The courts apply what is known as the 'Bolam' test in deciding whether a doctor has been negligent, as modified in Bolitho v City and Hackney Health Authority. 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. The case came on for trial before Hutchinson J. Dr. Rodger examined him and was also concerned about his condition. This preview shows page 5 - 7 out of 7 pages. Intended for healthcare professionals. 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. 2002 Jun;8(3):222-3. 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. At about 2.30 p.m. the events leading to the final catastrophe began. 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. discover english bolitho pdf J.bolithounsw.edu.au. 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. Get 2 points on providing a valid reason for the above 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. That is a question for the, court and the duty of deciding it cannot be delegated to any profession or group in the, Where it can be shown that the decision-maker was not merely negligent, but acted with, "malice", the tort of "misfeasance in public office" may give rise to a remedy. 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. He had not slept well and had been restless; further he seemed to be having increasing difficulty in breathing and was wheezier. 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. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 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. and (2) If she would not have intubated, would that have been negligent? 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. Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. Sister Sallabank asked Dr. Horn to come and see Patrick straight away as he was having difficulty in breathing and was very white. Citation Tools. The nurse who was observing Patrick summoned Sister Sallabank, a skilled and experienced nurse. She requested a nurse to stay with Patrick. in the Court of Appeal is based on a misreading of the judge's judgment. The nurse observing Patrick called Sister Sallabank back to Patrick. 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. The doctor summoned to deal with the matter never received the summons due to a low … (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. 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. (Emphasis added.) the standard represented by Dr. Dinwiddie's views. This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery. 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. Why Bolitho v City and Hackney Health Authority is important. 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. He also said, "The more recent approach is to replace the law, not legal, practitioners, as the means of defining negligence", a policy in law later more strongly, (1983) 33 SASR 189 Where Chief Justice King said, "In many cases an, approved professional practice as to disclosure will be decisive. Get 1 point on providing a valid sentiment to this 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. 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. Patrick suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. But professions may, adopt unreasonable practices. The case of Bolitho v City and Hackney Health Authority dates back to 1997 and concerned the treatment of a sick child in hospital. TORT – NEGLIGENCE – STANDARD OF CARE FOR MEDICAL PROFESSIONALS – CAUSATION. 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) 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. The difficulty of this approach, as in the end I think Mr. Brennan acknowledged, was that in effect it invited me to substitute my own views for those of the medical experts." 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. Dr. Horn informed Sister Sallabank over the telephone that she was on afternoon clinic and had asked Dr. Rodger to come in her place. Format: pdf… 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." For the reasons which he has given, I, too, would dismiss this appeal. Sachs L.J. 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. Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of … . 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. 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? Download PDF Article Metrics; Related Articles; Comments; Cite. 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. in the 1997 case of Bolitho v City and Hackney Health Authority 1997 3 WLR. . If you have the appropriate software installed, you can download article citation data to the citation manager … Sister Sallabank also heard the buzzer and sent out a call for the cardiac arrest team. Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. An example. In relation to decision-making on behalf … It was agreed that the only course of action to prevent the damage was to have the boy intubated. Click here to remove this judgment from your profile. (Emphasis added.) See also Bolam principle. At around 12.40 p.m. on 17 January there occurred the first episode. There was evidence, that he would not have intubated whereas five other experts, be a logical basis for the opinion not to intubate. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible. 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. A practice as to disclosure approved and adopted, by a profession or section of it may be in many cases the determining consideration as, to what is reasonable. 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. . change. This means that a, judge will be entitled to choose between two bodies of expert opinion and to reject an, opinion which is 'logically indefensible'. He was entitled on all the evidence to accept that of Dr. Dinwiddie. 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. When Sister Sallabank returned to Patrick she was extremely surprised to see him walking about again with a decidedly pink colour. 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 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. 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. 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. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157. Search Browse; Resources Whilst a layman may conclude that the doctors acted negligently, a Court is unable to ignore evidence from a professional that is capable of standing up to … 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. Chappel v Hart … For example, in Hucks v. Cole (a case from 1968 reported in [1993] 4 Med. In such a case the practice will no doubt thereafter be altered to the benefit of patients. The the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. Jones RD. She went off to telephone Dr. Horn again. The appeal of the argument was to the judge "as a layman" not a conclusion he had reached on all the medical evidence. In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. 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. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. In the case of Bolitho v City and Hackney Health Authority, the House of Lords has decided on the test to be applied in cases of what I would call "secondary negligence". 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. 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 . It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation.. Facts (RESPONDENTS) ON 13 NOVEMBER 1997 LORD BROWNE-WILKINSON My Lords, This appeal raises two questions relating to liability for medical negligence. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." 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. 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. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas." 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. As I have said, the judge took a very favourable view of Dr. Dinwiddie as an expert. where the Court sets the law not the profession. . The Court of Appeal found the defendant to have been negligent. Patrick ate a large lunch. 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. As a result he was re-admitted to St. Bartholomew's on the evening of 16 January. LORD BROWNE-WILKINSON. The judge accepted this evidence. In all cases the primary question is one of fact: did the wrongful act cause the injury? 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. . There was a change in Patrick's condition. No complaint is made about this episode in his treatment. Contains public sector information licensed under the Open Government Licence v3.0. L.R. Case analysis: Bolitho versus City and Hackney Health Authority. Nurse Newbold immediately returned to Patrick. In my judgment it was for the judge to assess the truth of her evidence on this issue. Again, in Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master [1984] 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. 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. The fact of the case: In Bolitho v City & Hackney Health Authority … contains alphabet), Bolitho v. City and Hackney Health Authority. 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. [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. Bolitho v City and Hackney Health Authority [1997] UKHL 46. 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). (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. BOLITHO (ADMINISTRATRIX OF THE ESTATE OF PATRICK NIGEL BOLITHO) (DECEASED) (A.P.) Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134; [2004] 3 WLR 927; [2004] 4 All ER 587 HL. 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 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. 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. It was agreed that the only course of action to prevent the, . 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