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TRUMPING BOLAM: A CRITICAL LEGAL ANALYSIS OF BOLITHO'S “GLOSS”

  • Rachael Mulheron (a1)
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1 Williams & Co. Ltd. v. Michael Hyde & Ass. Ltd. [2000] Lloyd's Rep. P.N. 823, 830, referring to: Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583, 587. The Bolam test now applies to any profession which requires special skill, knowledge or experience: Gold v. Haringey H.A. [1988] Q.B. 481, 489; Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master (a firm) [1984] A.C. 296.

2 Adams v. Rhymney Valley DC [2000] Lloyd's Rep. P.N. 777, at [42] (Sir Christopher Staughton and Morritt L.J., Sedley L.J. dissenting) (re window design and fire escape). Cf.: Buck v. Nottinghamshire Healthcare N.H.S. Trust [2006] EWCA Civ 1576, at [36] (Bolam does not determine question of breach of hospital towards staff).

3 The terminology used, e.g., in: Joyce v. Merton Sutton and Wandsworth H.A. (1995) 27 B.M.L.R. 124, 137; Rampling v. Haringey H.A. (Q.B., 30 July 1996); Birch v University College London Hospital N.H.S. Foundation Trust [2008] EWHC 2237 (Q.B.), at [54].

4 [1998] A.C. 232 (Lord Browne-Wilkinson delivered the judgment of the House, on behalf of Lords Slynn, Nolan, Hoffmann and Clyde, on 13 November 1997).

5 These phrases are to be variously found in the judgment, ibid., at 238, 241 and 243. The phrase, “respectable body of professional opinion”, was also cited by Lord Browne-Wilkinson, at 241, with reference to Lord Scarman's terminology in the earlier decision, Maynard v. West Midlands Regional H.A. [1984] 1 W.L.R. 634, 639.

6 Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253, 87 B.M.L.R. 73, at [11].

7 Heywood, R., “The Logic of Bolitho” (2006) 22 Professional Negligence 225, at 234.

8 In Maynard v. West Midlands Regional H.A., Lord Scarman paraphrased the Bolam test as applying “in the realm of diagnosis and treatment” [1984] 1 W.L.R. 634, 638 (emphasis added); and in Bolitho, Lord Browne-Wilkinson referred to Bolam's test as a question of whether “the defendants' treatment or diagnosis accorded with sound medical practice”: [1998] A.C. 232, 241 (emphasis added), and at 242.

9 For recent discussion of Bolam in failure-to-disclose-inherent-risks litigation, see: Birch v. University College Hosp. N.H.S. Trust [2008] EWHC 2237, 104 B.M.L.R. 16, and earlier: Pearce v. United Bristol Healthcare N.H.S. Trust (1998) 48 B.M.L.R. 118; Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871. For commentary on Birch, see, e.g.: R. Heywood, “Medical Disclosure of Alternative Treatments” [2009] C.L.J. 30.

10 Caparo Industries plc v. Dickman [1990] 2 A.C. 605, 618. See too, Lord Bingham's statement about labels in Commrs of Customs and Excise v. Barclays Bank plc [2006] UKHL 28, [2007] 1 A.C. 181, at [6].

11 Per the authorities cited at note 33 below.

12 English v. Emery Reimbold & Strick Ltd.; D.J. & C. Withers v. Ambic Equipment Ltd.; Verrechia v. Commr of Police of the Metropolis (Practice Note) [2002] EWCA Civ 605, [2002] 1 W.L.R. 2409, and see, too: Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377 (“the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where … there is disputed expert evidence”), cited in Withers, at [6]; St George v. Home Office [2008] EWCA Civ 1068, [2009] 1 W.L.R. 1670. In the medical context, see: Glicksman v. Redbridge Healthcare N.H.S. Trust [2001] EWCA Civ 1097, 63 B.M.L.R. 109, at [10]–[11], for a discussion of the importance of due judicial process, and the safeguards which careful judicial rebuttal of experts' views provide. See too: B. Moxon Browne QC, “Butterfingers and the Bolam Test: Can Bolam Apply to Simple Clumsiness by the Doctor?” [2008] Injury Times (2 Temple Gardens).

13 Albeit that there is no property in a witness, and under the Civil Procedure Rules, r. 35.3(1) and (2), the role of the expert is now “to help the court on the matters within his expertise”, so that this “duty overrides any obligation to the person from whom he has received instructions or by whom he is paid”. See, further, on this point: Royal Brompton Hosp N.H.S. Trust v. Hammond (No 2) [2002] All E.R. (D) 189 (T.C.C.), at [22]; and Moxon Browne QC, ibid.

14 Throughout this article, references to the masculine gender import references to the feminine gender, unless otherwise indicated by the context.

15 Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583, 587 (“Bolam”). The test was derived from McNair J.'s direction to the jury.

16 This point was alluded to, e.g., by Warner J. in Taylor v Warners (Ch.D., 21 July 1987), citing that part of McNair J.'s judgment in Bolam which states: “it is not essential for you to decide which of two practices is the better practice, as long as you accept that what the defendants did was in accordance with a practice accepted by responsible persons; if the result of the evidence is that you are satisfied that his practice is better than the practice spoken of on the other side, then it is really a stronger case”: [1957] 1 W.L.R. 583, 587–588. See too: I. Kennedy and A. Grubb, Medical Law, 3rd ed., (London 2000), p. 427.

17 Foo Fio Na v. Dr. Soo Fook Mun [2007] 1 M.L.J. 593, [2006] M.L.J.U. 518 (Fed. Ct. of App., 29 December 2006), at [26]. This view was also posed by J. Fleming, The Law of Torts, 9th ed., (Sydney 1997), p. 121.

18 Khoo v. Gunapathy d/o Muniandy [2002] 2 S.L.R. 414, at [63].

19 Hajgato v. London Health Assn (1982), 36 O.R. (2d) 669, 693.

20 Burne v. A [2006] EWCA Civ 24, at [10].

21 F v. R [1983] 33 S.A.S.R. 189 (Full Ct.) 191, per King C.J. (this was also a disclosure, not a treatment, case). Also: Scott v. Lothian University Hospitals N.H.S. Trust [2006] Scot. C.S. (O.H.), at [33], [36] (“Professional practice is not conclusive evidence of the prudence of a course of action where that practice, which a profession has adopted as a matter of its own convenience, involves risks that are foreseeable and readily avoided”).

22 See, e.g.: Shakoor v. Situ (2000) 57 B.M.L.R. 178, 184 (using a hypothetical example only of prescribing arsenic). See too: Ipp Committee, Review of the Law of Negligence: Final Report (2002), at [3.10] and [3.24], citing cervical smear results and subsequent cancer treatment in New Zealand: Committee of Enquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women's Hospital and into Other Related Matters (1988).

23 Woolf, Lord, “Are the Courts Excessively Deferential to the Medical Profession?” (2001) 9 Med L. Rev. 1, at 3.

24 Wisniewski v. Central Manchester H.A. [1998] EWCA Civ 596. [no pp]; Kamalam a/p Raman v. Eastern Plantation Agency (Johore) [1996] 4 M.L.J. 674. See too: I. Kennedy and A. Grubb, Medical Law, 3rd ed., (London 2000), p. 425 (Bolam gave “exceptional prominence to expert evidence”); E. Jackson, Medical Law: Text, Cases and Materials 2nd ed., (London 2010), p. 120 (Some post-Bolam cases showed “excessive deference”).

25 [1998] A.C. 232. For a previous similar reasoning, see: Hills v. Potter [1985] 1 All E.R. 643, 728.

26 Ibid., at 243. For academic commentary at the time, either emphasising or debunking the effect that Bolitho would have on the law of professional breach, see, e.g.: Teff, H., “The Standard of Care in Medical Negligence: Moving on from Bolam” (1998) 18 O.J.L.S. 473; Grubb, A., “Negligence: Causation and Bolam” (1998) 6 Med. L. Rev. 378; Brazier, M. and Miola, J., “Bye-Bye Bolam: A Medical Litigation Revolution?” (2000) 8 Med. L. Rev. 85; Keown, J., “Reining in the Bolam Test” (1998) 57 C.L.J. 248; N. Castle, “Applying Bolitho” [1998] J. of Personal Injury Law 278; Jones, M., “The Bolam Test and the Reasonable Expert” (1999) 7 Tort L. Rev. 226; N. Glover, “Bolam in the House of Lords” (1995) 15 Professional Negligence 42.

27 [2005] EWHC 459 (Q.B.), at [9]–[10].

28 Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253, 87 B.M.L.R. 73, at [11].

29 M v. Blackpool Victoria Hospital N.H.S. Trust [2003] EWHC 1744, at [24]; Marriott v. West Midlands Regional H.A. [1999] 1 Lloyd's Rep. Med. 23, 35; Ball v. Wirral H.A. (2003) 73 B.M.L.R. 31, 43.

30 J.D. Williams & Co. Ltd. v. Michael Hyde & Ass. Ltd. [2000] Lloyd's Rep. P.N. 823.

31 e.g.: Bellarby v. Worthing and Southlands Hospitals N.H.S. Trust [2005] EWHC 2089, 86 B.M.L.R. 1, at [112]; Tuke v. Mid Essex Hospital Services N.H.S. Trust (Q.B., 1 May 2003), at [32]; Manning v. King's College Hospital N.H.S. Trust [2008] EWHC 1838 (Q.B.), at [140]; Cowley v. Cheshire and Merseyside Strategic H.A. [2007] EWHC 48 (Q.B.), 94 B.M.L.R. 29, at [53]–[55]; O'Loughlin v. Greig (Q.B., 5 November 1999); Rampling v. Haringey H.A. (Q.B., 30 July 1996), [no pp]; Nash v. Kingston and Richmond H.A. (1996) 36 B.M.L.R. 123; Newbury v. Bath District H.A. (1998) 47 B.M.L.R. 138, 143; Brooks v. Home Office (1999) 48 B.M.L.R. 109, 116; Joyce v. Merton Sutton and Wandsworth H.A. (1995) 27 B.M.L.R. 124, citing trial judge Overend J.'s earlier statement with approval; Adderley v. North Manchester H.A. (1995) 25 B.M.L.R. 42, [no pp]; Neilson v. Basildon of Thurrock H.A. (Q.B., 15 February 1991); Marriott v. West Midlands Regional H.A. [1999] 1 Lloyd's Rep. Med. 23 (“the judge … correctly directed herself that it was not open to her simply to prefer the expert evidence of one body of competent professional opinion over that of another where there was a conflict between the experts called by the parties”).

32 B v. North West Strategic H.A. (City Maternity Hospital Carlisle) [2008] EWHC 2375, at [9].

33 Maynard v. West Midlands Regional H.A. [1984] 1 W.L.R. 634, 638, 648, per Lord Scarman (“[a] court may prefer one body of opinion to another, but that is no basis for a conclusion of negligence”); Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871, 895, per Lord Diplock (“[the court] has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect to any preference it may have for one responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion”); Bolitho v. City and Hackney H.A. [1998] A.C. 232, 243, per Lord Browne-Wilkinson (“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”).

34 Adams v. Rhymney Valley DC [2000] Lloyd's Rep. P.N. 777, at [41] (emphasis added).

35 Bolam, at 587.

36 Bolitho [1998] A.C. 232, 243.

37 Ministry of Justice v. Carter [2010] EWCA Civ 694 (a unanimous judgment delivered 18 June 2010).

38 Ibid., at [28] and [29], per Sir Scott Baker.

39 Ibid., at [22].

40 See, generally: Williams & Co. Ltd. v Michael Hyde & Ass. Ltd. [2000] Lloyd's Rep. P.N. 823.

41 [1957] 1 W.L.R. 583, 587 (emphasis added).

42 (2000) 55 B.M.L.R. 63, at [26] (emphasis added).

43 Gold v. Haringey H.A. [1988] Q.B. 481.

44 Savage v. South Essex Partnership N.H.S. Foundation Trust [2008] UKHL 74, at [50].

45 Bailey v. MOD [2008] EWCA Civ 883.

46 L v. West Midlands Strategic H.A. [2009] EWHC 259.

47 [2010] EWCA Civ 694, at [23] (“That clinical judgment takes the case back to an analysis as described in Bolam and Bolitho”, per Leveson L.J.).

48 Ibid., at 490.

49 J.D. Williams & Co. Ltd. v. Michael Hyde & Ass. Ltd. [2000] Lloyd's Rep. P.N. 823. Also: Royal Brompton Hosp N.H.S. Trust v. Hammond (No 2) [2002] All E.R. (D) 189 (T.C.C.), at [17].

50 A. Dugdale et al. (eds.), Clerk and Lindsell on Torts, 19th ed., (London 2009), at [10.63] (Bolam “only to professional decisions whether or not to use a certain form of treatment [and diagnosis], and not to simple cases of carelessness”); and see, too: M. Jones, Medical Negligence, 4th ed., (London 2008), p. 255.

51 Smith v. Southampton University Hospital N.H.S. Trust [2007] EWCA Civ 387, and discussed further in: B. Moxon Browne QC, “Butterfingers and the Bolam Test: Can Bolam Apply to Simple Clumsiness by the Doctor?” [2008] Injury Times (2 Temple Gardens).

52 Report from the Appeal Committee of the House of Lords (dated 16 October 2007) (on the grounds that the case did not raise an arguable point of law of general public importance).

53 Garcia v. St Mary's N.H.S. Trust [2006] EWHC 2314 (Q.B.), at [88] (“[o]bviously this issue does not relate to medical or surgical diagnosis or treatment. What it relates to is staffing levels. But it has been argued before me on the footing that the Bolam/Bolitho principles apply to that question as well. I, therefore, deal with the case on that basis”).

54 Burne v. A [2006] EWCA Civ 24, at [13] (the point, “while an important aspect of clinical practice, sits at the threshold rather than at the centre of it”).

55 Rehman v. University College London [2004] EWHC 1361 (Q.B.).

56 Mellor v. Sheffield Teaching Hospitals N.H.S. Trust [2004] EWHC 780 (re the medical decision to discharge a patient who was unable to tolerate an exercise test and who complained of chest pain, without conducting further coronary investigation and treatment; patient suffered cardiac arrest shortly after, and died; negligence held, on the basis that either this was not a Bolam matter, or “even if Bolam is applicable to this issue”, the expert evidence which supported the defendant cardiologist's decision to discharge “would not be logically sustainable”: at [245]. The same either/or analysis was evident in, e.g: Sutcliffe v. BMI Healthcare Ltd. [2007] EWHC Civ 476, 98 B.M.L.R. 211, at [33], on which, for criticism, see: P. Case, “Applications of Bolitho to Standard of Care and Causation” (2007) 23 Professional Negligence 193.

57 Fallows v. Randle (C.A., 7 May 1996) (accessed via Lexisnexis, no pagination available).

58 Penney v. East Kent H.A. (2000) 55 B.M.L.R. 63, and applied, in a similar type of case of what was visible to the cytoscreeners, in: Conway v. Cardiff and Vale N.H.S. Trust [2004] EWHC 1841 (Q.B.).

59 Colwill v. Oxford Radcliffe Hospitals N.H.S. Trust [2007] EWHC 2881 (Q.B.).

60 J. Steele, Tort Law: Text, Cases and Materials (Oxford 2007), p. 128.

61 See, e.g.: Marriott v. West Midlands Regional H.A. [1999] Lloyd's Rep. Med. 23, per Bedlam L.J.; and see, more recently: A v. Croydon Social Services [2009] EWHC 939 (Admin), at [79]–[80]. For a non-medical application, see, e.g.: Nye Saunders & Partners (a firm) v. Alan E. Bristow (1987) 37 B.L.R. 97, 103.

62 See n 1 above.

63 Other interesting post-Bolitho reviews have concentrated on different aspects, e.g.: R. Heywood, “The Logic of Bolitho” (2006) 22 Professional Negligence 225; Maclean, A., “Beyond Bolam and Bolitho” (2002) 5 Med. Law Intl. 205.

64 J. Herring, Medical Law and Ethics, 3rd ed., (Oxford 2010), p. 108.

65 Noted, e.g., in: In Re B (A Child) [2000] 1 W.L.R. 790 (Fam. Ct.), at 796, per Otter L.J.; E v. Castro [2003] EWHC 2066, 80 B.M.L.R. 14, at [99]. In Bolitho itself [1998] A.C. 232, 243, Lord Browne-Wilkinson referred to the occasion for the court's contrary decision as “very seldom” occurring. Reiterated in: M v. Blackpool Victoria Hospital N.H.S. Trust [2003] EWHC 1744 (Q.B.), at [42]. Academic commentary has also suggested that the application of Bolitho would occur in “the very rare case”: W. Rogers, Winfield and Jolowicz on Tort, 17th ed., (London 2008), at [5.56], or “may not advance the law very much”: S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin's Tort Law, 6th ed., (Oxford 2008), p. 234.

66 French v. Thames Valley Strategic H.A. [2005] EWHC 459 (Q.B.), at [112]; Hucks v. Cole [1993] 4 Med. L.R. 393, 397 (Sachs L.J.).

67 Calver v. Westwood Veterinary Group (2000) 58 B.M.L.R. 194, at [31], [34] (Simon Brown L.J.).

68 AB v. Leeds Teaching Hospital N.H.S. Trust [2004] EWHC 644 (Q.B.), 77 B.M.L.R. 145, at [226].

69 See, e.g.: Kushnir v. Camden & Islington H.A. (Q.B., 16 June 1995), citing: Bolitho v. City and Hackney H.A. [1993] 4 Med. L.R. 381, 392 (Dillon L.J.). Note, however, the disapproval in: Joyce v. Merton Sutton and Wandsworth H.A. (1995) 27 B.M.L.R. 124, [no pp available] (“it does not assist to introduce concepts from administrative law such as the Wednesbury test; such tests are directed to very different problems and their use, even by analogy, in negligence cases can … only serve to confuse”), and the criticism by noted commentators such as: I. Kennedy and A. Grubb, Medical Law, 3rd ed., (London 2000), p. 442.

70 [2006] EWHC 2880 (Q.B), (2007) 93 B.M.L.R. 166. A point also noted in, e.g.: M. Jones, Medical Negligence, 4th ed., (London 2008), p. 241, fn. 65.

71 Ibid., at [33]. The expert opinion given by the neurosurgeon called on behalf of the defendant GP was in accordance with Bolam, and the court expressly disavowed Bolitho from applying: at [105]–[106].

72 [2002] 2 S.L.R. 414.

73 Ibid., at [65].

74 (1996) 27 B.M.L.R. 124. Also pointed out in, e.g.: J. Montgomery, Health Care Law, 2nd ed., (Oxford 2003), p. 176.

75 Ibid., at p. 144.

76 See Section IIB.

77 McCallister v. Lewisham and North Southwark H.A. (Q.B., 15 December 1993), [no pp] (“This was, in my judgment, a borderline case, and although … [the defendant senior neurosurgeon] can immerse himself in a school of thought which would have condoned intervention here, I am bound to say that I think that school was very much in the minority”; no breach on the basis of negligent treatment; there was, however, a failure to disclose risks). See, too, e.g.: De Freitas v. O'Brien (1995) 25 B.M.L.R. 51 (only 11 specialist spinal surgeons in England could constitute a body of peer opinion as to whether surgery on the patient was accepted medical practice).

78 [2005] EWHC 459 (Q.B.), at [112] (emphasis added).

79 [1993] 4 Med. L.R. 393, and hence, a “long overlooked” decision: M. Lunney and K. Oliphant, Tort Law: Text and Materials, 4th ed., (Oxford 2010), p. 2020.

80 Ibid., at 399.

81 A point also made recently in: Ministry of Justice v. Carter [2010] EWCA Civ 694, at [22], per Leveson L.J., referring to Hucks v. Cole as exemplifying the “group” of Bolitho cases.

82 Gascoine v. Ian Sheridan and Co. (Q.B., 9 September 1994) (legal negligence case for allowing action in medical negligence to be struck out for want of prosecution; clear precaution, when confronted with an invasive malignancy in a patient, was to consult others with wider experience, instead of proceeding to radical treatment by external pelvic irradiation; “some prospect” of showing negligence).

83 Burne v. A [2006] EWCA Civ 24 (child A born with a hydrocephalic condition that required him to be fitted with a ventriculo-peritoneal shunt, which continuously drained excess fluid from the brain cavity, and of which any blockage was potentially critical; clear precaution was for the defendant GP to ask a series of “closed” or leading questions (e.g., was A vomiting, or experiencing headaches?), rather than asking open questions that lead to an incorrect diagnosis of upper respiratory infection; shunt was blocked, and A suffered heart attack and brain damage). A retrial was ordered, on the basis that the medical experts had not been asked to address the Bolitho point; this was necessary before a court could apply Bolitho and reject the GP's expert evidence.

84 Farraj v. King's Healthcare N.H.S. Trust [2008] EWHC 2468 (Q.B.).

85 Penney v. East Kent H.A. [2000] Lloyd's Med. L.R. 41 (where cervical smear slides demonstrated observable abnormalities, clear precaution was not to designate the slide as “negative”, but to only assign negative status to a slide if there could be “absolute confidence” that it had no abnormalities; failure by cytoscreeners to adopt that clear precaution rendered their practice of assigning negative status illogical).

86 (2001) 62 B.M.L.R. 69.

87 [2004] EWHC 1198 (Q.B.). See too: Calver v. Westwood Veterinary Group [2001] Lloyd's Rep. Med. 20, at [34] (noting that one expert “clearly treats animals more defensively” than the other; “Both opinions, however, seem to me clearly capable of logical support and in that situation there is no room for a finding of negligence”; no breach found on appeal).

88 Ibid., at [65].

89 [2005] EWHC 459 (Q.B.), at [113].

90 G v. Central and North West London Mental Health N.H.S. Trust [2007] EWHC 3068 (Q.B.).

91 Ibid., at [152].

92 [2006] EWHC 2314 (Q.B.).

93 Ibid., at [88].

94 Ibid., at [91].

95 Ibid., at [92]–[93].

96 Ibid., at [94]–[95], per Judge Shaun Spencer Q.C., citing: Arthur J.S. Hall & Co. (a firm) v. Simons [2002] 1 A.C. 615, 690, per Lord Hoffmann.

97 Ibid., at [96].

98 French v. Thames Valley Strategic H.A. [2005] EWHC 459 (Q.B.), at [113] (“Mrs French's doctors had to balance her interests and those of the Claimant [newly born daughter], but the balancing is to some extent skewed in favour of the mother”; no breach of duty found).

99 Competing obstetric emergencies meant that one mother/baby was not attended to in time to prevent brain damage to the baby in, e.g.: DA v. North East London Strategic H.A. [2005] EWHC 950 (Q.B.), at [95] (no breach; court satisfied that conduct of attendant obstetrician “represent a sensible and realistic approach”). Also: Smithers v. Taunton and Somerset N.H.S. Trust [2004] EWHC 1179 (Q.B.) (no breach).

100 Bolitho v. City and Hackney H.A. [1998] A.C. 232, 241–42. A direct finding that a comparison was undertaken, and no breach found, occurred, e.g., in: Sutcliffe v. BMI Healthcare Ltd. [2007] EWCA Civ 476, 98 B.M.L.R. 211; Zarb v. Odetoyinbo [2006] EWHC 2880, 93 B.M.L.R. 166 (Q.B.), at [84], [100], [106]; French v. Thames Valley Strategic H.A. [2005] EWHC 459 (Q.B.), at [113]; Ju v. See Tho Kai Yin [2005] SGHC 140, [2005] 4 S.L.R. 96, at [65]; Burke v. Gillard [2003] EWHC 2362 (Q.B.), at [84]; E v. Castro [2003] EWHC 2066 (Q.B.), 80 B.M.L.R. 14, at [186]; Ocloo v. Royal Brompton and Harefield N.H.S. Trust (2001) 68 B.M.L.R. 89, at [62]; Mirza v. Birmingham H.A. (Q.B., 31 July 2001), at [71]; Zinzuwadia v. Home Office [2001] EWCA Civ 842, at [11]; Julien v. East London and City H.A. (Q.B., 10 November 2000); Brown v. Lewisham and North Southwark H.A. (Q.B., 6 March 1998); Hallatt v. North West Anglia H.A. (C.A., 8 April 1998); Ashard v. Cambridge H.A. (Q.B., 26 November 1999); Brooks v. Home Office [1999] 2 F.L.R. 33, 48 B.M.L.R. 109.

101 [2008] EWHC 2237 (Q.B.), at [55].

102 Khoo v. Gunapathy d/o Muniandy [2002] 2 S.L.R. 414, at [64].

103 e.g.: Mellor v. Sheffield Teaching Hospitals N.H.S. Trust [2004] EWHC 780 (Q.B.), at [244]–[245] (decision to discharge patient, with multiple risk factors for coronary disease and low tolerance for exercise, not logically sustainable; risk/benefit calculation pointed “overwhelmingly” in favour of proceeding to a thallium scan); Reynolds v. North Tyneside H.A. (Q.B., 30 May 2002), at [47] (for reasons of risk of infection, no vaginal examination performed upon pregnant woman who presented with complications; child asphyxiated during birth; failure to examine did not withstand logical analysis, given extremely minimal risk of such infection); Marriott v. West Midlands H.A. [1999] Lloyd's Rep. Med. 23, 26–27 (patient suffered head injury in fall; GP failed to refer patient for further neurological tests when, 8 days later, he was presenting with headaches, lethargy and lack of appetite; patient suffered paralysis from intracranial lesion; GP's expert evidence said it was reasonable to leave patient at home, with instructions to wife to telephone if husband's condition worsened; this lacked logical analysis, and patient should have been admitted to hospital for neurological testing and observation, especially when risks of not doing so were so catastrophic, and when facilities for performing scans, etc, were so readily available); Purver v. Winchester and Eastleigh Healthcare N.H.S. Trust [2007] EWHC 34 (Q.B.), at [64] (re the so-called “ten-minute-rule”, whereby at onset of significant foetal bradycardia, baby must be delivered within ten minutes, failing which risk of irreversible brain damage; newborn suffered brain damage due to oxygen deprivation during birth; obstetrician's expert evidence was that it was acceptable medical practice to have proceeded to further traction rather than perform a caesarean section; but any suggestion that longer than 10 minutes was an appropriate objective was “incapable of withstanding logical analysis”); Bouchta v. Swindon [1996] 7 Med. L.R. 62 (County Court (Wandsworth)) (following routine hysterectomy, patient's ureter blocked and damaged; explanation for that damage provided by surgeon's expert testimony not a “good and sufficient explanation”, despite complexities of operation; negligence found); Hanson v. Airedale Hospital N.H.S. Trust [2003] C.L.Y. 2989 (Q.B.) (patient sustained severe brain injury after suffering cardiac arrest at A&E department while unmonitored; hospital failed to urgently request results of blood sample for CPK enzyme; CPK results would have resolved any difficulty with diagnosis; no logical reason why CPK result could not have been expedited).

104 [2005] EWHC 2253 (Q.B.), 87 B.M.L.R. 73. Cited and applied in part in: Purver, ibid.

105 An electronic device attached to a mother's abdomen during labour, which simultaneously records the rate of the foetal heartbeat and the rate of maternal contractions.

106 Kingsberry, ibid., at [45].

107 [2006] EWHC 2314 (Q.B.).

108 Ibid., at [95]–[96].

109 See, e.g.: Smithers v. Taunton and Somerset N.H.S. Trust [2004] EWHC 1179 (Q.B.), at [53(vi)] (no breach); DA v. North East London Strategic H.A. [2005] EWHC 950 (Q.B.), at [95] (no breach).

110 Q.B., 27 May 2004.

111 Ibid., at [27]–[28].

112 Ibid., at [30].

113 Adams v. Rhymney Valley DC [2000] Lloyd's Rep. P.N. 777, at [43], with Sedley L.J.'s dissenting opinion at [19].

114 See n 22 above.

115 See Group Litigation Order No. 9, at: <http://www.hmcourts-service.gov.uk/cms/150.htm>. The title of the litigation was: AB v. Leeds Teaching Hospital N.H.S. Trust [2004] EWHC 644 (Q.B.), 77 B.M.L.R. 145.

116 Ibid., at [213].

117 Ibid., at [215], [217].

118 Ibid., at [237].

119 Ibid., at [240].

120 Ibid., at [220] (a point made during the course of the claimants' submissions).

121 Bank of Montreal v. Dominion Gresham Guarantee and Casualty Co. (Canada) Ltd. [1930] Q.C. 659 (P.C.) 666.

122 Lord Woolf, “Are the Courts Excessively Deferential to the Medical Profession?” (2001) 9 Med. L. Rev. 1, at 1 (emphasis added).

123 Section IIB.

124 [2005] EWCA Civ 1466.

125 Latham and Buxton L.JJ.; Arden L.J. dissenting.

126 Ibid., at [106] (Buxton L.J.).

127 Drake v. Pontefract H.A. [1998] Lloyd's Rep. Med. 425 (Q.B.) (mis-diagnosis of serious suicide risk); Mellor v. Sheffield Teaching Hospitals N.H.S. Trust [2004] EWHC 780 (Q.B.) (mis-diagnosis of serious cardiac disease).

128 [2007] EWHC 509 (Q.B.), at [64].

129 Ibid., at [75].

130 Ogwang v. Redbridge Healthcare N.H.S. Trust (Q.B., 4 July 2003) (pregnant woman discharged from hospital into care of community midwife; sent back to hospital and readmitted the following day; breach of duty).

131 [2002] 2 S.L.R. 414, at [65]–[66].

132 Ibid., at [65].

133 [1998] Lloyd's Rep. Med. 425, at [34].

134 Glicksman v. Redbridge Health Care N.H.S. Trust (Q.B., 23 June 2000), at [14], [24]. The trial judge rejected the defendant surgeon's expert evidence, and found breach; but liability was set aside on appeal, because of a lack of reasoned rebuttal of the experts' views in the trial judge's decision: [2001] EWCA Civ 1097, 63 B.M.L.R. 109.

135 Ogwang v. Redbridge Healthcare N.H.S. Trust (Q.B., 4 July 2003), at [39].

136 Antoniades v. East Sussex Hospitals N.H.S. Trust [2007] EWHC 517 (Q.B.), at [73].

137 AB v. Leeds Teaching Hospital N.H.S. Trust [2004] EWHC 644 (Q.B.), 77 B.M.L.R. 145.

138 Ibid., at [235].

139 [2007] EWCA Civ 387.

140 (2006) 150 S.J.L.B. 1114 (Q.B.).

141 Another surgeon was absolved from negligence with respect to a perforation of the left external iliac vein during the surgery, and special leave to appeal against that finding was refused: see note 52 above.

142 (2006) 150 S.J.L.B. 1114 (Q.B.), at [35].

143 [2007] EWCA Civ 387, at [41], and see too, (2006) 150 S.J.L.B. 1114 (Q.B.), at [60]–[62] for the trial judgment.

144 Ibid., at [44] (emphasis added).

145 See note 33 above.

146 Q.B., 6 November 2000.

147 Ibid., at [78]. See also the criticism of the expert's use of the wrong standard in: Ng Yuk Ha v. Yip Siu Keung (H.K.C.F.I., 19 July 2005).

148 [1998] A.C. 232, 243.

149 [1998] EWCA Civ 596, [1998] P.I.Q.R. P324.

150 Ibid., at 336.

151 See, e.g.: Cowley v. Cheshire and Merseyside Strategic H.A. [2007] EWHC 48 (Q.B.), 94 B.M.L.R. 29, at [55] (no Bolitho application; no breach); Ndri v. Moorfields Eye Hospital N.H.S. Trust [2006] EWHC 3652 (Q.B.), at [35]; Sellers v. Cooke (Q.B., 4 April 1989) (“Honest and brilliant gynaecologists called in this case have given different opinions. One group enculpates, one group exculpates Mr Cooke”; no breach on main allegation); Zarb v. Odetoyinbo [2006] EWHC 2880 (Q.B.), at [34] (“The challenge facing the Claimant is a high one, given the qualifications of [the neurosurgeon called to give evidence on behalf of the defendant GP]”).

152 J. Montgomery, Health Care Law, 2nd ed., (Oxford 2003), p. 176.

153 A. Maclean, “Beyond Bolam and Bolitho” (2002) 5 Med. Law Intl. 205, at 222.

154 e.g., Townsend v. Worcester and District H.A. (1994) 23 B.M.L.R. 31, 45; Nawoor v. Barking Havering and Brentwood H.A. [1998] Lloyd's Rep. Med. 313 (Q.B.), at [last para]; Goby v. Ferguson [2009] EWHC 92 (Q.B.), at [103].

155 note 1 above.

The author is grateful for constructive refereeing comments received upon an earlier draft. Of course, any errors remain solely the author's responsibility.

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