Facts: A 2-year-old boy arrived at the hospital experiencing breathing problems. The issues investigated at trial were wide ranging but as a result of the judge's findings I can state the relevant facts quite shortly. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. . 2002 Jun;8(3):222-3. Click here to remove this judgment from your profile. 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'. It was agreed that the only course of action to prevent the, . The doctor who negligently failed to attend to, the boy said that she would not have intubated had she attended. (Emphasis added.) The Bolam test--should the judge have accepted Dr. Dinwiddie's evidence? As I read his judgment, he was quoting counsel's submission when he described the view that intubation was not the right course as being "unreasonable and illogical." 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. He submitted that the judge had wrongly treated the Bolam test as requiring him to accept the views of one truthful body of expert professional advice even though he was unpersuaded of its logical force. 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. 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. 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). He refused to "substitute his own views for those of the medical experts." It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation.. Facts But professions may, adopt unreasonable practices. Bolitho v City and Hackney Health Authority House of Lords Citations : [1998] AC 232; [1997] 3 WLR 1151; [1997] 4 All ER 771; [1998] PIQR P10; [1998] Lloyd’s Rep Med 26; (1998) 39 BMLR 1. In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. The child’s mother sued for … Her evidence was that her bleep was not working because of flat batteries so that she never got the message. 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. He has subsequently died and these proceedings have been continued by his mother as administratrix of his estate. . 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) 381. 583. Contains public sector information licensed under the Open Government Licence v3.0. Accordingly the judge asked himself the right questions and answered them on the right basis. (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. This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery. (APPELLANT) v. CITY AND HACKNEY HEALTH AUTHORITY (RESPONDENTS) ON 13 NOVEMBER 1997. LORD HOFFMANN My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. LORD CLYDE My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. Bolitho v City and Hackney Health Authority [1998] 2 AC 232. 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? Nurse Newbold immediately returned to Patrick. Five of them were called on behalf of Patrick and were all of the view that, at least after the second episode, any competent doctor would have intubated. 2004. “Mental Capacity, Legal Competence and Consent.” Journal of the Royal Society of Medicine, 920: 415-420. On 15 January he was discharged home. 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. Get 1 point on providing a valid sentiment to this . BOLITHO (ADMINISTRATRIX OF THE ESTATE OF PATRICK NIGEL BOLITHO) (DECEASED) (A.P.) "Bolitho v. City and Hackney Health Authority" [1997] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. Although the judge does not in turn say so, it was implicit in his judgment that he accepted that Dr. Dinwiddie's view was a reasonable view for a doctor to hold. The No complaint is made about this episode in his treatment. To the extent that the Lord Justice noticed the first question--would Dr. Horn have intubated?--he said that the judge was wrong to accept Dr. Horn's evidence that she would not have intubated. As to Dr. Horn, the judge accepted her evidence that she would not have intubated. Get 1 point on adding a valid citation to this judgment. [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. On that basis, the defendants accepted that Dr. Horn was in breach of her duty of care after receiving such telephone calls not to have attended Patrick or arranged for a suitable deputy to do so. Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. Sister Sallabank also heard the buzzer and sent out a call for the cardiac arrest team. 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. I have no doubt that, in the generality of cases, the proposition of law is correct but equally have no doubt that the judge in the circumstances of the present case was not guilty of any self-misdirection. According to the accounts of Sister Sallabank and Nurse Newbold, although Patrick had had two severe respiratory crises, he had recovered quickly from both and for the rest presented as a child who was active and running about. After the second episode, Sister Sallabank instructed Nurse Newbold to sit with Patrick: she was told that the doctors were coming to see him because he had been unwell earlier. Bolitho v City & Hackney Health Authority [1997] Bolton Partners v Lambert (1889) Bonnington Castings v Wardlaw [1956] Borman v Griffith [1930] Boston Deepsea Fishing Co v Farnham [1957] Bottomley v Todmoren Cricket Club [2003] Bourhill v Young [1943] Bower v Peate [1876] BP Exploration (Libya) Ltd v Hunt [1983] Bratty v … At about 2.30 p.m. the events leading to the final catastrophe began. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible. She requested a nurse to stay with Patrick. 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. Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." In such a case the practice will no doubt thereafter be altered to the benefit of patients. It was agreed that the only course of action to prevent the damage was to have the boy intubated. Dr. Horn informed Sister Sallabank over the telephone that she was on afternoon clinic and had asked Dr. Rodger to come in her place. Sister Sallabank told Dr. Horn that there had been a notable change in Patrick's colour and that he sounded as though something was stuck in his throat. Interact directly with CaseMine users looking for advocates in your area of specialization. In consequence, Patrick sustained severe brain damage. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating (1) "The court should not accept a defence argument … change. 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. Facts. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. 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 . 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. I have to say of Dr. Dinwiddie also, that he displayed what seemed to me to be a profound knowledge of paediatric respiratory medicine, coupled with impartiality, and there is no doubt, in my view, of the genuineness of his opinion that intubation was not indicated." Hong Kong Med J. For the reasons which he has given, I, too, would dismiss this appeal. 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. He treats the judge as having only asked himself one question, namely, the second question. Jones RD. She went off to telephone Dr. Horn again. The case came on for trial before Hutchinson J. 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. I turn to consider whether this is one of those rare cases. Medical Law - English Tort Law - Bolitho v. City and Hackney Health Authority *UK LAW* - Essential for Medical Interviews & Examinations of all levels. Accordingly, I agree that this appeal must be dismissed. LORD NOLAN My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. Sister Sallabank asked Dr. Horn to come and see Patrick straight away as he was having difficulty in breathing and was very white. The fact of the case: In Bolitho v City & Hackney Health Authority … Accordingly he held that it had not been proved that the admitted breach of duty by the defendants had caused the catastrophe which occurred to Patrick. As a result he suffered a cardiac arrest. Course Hero is not sponsored or endorsed by any college or university. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated." Nurse Newbold left a colleague with Patrick and reported to Sister Sallabank who told her to bleep the doctors again. See also Bolam principle. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. Sister Sallabank described his respiratory sounds as "awful" but reported that surprisingly he was still talking. . 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), (APPELLANT) v. CITY AND HACKNEY HEALTH AUTHORITY. 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 … I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Mr. Brennan renewed that submission both before the Court of Appeal (who unanimously rejected it) and before your Lordships. 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. 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. Tragic though this case is for Patrick's mother and much as everyone must sympathise with her, I consider that the judge and the Court of Appeal reached the right conclusions on the evidence in this case. From Bolam to Bolitho: unravelling medical protectionism Christopher Stone January 2011 Introduction In 1990/91 the cost of clinical negligence claims to the NHS was estimated at around £52 million1.Twenty years later, by 2009/10, the NHS Litigation Authority (NHSLA) As a result he was re-admitted to St. Bartholomew's on the evening of 16 January. 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. * Enter a valid Journal (must The Privy Council held that even though completion in Hong Kong style was almost universally adopted in Hong Kong and was therefore in accordance with a body of professional opinion there, the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. It involves anaesthetising and ventilating the child. 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. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. 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. L.R. (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. . Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151 House of Lords A 2 year old child was admitted to hospital suffering from breathing difficulties. 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. Bolitho v City & Hackney HA [1998] AC 232 Case summary last updated at 19/01/2020 12:07 by the Oxbridge Notes in-house law team. 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. Before your Lordships, Mr. Brennan, for the appellant, submitted, first, that the Bolam test has no application in deciding questions of causation and, secondly, that the judge misdirected himself by treating it as being so relevant. Search Browse; Resources Citation. and (2) If she would not have intubated, would that have been negligent? Dr. Rodger examined him and was also concerned about his condition. The doctor summoned to deal with the matter never received the summons due to a low … Therefore the Bolam test had no part to play in determining the first question, viz. 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. On the facts of a particular case the answer to the question, whether the defendant’s conduct conformed to approved professional practice may, decide the issue of negligence, and the test has been posed in such terms in a number, of cases. 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. At around 2 p.m. the second episode occurred. By the end of the trial it was common ground, first, that intubation so as to provide an air way in any event would have ensured that the respiratory failure which occurred did not lead to cardiac arrest and, second, that such intubation would have had to be carried out, if at all, before the final catastrophic episode. The judge held that the evidence of Sister Sallabank and Nurse Newbold as to Patrick's behaviour (which he accepted) was inconsistent with a child passing through the stages of progressive hypoxia. Although he retained his colour he became a little agitated and began to cry. discover english bolitho pdf J.bolithounsw.edu.au. 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. An example. In this case, again the appellant patients appeal was dismissed. 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. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. 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. 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. is not determinative of the issue of causation. The judge accepted Sister Sallabank's version (which is the one I have summarised above). in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed. For example, in Hucks v. Cole (a case from 1968 reported in [1993] 4 Med. Chappel v Hart … There was evidence, that he would not have intubated whereas five other experts, be a logical basis for the opinion not to intubate. ... Bolitho v City and Hackney Health Authority. Pearce v United Bristol Healthcare NHS Trust [1999] 48 BMLR 118. where the Court sets the law not the profession. Format: pdf… He was very white in colour. This would involve a weighing of, risks against benefit in order to achieve a defensible conclusion. In case of any confusion, feel free to reach out to us.Leave your message here. The child died as a result. She described Patrick as being very chatty and interested in reading the letters on a dish. I would dismiss the appeal. In all cases the primary question is one of fact: did the wrongful act cause the injury? By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. Please log in or sign up for a free trial to access this feature. dissenting. A young child does not tolerate a tube easily "at any rate for a day or two" and the child unless sedated tends to remove it. Buchanan, Alec. 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. 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. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. 634, 639: ". The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. 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. Bolitho v City and Hackney Health Authority This information is only available to paying isurv subscribers. . Main arguments in this case: A medical professional can be held negligent even if the standard of care he or she applied in treating a patient was in accordance with the other professional in his or her field. . richard bolitho pdf Accessibility map of the Kensington Campus, UNSW, for download in PDF format.Sloop of War: Bolitho Series, Book 5. However, he found that she would have made preparation to ensure that speedy intubation could take place: in the event that proved to be an irrelevant finding since the judge found that such preparations would have made no difference to the outcome. The defendants' experts, on the other hand, considered the facts as recounted by Sister Sallabank indicated that Patrick was quite well apart from the two quite sudden acute episodes at 12.40 p.m. and 2 p.m. Judgement for the case Bolitho v City & Hackney HA. contains alphabet), Bolitho v. City and Hackney Health Authority. Bolam test for professional negligence laid down in Bolam v. Friern hospital Committee! Of, risks against benefit in order to achieve a defensible conclusion himself one,. But did not occur had occurred City and Hackney Health Authority [ 1998 ] 2 AC.! With mortality and morbidity attached -- it was an assault. suspected as the cause, or even the. Rightly made by the nurse observing Patrick called Sister Sallabank also heard the buzzer and sent out call... The circumstances, have treated with penicillin you were one of fact did! 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