De Freitas v O'Brien

In clinical-negligence cases concerning professional judgment, the claimant bears the burden of proving that the decision was one which no reasonable doctor practising in the relevant speciality would have taken. The Bolam standard does not require support from a numerically substantial body of practitioners. A small body of highly specialised tertiary practitioners may constitute a responsible body of medical opinion, and the issue is not resolved by counting heads. A decision is not negligent merely because another competent body would have acted differently, or because later events show that treatment was unnecessary, if the decision was reasonable when made. Exploratory surgery may therefore be justified by a logical clinical inference where responsible specialist opinion supports it and adequate safeguards are in place.

Patricia De Freitas appealed from the decision of His Honour Judge Byrt QC, sitting as a deputy High Court judge, which dismissed her claim against John O'Brien and Raynier Campbell-Connolly. The claim concerned spinal surgery and alleged negligence by Mr O'Brien in undertaking a second operation without sufficient radiological or clinical evidence of nerve-root compression.

The judge found for both defendants. The claim against Mr Campbell-Connolly was not pursued on appeal. The remaining issues were whether the judge had misapprehended the evidence, whether his findings were undermined by his criticism of Mr O'Brien's operation note, and whether a small group of spinal specialists could constitute a responsible body of medical opinion for the purposes of the Bolam test.

The Court of Appeal unanimously dismissed the appeal.

1. Factual findings and expert evidence. The trial judge had not found that the claimant was free from radicular pain. At most, he found that the symptoms and signs did not themselves amount to unequivocal evidence of it. He was entitled to accept that the altered pattern of pain, restricted movement, scoliosis and the recent operation supported a logical inference that nerve-root compression might exist. The defence experts provided evidence supporting exploratory surgery, and the judge was entitled to prefer that evidence. There was no basis for appellate interference with those findings.
2. The applicable standard. The claimant bore the burden of proving that the decision to operate was one which no reasonable doctor working within the relevant speciality would have taken. The Bolam test did not impose a separate burden on the defendant to prove acceptance by a responsible body of medical opinion: [1957] 1 WLR 582. A contrary competent opinion, or later evidence that surgery was unnecessary, did not establish negligence where the decision was reasonable when made and supported by responsible professional opinion: Maynard v West Midlands RHA [1984] 1 WLR 634; Sidaway v Governors of Bethlem Royal Hospital [1985] 1 AC 871.
3. Size of the specialist body. The supporting body did not have to be substantial in numbers. A small group of tertiary spinal specialists could constitute a responsible body if the judge accepted the quality and representativeness of their evidence. The question was not determined by counting practitioners. The judge was therefore entitled to conclude that the claimant had failed to prove negligence. The approach requiring a substantial body of opinion, stated in Hills v Potter [1984] 1 WLR 641, was not treated as necessary.
4. Operation note and cross-notice. The finding that Mr O'Brien's post-operative note was inaccurate did not determine whether his pre-operative decision was negligent, since the experts' reasoning rested on the symptoms and logical inference. The court declined to reopen the cross-notice, although Otton LJ expressed unease about the extent of the adverse additional comment.

The respondent's costs were ordered to be paid by the Legal Aid Board, subject to a 10-week period for showing cause.

1. Court of Appeal (Civil Division): In De Freitas v O'Brien [1995] EWCA Civ 28, the court unanimously dismissed the appeal.
2. Queen's Bench Division: His Honour Judge Byrt QC, sitting as a deputy High Court judge, dismissed the claimant's action on 11 June 1993 and found for both defendants.