Bolitho v City and Hackney HA
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.
Facts
The claimant's son was admitted into the hospital for respiratory difficulties and was placed under the care of Doctor Horn. Doctor Horn did not see the patient due to her beeper being broken. The doctor delegated the care to another doctor, her junior, Doctor Rodger. Doctor Roger also did not see the plaintiff's son. This led to further complications in the patient and then severe brain damage from which he eventually died. The claimant argued that the son would have lived if the child had been intubated, and that the defendant had been negligent. The defendants argued based on Bolam v Friern Hospital Management Committee [1957] that if they had seen the patient, they would not have intubated him; furthermore, their decision not to have intubated him earlier could be confirmed by a reliable and respectable body of opinion.[1]
Judgment
The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. 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'. This has been interpreted as being a situation where the Court sets the law not the profession. However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case".[2] On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided.
Commentary
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".[3]
See also
External links
Notes
- ↑ Bolitho v City and Hackney Health Authority [1998] A. C. 232
- ↑ See Lord Browne-Wilkinson's speech in Bolitho
- ↑ See Lord Browne-Wilkinson's
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