Why Bolitho v City and Hackney Health Authority is important
In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. 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 rational analysis.
Bolitho, then 2 years-old, was admitted to hospital suffering from croup. He was discharged after 4 days. Bolitho remained restless and out of breath, so was brought back into hospital the following day.
The nurse assigned to Bolitho observed that he was having serious trouble breathing and had gone very white. She therefore notified the doctor and asked him to see the claimant. The doctor never attended. This happened a second time, and the nurse explained to the doctor what had happened over the phone.
Bolitho had a third episode. He was completely unable to breath and entered cardiac arrest. He was revived, but after nine or ten minutes without full respiratory and cardiac functions. As a result, the claimant suffered severe brain damage and then died.
Bolitho brought an action in the tort of negligence against the defendant health authority. This action was continued by Bolitho’s mother as adminastrix of his estate.
The claimants argued that the doctors failed to take reasonable care by not attending to Bolitho after the call from the nurses.
The defendant argued that, as a matter of causation, even if they had attended the claimant they would not have been able to help him. They said that they would not have failed to take reasonable care if, on attending Bolitho, they would have done nothing.
The House of Lords had to decide whether the defendant failed to take reasonable care, and whether this caused the claimant harm. The question of breach was a bigger concern of the House.
The House dismissed the claimant’s case: the defendant health authority had not failed to take reasonable care.
The lead judgement, with which the rest of the House agreed, was given by Lord Browne-Wilkinson.
Identifying the relevant question
This case was more complicated because of the overlapping questions of breach and causation. The Court had to decide, as a matter of causation, what would the doctors have done had they attended the claimant (based on the doctor’s evidence), and then whether this hypothetical act was negligent. In the words of Lord Browne-Wilkinson:
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? and (2) If she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second.
Answering these questions
Lord Browne-Wilkinson upheld the trial judge’s decision on the first question, concluding they had satisfactorily considered this point. Therefore, he continued on the basis that had the doctor attended Bolitho they would not have intubated him.
On the second question, Lord Browne-Wilkinson applied the Bolam principle. He noted that it was not enough for the defendants to raise some expert evidence from doctors who would have, or do, act in the same way as the defendants. Instead, the question is whether a reasonable or respectable body of the profession would do this, or take this opinion. Lord Browne-Wilkinson said:
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.
Whilst Lord Browne-Wilkinson felt, as a layman, that the doctor should have incubated the claimant, applying the Bolam principle he had to consider the doctor’s evidenceas it was based on logical grounds. The exact reasons were as follows:
Dr. Dinwiddie’s view was that these symptoms did not show a progressive respiratory collapse and that there was only a small risk of total respiratory failure. Intubation is not a routine, risk-free process. Dr. Roberton described it as “a major undertaking–an invasive procedure with mortality and morbidity attached–it was an assault.” … In those circumstances it cannot be suggested that it was illogical for Dr. Dinwiddie a most distinguished expert to favour running what, in his view, was a small risk of total respiratory collapse rather than to submit Patrick to the invasive procedure of intubation.
The Court therefore held that the doctors had not failed to take reasonable care, and the claimant’s case was dismissed.