. said, at p.
Again, in Edward Wong Finance Co. Ltd. v. Johnson
Stokes & Master  1 A.C. 296, the defendant's solicitors had
conducted the completion of a mortgage transaction in "Hong Kong style" rather
than in the old fashioned English style. Completion in Hong Kong style provides
for money to be paid over against an undertaking by the solicitors for the
borrowers subsequently to hand over the executed documents. 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. The Privy
Council held that even though completion in Hong Kong style was almost
universally adopted in Hong Kong and was therefore in accordance with a body of
professional opinion there, the defendant's solicitors were liable for
negligence because there was an obvious risk which could have been guarded
against. Thus, the body of professional opinion, though almost universally held,
was not reasonable or responsible.
These decisions demonstrate that in cases of
diagnosis and treatment there are cases where, despite a body of professional
opinion sanctioning the defendant's conduct, the defendant can properly be held
liable for negligence (I am not here considering questions of disclosure of
risk). 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. 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. In particular, where there are questions of
assessment of the relative risks and benefits of adopting a particular medical
practice, a reasonable view necessarily presupposes that the relative risks and
benefits have been weighed by the experts in forming their opinions. 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.
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. 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. 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. It is only where a judge can be satisfied that the body of
expert opinion cannot be logically supported at all that such opinion will not
provide the bench mark by reference to which the defendant's conduct falls to be
I turn to consider whether this is one of those rare
cases. Like the Court of Appeal, in my judgment it plainly is not. 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. As I read
his judgment, he was quoting counsel's submission when he described the view
that intubation was not the right course as being "unreasonable and illogical."
The appeal of the argument was to the judge "as a layman" not a conclusion he
had reached on all the medical evidence. He refused to "substitute his own views
for those of the medical experts." 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.
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. According to the
accounts of Sister Sallabank and Nurse Newbold, although Patrick had had two
severe respiratory crises, he had recovered quickly from both and for the rest
presented as a child who was active and running about. 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. Intubation is not a
routine, risk-free process. Dr. Roberton described it as "a major
undertaking--an invasive procedure with mortality and morbidity attached--it was
an assault." It involves anaesthetising and ventilating the child. 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. 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.
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. I would dismiss the appeal.
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. I agree with his analysis of the questions which have to be decided in cases of this kind and of the correct approach in law in deciding them. 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. He was entitled on all the evidence to accept that of Dr. Dinwiddie. Accordingly, I agree that this appeal must be dismissed.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons which he has given, I, too, would dismiss this appeal.