Bolitho v. City and Hackney Health Authority

This case concerns medical negligence arising from a failure to attend and whether that omission caused a child patient's catastrophic brain damage. The court set out the proper approach where causation depends on what would have happened had a clinician attended: first, a factual inquiry into what the clinician would in fact have done; second, if that clinician would not have taken the course that would have avoided harm, an inquiry under the Bolam principle whether it would have been negligent not to have done so. The House of Lords held that the trial judge correctly (a) separated the factual question of what would have happened from the normative question of whether failure to intubate would have been negligent, and (b) was entitled to accept the defendant experts' view that intubation was not indicated. The court also clarified that while the Bolam test remains central to assessing professional negligence, the judge may reject a body of professional opinion if it cannot be demonstrated to have a logical basis.

Background and facts:

• Patrick Bolitho, aged two, was admitted to hospital with respiratory problems, suffered two acute respiratory episodes on 17 January 1984, and later collapsed with respiratory obstruction leading to cardiac arrest, prolonged hypoxia, catastrophic brain damage and subsequent death.
• At trial the judge found that Dr Horn had been negligent in failing to attend when asked but that causation was not proved because he accepted expert evidence that intubation would not have been performed by the doctor who would have attended and that, on the accepted medical opinion, intubation was not necessarily the appropriate response.

Procedural posture:

• Trial before Hutchinson J: negligence proved but causation not established.
• Court of Appeal: dismissed the appeal against the trial judge's findings (Dillon and Farquharson LJJ), with Simon Brown LJ dissenting.
• House of Lords: appeal dismissed.

Nature of claim and relief sought:

• The claim was a negligence action seeking damages for the consequences of medical negligence resulting in the death of a child; proceedings continued by the administratrix of the estate.

Issues framed by the court:

1. In an omission case, what would the responsible doctor have done if they had attended (a factual question)?
2. If the attending doctor would not have intubated, would that failure fall below the standard of care required of a competent practitioner (a normative question invoking the Bolam principle)?

Court’s reasoning:

• The House of Lords approved the trial judge's two-stage approach: the Bolam test does not apply to the purely factual question of what an individual doctor would have done, but it is central to deciding whether failing to intubate would itself be negligent.
• The court emphasised that Bolam remains authoritative but clarified that a judge may reject a body of professional opinion if it cannot withstand logical analysis; however, this will be rare because assessment of risks and benefits is typically a matter of clinical judgment requiring expert evidence.
• On the facts the judge was entitled to accept the defendants' expert evidence (in particular Dr Dinwiddie) that intubation was not indicated; the appellant therefore failed to prove causation and the appeal was dismissed.

Appeal dismissed. The House of Lords held that the trial judge correctly separated (1) the factual question of what the doctor would have done had she attended (to which the Bolam test does not apply) from (2) the normative question whether failure to intubate would have been negligent (to which Bolam applies). The judge was entitled to accept the defendants' expert evidence that intubation was not indicated. The court endorsed that while the Bolam test remains central, a court may reject professional opinion that cannot be demonstrated to have a logical basis, though that will be rare.

Trial: Hutchinson J (found breach of duty by Dr Horn but held causation not proved). Court of Appeal: appeal dismissed (Dillon and Farquharson L.JJ.; Simon Brown L.J. dissenting) — reported in [1994] 1 Med. L.R. 381. House of Lords: appeal dismissed ([1997] UKHL 46).