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

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 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 worrying signs. Dr Horn was notified but did not attend to Patrick. Patrick stopped breathing and suffered 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 in 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 the Health Authority argued that even if Dr Horn 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 – the Health Authority argued that the Bolam test was relevant here. So – the Health Authority argued – Dr Horn's breach of duty did not cause Patrick's death.^[1]

Judgment

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. In this case, the opinion of the expert called by the defence was not unreasonable or illogical.

If Dr Horn had come to see Patrick, she would not have incubated him. That decision would have been supported by a body of professional opinion, and that opinion is not illogical. So that decision would not have been negligent. So Dr Horn's only breach of duty was in not coming to see Patrick, and that breach did not cause Patrick's death. Causation must be proved to bring a claim in negligence. So the claim was dismissed.

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".^[2]

See also

• Negligence
• Bolam test

External links

• Bolitho v. City and Hackney Health Authority

Notes

1. Bolitho v City and Hackney Health Authority [1998] A. C. 232
2. See Lord Browne-Wilkinson's