The correct use of the Bolam test
Dr Jock Mackenzie considers recent clinical negligence cases which raise the question of when the Bolam, Montgomery, and Penney tests should apply
In EXP v Charles Simon Barker  EWCA Civ 63, the Court of Appeal (Black, Irwin, and Henderson LJJ) rejected an appeal by a neuroradiologist, B, against the decision of Kenneth Parker J. The claim concerned the negligent failure by B to identify on an MRI scan in 1999 a right cerebral artery aneurysm, which subsequently haemorrhaged causing significant injury. The judge had been critical of B’s expert neuroradiologist, M, for his failure to disclose his association with B and, accordingly, a potential conflict of interest.
B appealed on the basis the judge had failed to apply the test in Bolam v Friern Barnet Hospital Management Committee  2 All ER 118 and, having decided to admit M’s evidence, had failed to evaluate that evidence on its merits. The appeal court considered there was no basis for the assertion the judge had not applied the Bolam test and, in any event, while the judge had been entitled to form the view that the weight to be attributed to M’s evidence had been considerably diminished, the case turned on its own facts and the judge had been entitled not to prefer M’s evidence.
In another appeal case, Webster v Burton Hospitals NHS Foundation Trust  EWCA Civ 62, Jackson, Simon, and Flaux LJJ allowed an appeal by the claimant, W, against the decision of HHJ Inglis. It had been agreed between the parties that the defendant’s obstetrician had negligently failed to perform an ultrasound scan but the judge nevertheless concluded that, applying Bolam, such a scan reasonably would not have resulted in induction and delivery three days earlier, avoiding brain damage.
W appealed on the basis the Bolam test was not the correct test to apply and the judge had erred in failing to apply the test in Montgomery v Lanarkshire Health Board  2 All ER 1031. The appeal court agreed: W’s mother should have been warned of an increased risk with a delay in delivery and, had she been so warned, she would have opted for delivery sufficiently early to have avoided brain injury.
In a case concerning the misdiagnosis of a malignant melanoma, Muller v King’s College Hospital NHS Foundation Trust  EWHC 128 (QB), Kerr J had to consider the appropriate test to apply to a potential breach of duty by a histopathologist reviewing biopsy slides: the defendant Trust, K, argued it was the Bolam test; the claimant, M, argued the correct test was that laid down by the Court of Appeal in Penney v East Kent Health Authority  PNLR 323, namely that the court must determine the objective facts about what pathological features were on the slides (which was a matter of agreement in this case) and then decide whether, in light of the differing experts’ views, the misdiagnosis was one that must have been made without the use of reasonable skill and care.
The judge concurred with this analysis and held that K’s expert’s view that there had been no breach in accordance with Bolam did not stand up to logical analysis and fell within the exception in Bolitho v City and Hackney Health Authority  4 All ER 771, applied.
In a further informed consent case, Lisa Thefaut v Francis Johnston  EWHC 497 (QB), Green J considered that the defendant neurosurgeon, J, was liable to the claimant, T, for failing to communicate material risks involved in the proposed treatment and to give reasonable alternatives or variants, in accordance with Montgomery. J had not provided the chances of surgery aggravating T’s back pain, of up to 5 per cent, and had not set out the option of her not having surgery, which T would have followed, at least until she had received an accurate second opinion.
The claimant appellant, W, in Willmott v Rotherham NHS Foundation Trust  EWCA Civ 181 was unsuccessful on the basis that the appeal court (Jackson, McCombe, and Sales LJJ) was not persuaded that the trial judge (HHJ Moore) had said or done anything which gave an objective appearance of bias or predetermination of issues addressed in evidence.
The case concerned a knee replacement, a subject about which the judge had had personal experience and had read around extensively. He raised and discussed this during the trial, so much so that an application was made for his recusal, which he rejected. While the appeal court was critical of the judge for discussing so extensively his personal experience, it did not consider that that had affected his judgment, which had been fair and objective.
In another appeal case, the Court of Appeal had to consider the liability of an A&E receptionist in an appeal by the claimant, D. In Darnley v Croydon Health Services NHS Trust  EWCA Civ 151 (Jackson and Sales LJJ, McCombe LJ dissenting), the court agreed with the trial judge, HHJ Robinson, and held that the receptionist did not have a duty to advise D about waiting times (Caparo Industries plc v Dickman  1 All ER 568 applied).
In the alternative, D’s damage (a stroke) was outside the scope of any duty owed, and, in the further alternative, there had been no causal link between any breach of duty and that damage, as D had been told to wait in A&E but had chosen to leave hospital.
In Barnett v Medway NHS Foundation Trust  EWCA Civ 235, the Court of Appeal (Hallett, Hamblen, and Irwin LJJ) had to consider an appeal by the claimant, B, who had suffered with paraplegia due to a spinal abscess which, it was alleged, would have been avoided if blood cultures had been taken and a longer course of antibiotics prescribed. In a brief judgment, while the judge (HHJ Forster QC) identified some breaches of duty, the progression of the infection had been uncertain, notwithstanding evidence from two microbiologists, such that it was not established that blood cultures would have revealed the infection or that further antibiotics would have prevented the injury, thus B had failed to discharge the burden of proof.
B complained that the brevity of the judgment left in doubt the judge’s reasoning and the appeal court was critical of such a ‘remarkably succinct’ judgment, considering that such brevity ‘went too far’. However, the court did not consider that the judge had erred as, given the complexity of the medicine and the ‘difficult and shifting’ microbiology expert evidence, there was no clear picture as to the course of the infection. The court held the judge had been justified in his inability to resolve an issue of fact, applying Stephens v Cannon  EWCA Civ 222 and Verlander v Devon Waste Management  EWCA Civ 835, and he was entitled to conclude that B had failed to establish causation as a probability rather than just a possibility.
Existing knowledge at the time
In Finna Sullivan v Guy’s & St Thomas’ NHS Foundation Trust  EWHC 602 (QB), Foskett J found against the claimant, F, who had brought a claim for the brain damage caused to her child during cardiac surgery, a Hemi-Fontan procedure which involved the child being in circulatory arrest for a period. The principal issue was whether, in 1998, it had been negligent of the surgeon to fail to reduce the temperature to below 24 degrees Celsius during this period of arrest. The judge considered the absence of NICE guidelines or of a hospital protocol was not determinative of the issue and that, while many surgeons may not have done the same, it was logically defensible in this case on the basis of existing knowledge at the time.
Midwives attending a home birth were found by May J not to have been negligent as, on all the evidence, they had provided appropriate care and were not responsible for the claimant’s cerebral palsy. In H v Southend Hospital NHS Trust (LTL 11/4/2017 Extempore), the judge concluded that neither a positive nor a negative inference could be drawn from the absence in the medical notes of entries of fetal heart rate for 15 minutes: it was inconceivable that the midwives would stop recording for that period, having done so up to then. The cases of Keefe v Isle of Man Steam Packet Co Ltd  EWCA Civ 683 and Raggett (Deceased) v King’s College Hospital NHS Foundation Trust  EWHC 1604 (QB) did not help, as those cases concerned an absence of records rather than a gap in available records.
In Haywood v University Hospitals of North Midlands NHS Trust  EWHC 335 (QB), Holroyd J found for the claimant, H, on the basis that a post-operative tachycardia and raised white cell count should have resulted in antibiotics being given, rather than discharge from hospital, which in turn would have avoided H’s subsequent stroke and brain injury.Finally, in a case concerning the determination of breach of duty as a preliminary issue, McGuinn v Lewisham & Greenwich NHS Trust  EWHC 88 (QB), Jeremy Baker J held that two clinicians who had undertaken two separate antenatal scans were in breach in failing to have identified a risk of microcephaly and referred for further investigation.
Dr Jock Mackenzie is a partner and solicitor advocate at Anthony Gold. He is qualified both as a medical doctor and as a solicitor.