This article appeared in the February 1998 edition of the Catholic Medical Quarterly
Bolitho V. City and Hackney Health Authority
The Test in Cases of Secondary Medical Negligence
1. 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". By this, I mean the second hurdle which a Plaintiff may have to cross in getting home an allegation of medical negligence where the first hurdle consists of an allegation of negligent omission. In such cases, the question arises: what would have happened had the doctor done what he or she ought to have done? Would the outcome have been avoided? If not, should it have been avoided? The concept becomes clear when the facts of Bolitho are considered.
2. This case epitomises every parent's nightmare. Patrick Bolitho was a normal, inquisitive, lively 2 year old until January 1984 when he started suffering from croup. His parents did everything right: he was admitted to St Bartholomew's hospital, treated under the care of the senior paediatric registrar, and discharged home on 15 January 1984. However, his parents again became concerned on 16 January and took him back to St Bart's, where he was again admitted. The SHO was sufficiently concerned about his condition to arrange for him to be "specialled"'.
3. On 17 January 1984, at about 12.40 pm, there was the first of what turned out to be 3 "episodes". The experienced ward sister described Patrick as being white in colour with "awful" respiratory sounds. She was so concerned that she, bleeped the registrar direct, missing out the SHO. She told the registrar that there had been a notable change on Patrick's colour, and he sounded as though there was something stuck in his throat. Although the registrar said she would attend as soon as possible, she failed to do so. After the call, the sister returned to find that Patrick was walking about and pink in colour.
4. At 2.00pm, a second, similar episode occurred. Again, the sister spoke to the registrar who explained that she was on afternoon clinic and had asked the SHO to look at Patrick. Even while they were talking, the nurse came and told the sister that Patrick had again recovered his colour. The SHO was still expected, but never attended: her bleep was not working because the batteries were flat.
5. At 2.30 pm, the third episode occurred. Initially, Patrick became agitated and began to cry. Whilst the doctors were being bleeped, he suffered respiratory arrest leading to cardiac arrest. It was 9 or 10 minutes before respiratory and cardiac functions were restored, during which time Patrick suffered catastrophic brain damage. In the time between these events and the determination of the legal proceedings, Patrick died.
6. On the above basis, it took little effort to conclude that there was negligence on the part of the registrar in failing to attend on the occasion of the first 2 calls or in arranging for a deputy to attend on her behalf. Hence, what I call "primary liability" was established. However, there remained the question of causation, within which was, or might be, contained the question of secondary negligence. Thus, to establish that the registrar was negligent in failing to attend was not enough: what would she have done had she attended? In particular, would the cardiac arrest have been avoided? The expert evidence showed that, in order for the cardiac arrest to be avoided, it would have been necessary for Patrick to be intubated before the final catastrophic episode. If, in evidence, the registrar had said that, had she attended at 2 pm, she would have intubated Patrick, then that would have been the end of it and causation would have been established. However, she in fact said that she would not have intubated him, and this evidence was accepted by the judge. In those circumstances, the issue of what I call "secondary negligence" arose: would such a failure to intubate have itself been negligent? If so, then the fact that the registrar would not have intubated had she attended would have been irrelevant and the Defendant would have been liable for the damage to Patrick either way. The essence of the decision of the House of Lords was that, in deciding this question of secondary negligence, the court should apply the Bolam test as if to a question of primary negligence and ask itself the following question: in failing to intubate, would the registrar have been acting "in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art'? As the answer to this question was in the affirmative, because the hypothetical non-intubation had the support of a distinguished expert called on behalf of the Defendant whose evidence the judge was unable to reject, the Defendant succeeded and Patrick's poor parents failed in their claim for compensation, initially on Patrick's behalf and ultimately on behalf of his estate.
7. Is this decision right, in principle or on policy grounds? On any view, it must have been very hard to explain to Patrick's parents. But how could the decision have been any different on logical or legal grounds? The answer may lie in considering the fact that, in relation to questions of secondary negligence, one is dealing with a hypothetical situation, and that there may be an argument for relaxing the somewhat harsh Bolam test in such situations. Supposing this had been a case of primary negligence, so that the registrar had attended but decided not to intubate, and Patrick had sustained the brain damage despite the lack of the primary negligence of not attending. In those circumstances, the Bolam test would have been applied to the registrar's decision. But equally, the registrar's decision would have been taken after she had, hopefully, undertaken a full examination of Patrick and had been able to make that decision in the light of the full clinical findings and circumstances. It is the very fact that the decision being questioned - whether or not to intubate - is hypothetical when it ought not to have been that gives the impression that to judge that question in line with the Bolam test may be to short-change the Plaintiff when it comes to justice. For example, the registrar, had she attended, might have detected something in Patrick's condition which had since been obliterated by the subsequent events and which, had it been detected, could have led to a quite different course of events. We shall never know. But if the reason we shall never know is the negligence of the doctor in the first place in not attending, shouldn't there be some sort of evidential presumption in favour of the Plaintiff who finds himself in such a position, so that events are interpreted as favourably as possible from the Plaintiffs point of view, so long as such an interpretation is consistent with such facts as are known?
8. This would he akin to an application of the maxim "omnia praesumuntur contra spoliatorem" ("everything should be presumed against the destroyer") where evidence has been destroyed by one of the parties to an action. The first recorded example of the application of this principle is the charming case of Armory v Delamirie in which a chimney sweep found a jewel and took it to a jeweller for valuation. The jeweller took the jewel out of the socket and refused to return it. The chimney sweep successfully sued the jeweller in trover, and on the measure of damages Chief Justice Pratt said:
"... unless the defendant did produce the jewel, and shew it not to be of the finest water, they [the jury] should presume the strongest against him, and make the value of the best jewels the measure of their damages".
The application of this maxim to a situation such as Bolitho would not in fact involve any change in the law as interpreted by the House of Lords, as it could be brought in at the earlier stage of deciding what, had she attended, the registrar would have done, ie at the causation stage, to which Bolam has no application. The decision whether or not to intubate would, had the registrar attended, have been decided on the basis of her clinical findings. I suggest that, in circumstances where the registrar has negligently not attended and so deprived herself of the opportunity of making that clinical decision, then when it is in effect made for her by the court deciding what she would probably have done, justice requires the application of the maxim omnia praesumuntur. Thus, given that intubation was necessary for the damage to Patrick to have been avoided, every unknown factor which the registrar might have found had she attended and examined Patrick, should be assumed favourably, in other words in a way which militates towards intubation rather than against it. If though, despite the application of the presumption, it is nevertheless decided that the action which needed to be taken would not in fact have been taken, then the application of the Bolam test may well be fair because one is then judging that clinical decision in the light of the most favourable circumstances available to the Plaintiff: in fact, in many cases, the presumed circumstances will be more favourable than they would have been had the decision been actual, not hypothetical. In so far as this may involve a punitive element, this is the price that should be paid for the negligent omission in the first place: the crocodile tears one may shed for the Defendant in such a position are as nothing compared to the real tears which the parents of Patrick Bolitho will have shed.
9. Finally, the reader may ask himself. how was it that the judge found that the notional failure to intubate would have been reasonable? Thus, one might have thought that the registrar, at- tending after the second episode, would or should have reasoned: there have already been 2 serious episodes from which Patrick has thankfully recovered; it is therefore reasonable to assume that it is likely there will be a third; and if there is, he may well not he so lucky the third time, but may suffer an acute respiratory obstruction or arrest; and weighing the risk or disadvantage of intubation against the benefit should there be such a third episode, any rea- sonable doctor in those circumstances would have intubated. In answering this question, the learned judge applied the Bolam test, namely the test set out in the direction of McNair J. to the jury in Bolam v Friern Hospital Management Committee [19571 1 W.L.R. 583 at page 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.. 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."
In the trial, the judge heard evidence from 8 medical experts: 5 of them, called on behalf of Patrick, were all of the view that, at least after the second episode any competent doctor would have intubated. However, the 3 experts called by the Defence all said that, on the symptoms as recounted by the nurses, intubation would not have been appropriate. Of these, the judge was most impressed by the evidence of Dr Dinwiddie, a consultant paediatrician in respiratory diseases at The Hospital for Sick Children, Great Ormond Street.
10. Reciting the argument of Counsel for Patrick, Mr Brennan, the judge stated as follows:
"Mr Brennan also advanced a powerful argument - which I have to say, as a layman, appealed to me - to the effect that the views of the defendant's experts simply were not logical or sensible. Given the recent and more remote history of Patrick's illness, culminating in these 2 episodes, surely it was unreasonable and illogical not to anticipate the recurrence of a life-threatening event and take the step which it was acknowledged would probably have saved Patrick from harm? This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery. 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."
This argument, repeated by Mr Brennan before the House of Lords, was considered by Lord Browne- Wilkinson who, having reviewed the authorities, said:
"... 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 ... 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 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."
Thus, it would only have been if the judge had been able to hold that Dr Dinwiddle's opinion was not reasonable or responsible, when subjected to logical analysis, that he would have been entitled to reject it, and, applying the Bolam test, find in favour of the Plaintiff. However, on the evidence, the judge found that Dr Dinwiddle's views were not illogical: thus, intubation itself carries a risk of morbidity and mortality, involving as it does anaesthetising and ventilating a child. And having found Dr Dinwiddic to be an impressive witness, and given his distinction in the field of paediatric respiratory medicine, it was really quite impossible for the judge to find that it was illogical for Dr Dinwiddle to favour the running of what he believed to be a small risk in not intubating, namely the risk of total respiratory collapse, rather than submit Patrick to the invasive procedure of intubation. In those circumstances, applying the Bolam test in its full rigour to the secondary negligence question, the House of Lords found that the judge had been right to acquit the Defendant of blame on the basis that, had the registrar attended and not intubated, she would thereby have been acting in accordance with a responsible body of medical men skilled in the art of paediatric respiratory medicine.
Martin Spencer is barrister-at-law, Inner Temple.