Bolitho v City & Hackney HA [1998] AC 232

• Victim was in hospital and suffered respiratory problems twice and recovered, the doctor having failed to turn up. He suffered another attack and suffered brain damage and, later on, died.

• Victim’s parents, Plaintiffs, sued Defendant for negligence on the grounds that had the doctor arrived after the 2nd incident, he would have “intubated” the child, which would have prevented a further attack.

  • However evidence was given to suggest that there was a competent body of doctors whose opinion would have been that it would have been wrong to “intubate” and so the attack would still have happened even if the doctor had been present after the 2nd attack.

• CA held that in cases where the alleged breach of the duty of care was an omission to undertake the proper action, what ought to have been done (i.e. whether the breach caused the injury) was to be determined by the Bolam test (a doctor was not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion).

• However, the “body of professional opinion” relied on had to be a defensible position, and if it was found to be indefensible then the judge could refuse to allow it to be relied on in the Bolam test, e.g. an opinion that amputation was the cure for a headache.

Lord Browne-Wilkinson (supported by all other lords)

• However such a finding would be very rare.

• He said that the Bolam test is one of causation: if Defendant would not have undertaken the necessary action and, in deciding not to do so, was acting within a reasonable body of medical opinion, then the hospital cannot be said to have caused Victim’s injury and death.

  • This isn’t really a lack of causation, since the failure to intubate DID cause Victim’s death (intubation would have saved Victim and there was a duty of care).

  • It is really an excuse, since Defendant can say “yes, I should have intubated, but I my mistake was excusable on the ground that other reasonable doctors would have done the same”.

RELATED CASES

• Bolam v Friern Hospital Management Committee