House of Lords - Bolitho v. City and Hackney Health Authority PDF

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House of Lords - Bolitho v. City and Hackney Health Authority

https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli01.h

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Judgments - Bolitho v. City and Hackney Health Authority HOUSE OF LORDS Lord Browne-Wilkinson Lord Slynn of Hadley Lord Nolan Lord Hoffmann Lord Clyde OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE BOLITHO (ADMINISTRATRIX OF THE ESTATE OF PATRICK NIGEL BOLITHO) (DECEASED) (A.P.) (APPELLANT) v.

House of Lords - Bolitho v. City and Hackney Health Authority

https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli01.h

CITY AND HACKNEY HEALTH AUTHORITY (RESPONDENTS) ON 13 NOVEMBER 1997

LORD BROWNE-WILKINSON

My Lords, This appeal rais es two ques tions relating to liability for medic al negligence. The firs t, w hich I believe to be more apparent than real, relates to the proof of c ausation w hen t he negligent act is one of omiss ion. The s econd c oncerns the approach t o profes sional 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 w hen he was tw o years old. Patrick suffered c atas trophic brain damage as a res ult of c ardiac arres t induced by respirat ory failure. The iss ues investigated at trial were wide ranging but as a res ult of the judge's findings I can state the relevant fact s quite shortly. O n 11 January 1984 Patric k w as admitted to St. Bart holomew 's suffering from croup and was treated under the c are of t he senior paediatric regist rar, Dr. Janet Horn, and t he s enior house offic er in paediatric s, Dr. Keri Rodger. On 15 January he was disc harged home. No c omplaint is made about this episode in his treatment. O n t he evening of 16 January his parents became concerned about his condition. He had not slept well and had been restles s; further he seemed t o be having increasing difficulty in breathing and w as wheezier. As a res ult he was re-admitt ed to St. Bartholomew 's on the evening of 16 January. Dr. Rodger examined him and was also concerned about his c ondition. At 8.30 p. m. she arranged for him to be nurs ed by a special nurs e on a one-to-one basis . On t he follow ing morning, 17 January, the medical notes indicated that he w as much better but that there was s till reduced air entry on the left side. He was s een on the morning round by the consultant who carried out an examination (albeit not a full one) but he w as not concerned about his c ondition. Patric k ate a large lunch. At around 12. 40 p.m. on 17 January there occ urred the firs t episode. The nurs e w ho was observing Patric k s ummoned Sister Sallabank, a skilled and experienced nurse. Sis ter Sallabank desc ribed his respiratory sounds as "awful" but reported that surpris ingly he w as still talking. He w as very white in c olour. The s is ter was suffic iently concerned about his c ondition t o bleep Dr. Horn rat her than t o go through the usual chain of command by firs t contac ting the senior house officer, Dr. Rodger. She t ook t his course because she felt something w as acutely wrong. Sis ter Sallabank as ked Dr. Horn to come and see Patric k s traight away as he w as having difficulty in breathing and was very white. Dr. Horn s eemed alarmed that Patrick was in such dist ress w hen he had appeared perfectly well a s hort time before during the c onsultant's round. Sister Sallabank t old Dr. Horn that there had been a notable change in Patric k's colour and t hat he s ounded as though s omet hing w as st uck in his throat. Dr. Horn s aid that she would att end as soon as poss ible. In the event, neither s he nor Dr. Rodger came to see Patric k. When Sis ter Sallabank returned to Patric k s he w as extremely s urpris ed t o see him walking about again wit h a decidedly pink colour. She requested a nurs e to stay with Patrick. At around 2 p.m. the s econd episode oc curred. The nurs e observing Patric k c alled Sist er Sallabank back to Patric k. Sis ter Sallabank s aw that he w as in t he same difficulties as he had been in at 12.40 p.m. and she became very w orried. She went off to telephone Dr. Horn again. Dr. Horn informed Sist er Sallabank over the telephone t hat she w as on afternoon c linic and had asked Dr. Rodger to come in her plac e. While the s ist er w as talking to Dr. Horn, the nurse reported to her that Patric k w as now pink again; the sis ter then took the opportunity to explain t o Dr. Horn in detail the epis odes which Patric k had experienced. Dr. Rodger did not attend Patrick after the second epis ode. Her evidence was that her bleep w as not working because of flat batt eries so that she never got the mess age. After the second epis ode, Sis ter Sallabank instructed Nurse Newbold to sit with Patrick: she was told that the doctors w ere coming to see him because he had been unwell earlier. Nurs e Newbold t ried t o take Patric k's pulse and rate of res piration but this proved very diffic ult as he appeared quite well and was jumping about and playing in his c ot. She desc ribed Patric k as being very chatty and interes ted in reading the lett ers on a dish. At about 2.30 p.m. the event s leading to the final catas trophe began. There was a change in Patrick's c ondition. Although he ret ained his colour he became a litt le agitated and began to cry. Nurse Newbold left a colleague w ith Patrick and reported t o Sis ter Sallabank w ho told her to bleep the doctors again. While she w as on the telephone to the doctors , the emergency buzz er sounded having been s et off by t he nurse left with Patric k. Nurs e New bold immediately returned to Patric k. Sist er Sallabank als o heard the buzz er and sent out a c all for the cardiac arrest team. Patrick had c ollapsed because his respiratory syst em was ent irely blocked and he was unable to breathe. As a result he suffered a cardiac arres t. He was revived but there was a period of s ome nine to ten minutes before the res toration of respiratory and c ardiac functions. In c onsequence, Patric k sust ained s evere brain damage. He has subsequent ly died and t hes e proceedings have been continued by his mother as administratrix of his est ate. The case came on for trial before Hutc hinson J. There was a conflic t of evidenc e betw een Sis ter Sallabank and Dr. Horn as to what was said to Dr. Horn in the c ourse of the t wo telephone c alls at about 12.40 and 2 p.m. The judge ac cepted Sis ter Sallabank's vers ion (whic h is the one I have summaris ed above). On that basis , the defendants acc epted that Dr. Horn w as in breach of her duty of c are after receiving s uch telephone c alls not to have attended Patrick or arranged for a s uitable deputy to do so. Negligence having been es tablished, the quest ion of c ausation had to be decided: would the cardiac arres t have been avoided if Dr. Horn or some other s uitable deputy had att ended as they s hould have done. By the end of the trial it was c ommon ground, firs t, that intubation s o as to provide an air way in any event would have ensured that the res pirat ory failure which occ urred did not lead to cardiac arres t and, second, that such intubation w ould have had to be c arried out, if at all, before t he final catas trophic epis ode. The judge ident ified the quest ions he had t o ans wer as follow s:

"[Mr. Ow en, 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

House of Lords - Bolitho v. City and Hackney Health Authority

https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli01.h

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 firs t of those iss ues, Dr. Horn's evidence was that, had she come to see Patric k at 2 p.m., s he w ould not have arranged for him to be intubated. The judge ac cepted t his evidence. How ever, he found that she would have made preparation to ensure t hat s peedy intubation could take place: in the event that proved t o be an irrelevant finding since the judge found t hat s uch preparations would have made no difference to the outc ome. Therefore, the judge answered the firs t of his tw o questions by holding t hat Dr. Horn w ould not herself have intubated if, contrary to the fact s, s he had att ended. As to the s econd of t he judge's quest ions (i. e. w hether any competent doctor should have intubated if he had att ended Patric k at any time after 2 p.m.), t he judge had evidence from no less than eight medic al experts , all of them dis tinguished. Five of them were called on behalf of Patric k and were all of the view that, at least after the s econd episode, any competent doctor would have intubated. O f these five, the judge was most impress ed by Dr. Heaf, a consultant paediatric ian in respiratory medicine at the Royal Liverpool Children's Hospital, which is the largest c hildren's hospital in t he United K ingdom. O n t he other s ide, the defendants called three experts all of whom said that, on the symptoms presented by Patric k as recount ed by Sis ter Sallabank and Nurs e New bold, intubation w ould not have been appropriate. O f the defendant s' experts, the judge found Dr. Dinwiddie, a c onsultant paediatric ian in respiratory diseas es at the Great O rmond Street Hospital, mos t impress ive. The views of the plaintiff's experts w ere largely based on the premis e that over the last tw o hours before the catast rophe Patric k w as in a st ate of respiratory dist ress progres sing inexorably to hypoxia and respiratory failure. The defendants ' experts , on t he other hand, considered the facts as recount ed by Sis ter Sallabank indicated that Patrick was quite well apart from the tw o quite sudden acute episodes at 12. 40 p.m. and 2 p.m. The judge held t hat the evidence of Sist er Sallabank and Nurse Newbold as to Patric k's behaviour (whic h he ac cepted) was inconsis tent with a child pass ing t hrough the s tages of progress ive hypoxia. Having made his findings of fact, the judge direc ted hims elf as t o the law by reference to the speech of Lord Sc arman inMaynard v. Wes t 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 view s of Dr. Heaf and Dr. Dinwiddie, t hough diametric ally opposed, both repres ent ed a res ponsible body of profes sional opinion es poused by dis tinguished and truthful experts . Therefore, he held, Dr. Horn, if s he had att ended and not intubated, would have come up to a proper level of skill and competence, i. e. the s tandard repres ent ed by Dr. Dinwiddie's views . Ac cordingly he held that it had not been proved that the admitted breach of duty by the defendants had caused the c atas trophe whic h oc curred to Patric k. An appeal to the Court of Appeal was dismis sed by Dillon and Farquharson L. JJ. , Simon Brown L. J. diss enting. Their decis ion is reported only in [1994] 1 Med. L. R. 381. I will have to consider some of their reasons hereafter. The Bolam tes t and c ausation The locus class icus of the tes t for the s tandard of c are required of a doct or or any other pers on profes sing s ome skill or competence is the direct ion t o the jury given by M cNair 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

House of Lords - Bolitho v. City and Hackney Health Authority

https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli01.h

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 tes t which Lord Sc arman w as repeating, in different words, in Maynard's case in the pass age by reference to w hic h the judge direct ed hims elf. B efore your Lordships, Mr. Brennan, for the appellant, submitt ed, firs t, that theBolam tes t has no applic ation in deciding questions of causation and, secondly, that the judge mis direc ted hims elf by treating it as being s o relevant. This argument, whic h w as rais ed for the firs t time by amendment to the notic e of appeal in the Court of Appeal, c ommended its elf to Simon Brown L. J. and was the basis on which he diss ented. I have no doubt that, in the generality of cases , the proposition of law is correc t but equally have no doubt that the judge in t he circ ums tances of t he present case was not guilty of any s elf-mis direc tion.

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