Sutcliffe v BMI Healthcare Ltd

In professional negligence, a court should not reject a responsible body of professional opinion unless it lacks a logical basis. Bolitho permits that conclusion only rarely. The court must not substitute its preference for one of two clinically supportable views.

Causation remains essential. A breach does not establish liability where the evidence shows that the same injury would have occurred despite the proper observations or treatment. Findings based on accepted expert evidence are ordinarily factual findings and will not be disturbed on appeal unless shown to be wrong.

A healthy 33-year-old patient suffered catastrophic brain damage after aspirating vomit while asleep following routine knee surgery under general anaesthetic. His wife brought a negligence claim against the hospital, alleging negligent nursing care, including failures to provide oxygen and to take specified observations.

The Queen’s Bench Division, in a judgment dated 5 July 2006, found breaches of duty but held that none caused the injury. The judge accepted that the patient’s oxygen levels had recovered, that the relevant observations would have been normal, and that he could have been roused before the aspiration. The appeal challenged the treatment of the nursing evidence, the application of Bolitho, and the causation findings.

1. Appeal dismissed. Lord Justice May gave the principal judgment, with Lord Justice Longmore and Lord Justice Auld agreeing.
2. The judge was entitled to accept that the nursing staff had acted within a responsible body of nursing opinion when they allowed the patient to sleep at about 6.00 am. The decision was supported by his apparently normal recovery, normal PCA observations, normal breathing, and the absence of signs of airway obstruction. The omission to take some ICP observations was negligent, but the separate decision to allow him to sleep was not.
3. Bolitho v City & Hackney Health Authority [1998] AC 232 did not assist the appellant. Its logical-analysis qualification to the professional-negligence test was principally concerned with diagnosis and treatment, although its considerations were not necessarily irrelevant to nursing evidence. The opinion relied on had a logical basis, including consideration of the reason for allowing a patient who had slept little to continue sleeping. This was not one of the rare cases in which professional opinion could not be logically supported. A judge must not choose between two clinical opinions both capable of logical support.
4. The causation finding was open to the judge. The accepted expert evidence established that morphine and fatigue suppressed the gag and cough reflexes sufficiently to permit a single major aspiration, while leaving the patient rousable and with a normal respiratory rate. The omitted observations would have been normal, and an attempt to rouse him would have succeeded. He would then have returned to the same state of sleep, so the aspiration and brain damage would still have occurred.
5. The recovery-room negligence was not causative because the patient’s oxygen saturation recovered on the ward. Oxygen would not have prevented the aspiration or restored the suppressed reflexes. The trial judge’s factual findings and acceptance of expert evidence were not shown to be wrong.

• Court of Appeal (Civil Division): Appeal dismissed; the court upheld the judgment of HHJ Judge Reddihough, sitting as a Judge of the High Court, dated 5 July 2006.
• Queen’s Bench Division: The claim was dismissed after the judge found breaches of duty but concluded that they had not caused the claimant’s brain damage.