Wake (A Child) v Johnson

Clinical negligence is assessed by the Bolam standard, subject to the court’s duty under Bolitho to scrutinise whether the supporting professional opinion has a logical and defensible basis. Compliance with clinical guidance is strong evidence of reasonable practice, but it does not automatically absolve a clinician where the guidance leaves relevant circumstances unaddressed. A claimant cannot establish breach merely by showing that another doctor would have acted differently or that the unfavourable outcome might have been avoided by referral. The court must assess the evidence without hindsight, including the reliability of expert opinion and the practical significance of the presenting symptoms. On the evidence, management within the NICE traffic-light guidance was acceptable general practice, and referral would probably have led to substantially the same course.

The claimant, a child with a congenital heart condition, developed severe neurological injury following pneumococcal meningitis. He alleged that the defendant general practitioner negligently failed to refer him to hospital after an out-of-hours consultation on 1 January 2010, when he presented with fever, headache and vomiting. The defendant relied on his contemporaneous note, which recorded no meningism, rash or other evidence of bacterial illness, and advice to return if the condition did not improve.

The court had to determine the facts of the consultation, whether the treatment fell below the required standard, and whether earlier referral would probably have altered the outcome.

1. Judgment for the defendant. The claimant failed to prove that the account given by his parents was accurate where it diverged from the defendant’s contemporaneous note and the subsequent medical records. The defendant’s evidence was preferred.
2. The court applied the Bolam test: a practitioner is not negligent when acting in accordance with a practice accepted as proper by a responsible body of skilled medical opinion. Under Maynard v West Midlands RHA [1984] 1 WLR 634, the existence of another respectable practice does not itself establish negligence.
3. Following Bolitho v City and Hackney Health Authority [1998] AC 232, the court must decide the issue itself and must be satisfied that the supporting professional opinion is reasonable, responsible and capable of logical analysis. It must not substitute its own preference between two logically defensible clinical views.
4. The court considered the principles summarised in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61A. NICE Guideline 47 represented best evidence-based practice and classified the presentation as low risk, not no risk. Guidance was an important factor, but did not remove the clinician’s responsibility to exercise clinical judgment.
5. The proposed mandatory referral rule based on a triad of fever, headache and vomiting was unsupported by the guideline, the medical literature and the expert evidence. The defendant’s management, including symptomatic treatment and safety-netting advice, remained within the range of acceptable general practice.
6. On causation, even if referral had occurred, the balance of probabilities indicated that the child would have been reviewed and sent home without blood tests under the applicable guidance. The subsequent course would therefore materially have been the same.