How The Bolitho Test Changed the Understanding of Medical Negligence
The Bolitho Test, which resulted from the 1996 court case of Bolitho v City and Hackney HA, is an amendment to the Bolam Test, one of the most important rulings with regard to medical negligence.
In 1957, The Bolam Test had stipulated that no doctor can be found guilty of negligence if they are deemed to have acted “in accordance with a responsible body of medical opinion.” The Bolitho Test helped to clarify what was meant by “a responsible body,” defining it as one whose opinion had a “logical basis.”
Combined together, the Bolam Test and the Bolitho Test make up the twin pillars of all assessments of medical negligence. They state that a doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical.
This post covers the history of the Bolitho Test, outlining how it changed the Court’s approach to medical negligence (for the Bolam Test, click here).
The facts of the case
The circumstances of Bolitho v City and Hackney HA were rather tragic. On 11 January 1984, Patrick Nigel Bolitho, a two-year old child, was admitted to St. Bartholomew’s Hospital in London, suffering from croup. He was seen by the senior house officer in pediatrics, as well as by their superior, the senior pediatric registrar. Neither were overly concerned by his condition, and on 15 January he was discharged.
The following day, however, Patrick’s condition worsened severely, and his parents brought him back to hospital, where he was seen again by the senior house officer in pediatrics. The doctor agreed that Patrick’s condition had deteriorated, so he assigned a nurse to care for him individually. The following morning, Patrick was seen by the consultant doctor on duty, who felt that he was much improved.
Later that afternoon, Patrick’s symptoms worsened again. A senior nurse attended him and contacted the senior pediatric registrar, asking her to come and see Patrick immediately. Hearing Patrick’s new symptoms, the senior pediatric registrar said that she would come as soon as possible. In the event, however, neither she nor the senior house officer went to see Patrick.
After a brief interlude, Patrick’s condition deteriorated further, so the senior nurse again called the senior pediatric registrar and asked her to attend. This time the senior pediatric registrar said that she was in an afternoon clinic that she could not leave. She stated that she had already asked the senior house officer to attend and that she would ask again. The senior house officer later testified that the batteries in her pager had run flat, so she never received these messages.
Half an hour later, Patrick collapsed. He was unable to breathe and he suffered a cardiac arrest. He was revived approximately ten minutes later, but he suffered severe brain damage. He subsequently died and his parents issued a claim of negligence against the hospital.
The judgment
The judge presiding over the case determined that the senior pediatric registrar was in breach of her duty of care for not having attended Patrick despite receiving multiple calls from the senior nurse. Thus, medical negligence was established.
This led to a second step, however, which centred around a question of causality. The judge had to establish whether or not the cardiac arrest would have been avoided if the senior pediatric registrar (or another suitably qualified deputy) had responded (even though, in reality, they didn’t).
All parties in the trial agreed that Patrick would not have suffered a cardiac arrest if he had been intubated by a doctor (that is, if he had had his airway artificially opened with a tube). However, the senior pediatric registrar maintained that she would not have intubated Patrick even if she had attended him.
This meant, therefore, that there was yet a further matter to consider, a matter directly related to the question of medical negligence under the terms of the Bolam Test. As mentioned, the Bolam Test states that: “if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent.” Thus, the judge had to determine whether a decision not to intubate would also have been taken by a responsible body of medical opinion.
In order to assess this, the judge heard evidence from a total of eight Expert Witnesses. Five of these were called on behalf of Patrick; they stated clearly that “any competent doctor would have intubated.” The other three were called on behalf of the defendant hospital and stated the opposite: “intubation would not have been appropriate.”
This division called the judge’s attention to an earlier ruling related to the Bolam Test delivered in Maynard v West Midlands Regional Health Authority (1984). This case concerned the necessary course of action whenever two sets of Expert Witnesses hold diametrically opposing views. The judge in this case stated:
In the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor... is necessary.
In accordance with this ruling, the judge in the Bolitho case found that the senior pediatric registrar had not been guilty of negligence, since a respectable body of medical opinion (three Expert Witnesses) would also not have intubated Patrick, if they had attended him.
The importance of logic
Patrick’s case led to a number of appeals, and while the decision regarding negligence was not overturned, these appeals did change how the Bolam Test was perceived in the eyes of the Court.
In the course of these appeals, it was asserted by the plaintiff that “the views of the defendant’s experts simply were not logical or sensible.” More specifically, the plaintiff claimed that:
Given the recent and the more remote history of Patrick’s illness, culminating in these two episodes, surely it was unreasonable and illogical not to anticipate the recurrence of a life-threatening event and take the step which it was acknowledged would probably have saved Patrick from harm [intubation]? This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery.
When this appeal was heard in the House of Lords, the presiding Lord stated that he agreed “with these submissions to the extent that… the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts.” He further stated 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.
Nowadays, this statement forms the basis of the Bolitho Test. As demonstrated, it dictates that, while it may be possible to find a number of medical professionals who argue that they would have acted in a particular way, it is the responsibility of the Court to determine whether or not that particular course of action would have been logical. This condition is now a key part of any Court’s decision in cases of medical negligence.
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.