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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. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation.
Patrick Bolitho, a two-year-old boy, was suffering from croup. He was admitted into St Bartholomew's Hospital and was placed under the care of Dr Horn (the senior registrar) and Dr Rodger. Dr Rodger was concerned and arranged for him to be nursed by a special nurse on a one-to-one basis. Patrick had two respiratory episodes where he went pale and his breathing became "noisy". [1] Dr Horn was notified but did not attend to Patrick. However, following each episode Patrick seemed well and was 'jumping' around. Half an hour after the second episode, Patrick suffered both a respiratory arrest and a cardiac arrest. Although he was revived, he suffered severe brain damage and later died.
Patrick's mother, as administratrix of his estate, sued the local health authority for negligence. She argued that Patrick would have lived if he had been intubated. On the health authority's side, it was admitted that Dr Horn had breached her duty of care in not coming to see Patrick. But Dr Horn argued that even if she had come to see Patrick, she would not have intubated him, and such a decision would have been consistent with a respectable body of professional opinion. Therefore, Dr. Horn's argument was that her breach of duty did not cause Patrick's death. [2]
The House of Lords held that "a defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter". So there was a need to decide if the hypothetical decision not to intubate Patrick would have been a breach of duty. The Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. The professional opinion relied upon cannot be unreasonable or illogical. If the opinion were illogical, then the action would still be a breach of duty. Only in "a rare case" would the courts find that the body of opinion is unreasonable. [1]
A group of eight medical experts testified in the case at first instance. Five of them said they would have intubated Patrick after the second episode, let alone the first. Three of them said they would not have. All the experts agreed that intubation is not a routine, risk-free process. [3] Especially on a young child as they must be anaesthetised and ventilated. [3] Dr. Roberton described it as "a major undertaking--an invasive procedure with mortality and morbidity attached". [3] "A young child does not tolerate a tube easily and the child unless sedated tends to remove it." [3] One of the experts stated that Patrick's recovery after each episode did not show a progressive respiratory collapse and that there was only a small risk of total respiratory failure. [3]
Mr Justice Hutchinson, the judge in the original trial, said that as a "layman" he would have thought intubation was the correct procedure (as did five of the experts). However, he did not think the testimony of the other three experts was "unreasonable" or "illogical" therefore he could not dismiss them.
The original judge also concluded that Dr Horn failing to go and attend to Patrick did not cause his death. If Dr Horn had come to see Patrick, she would not have intubated him. That decision would have been supported by a body of professional opinion. Therefore she was not negligent.
The claim was dismissed as causation must be proved to bring a claim in negligence and there was no causation here.
The House of Lords decision in Bolitho seems to be a departure from the old Bolam test established by the Queen's Bench Division in a 1957 case Bolam v. Friern Hospital Management Committee . According to that test, which has been criticised by academic commentators, a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion. However, the court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare". [4]
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Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty. The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances.
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.
Breaking the chain refers in English law to the idea that causal connections are deemed to finish. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant.
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound , is a landmark tort law case, which imposed a remoteness rule for causation in negligence. The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance.
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Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law. It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard.
Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871 is an important House of Lords case in English tort law, specifically medical negligence, concerning the duty of a surgeon to inform a patient of the risks before undergoing an operation.
F v R, is a tort law case. It is a seminal case on what information medical professionals have a duty to inform patients of at common law.
Albrighton v RPA Hospital, is a tort law case concerning the application of the Bolam test for professional negligence.
Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635 is an English tort law case concerning the Bolam test for professional negligence.
Wilsher v Essex Area Health Authority [1988] AC 1074 is an English tort law case concerning the "material increase of risk" test for causation.
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Gregg v Scott [2005] UKHL 2 is an English tort law case, on the issue of loss of a chance, in causation. It affirms the principle of Hotson v East Berkshire Area Health Authority, on a narrow margin of 3 to 2. Lord Nicholls' dissent is of particular note, in arguing that loss of a chance should be actionable.
Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risks.
March v Stramare Pty Ltd Pty Ltd was a High Court of Australia case decided in 1991 on Australian tort law. The case considered the conditions required for causation to be established in tort law, the limitations of the "but for" test and the significance of an intervening act by a third party in determining causation. In this case, the High Court held that, although it was useful in clarifying the facts of the case, the but-for test was not the exclusive test in determining causation as it posed difficulties in attributing responsibility for damages in two key types of cases. The first was in cases when attributing responsibility in cases where the damage was caused by the negligence of more than one party, and the second was in cases where the damage resulted from an intervening act. Instead, the court favoured a case-by-case basis approach in attributing legal responsibility for causation, which took both common sense principles and public policy concerns into consideration when coming to a decision.