Tort Law

Bolitho v. City and Hackney Health Authority

[1998] AC 232

Facts

• Patrick Bolitho was a two-year-old child admitted to St Bartholomew’s Hospital with croup.
• He experienced episodes of serious breathing difficulty.
• A nurse called the responsible paediatric registrar, Dr Horn, to attend him.
• Dr Horn did not come to examine Patrick.
• Patrick later suffered respiratory failure.
• The respiratory failure caused cardiac arrest and catastrophic brain damage.
• It was accepted that Dr Horn’s failure to attend was a breach of duty.
• The causation issue depended upon what would probably have happened had she attended.
• Dr Horn stated that even if she had examined Patrick, she would not have intubated him.
• Several medical experts considered that intubation was necessary.
• A smaller responsible group supported the view that a competent doctor might reasonably have decided against intubation because of the risks and clinical circumstances.
• The trial court accepted the non-intubation opinion and dismissed the claim.
• The case eventually reached the House of Lords.

• Whether the existence of a body of professional opinion automatically prevents a finding of negligence.
• Whether courts may examine the logic and reasonableness of expert medical opinion.
• Whether Dr Horn’s failure to attend caused Patrick’s injury.
• Whether a doctor may avoid causation by showing that she would have adopted another allegedly non-negligent course.

• Bolam remains relevant to professional clinical judgment.
• However, courts are not bound to accept a professional opinion merely because some experts support it.
• The body of opinion must have a logical and defensible basis.
• The court may reject professional evidence where the experts cannot demonstrate that they:
o considered the comparative risks and benefits;
o directed their minds to the relevant danger;
o reached a rational conclusion; or
o could logically defend the proposed practice.
• Only in relatively rare cases will a court reject a responsible body of professional opinion.
• Where the breach is a failure to attend, causation requires consideration of what reasonable examination and treatment would probably have produced.

• Dr Horn was negligent in failing to attend Patrick.
• However, that omission caused the brain injury only if attendance would probably have resulted in intubation and prevented respiratory failure.
• The hospital relied upon expert testimony supporting non-intubation.
• The House of Lords did not treat the experts’ status as conclusive.
• It examined their reasoning.
• The experts explained that:
o Patrick’s earlier breathing episodes had resolved;
o intubation was invasive;
o the procedure carried risks; and
o non-intubation could be a defensible clinical decision.
• Their opinion was therefore based upon a considered comparison of risks rather than unsupported custom.
• The court found it logically defensible.
• Accordingly, even if Dr Horn had attended, she might reasonably have chosen not to intubate.
• The claimant could not prove that the admitted failure to attend caused the eventual brain injury.
• The judgment nevertheless imposed an important limit upon Bolam: professional opinion must remain subject to judicial evaluation.

• The House of Lords dismissed the appeal.
• Dr Horn’s failure to attend was negligent, but causation was not established.
• A responsible and logically defensible body of medical opinion supported non-intubation.
• Patrick would therefore probably not have been intubated even if Dr Horn had attended.