Sullivan v Guy's and St Thomas' NHS Foundation Trust

In assessing clinical negligence by the standards applicable at the time, the court must determine whether the treatment was supported by a responsible body of professional opinion and whether that opinion withstands logical scrutiny. A claimant does not establish breach merely by showing that other practitioners would have adopted a different approach. Where professional practice is divided and no established consensus identifies the defendant’s chosen treatment as too risky, a clinically experienced practitioner may reasonably balance competing risks using professional judgment. The court must assess the evidence available at the material date. Subsequent evidence may provide limited support but cannot itself establish negligence retrospectively.

The claim concerned brain damage suffered by Aiden Sullivan following a Hemi-Fontan cardiac operation in August 1998. The operation was performed under deep hypothermic circulatory arrest, with the patient cooled to 24°C and circulation arrested for 26 minutes.

The claimant alleged that accepted practice required cooling to approximately 18°C for an operation expected to involve about 25 minutes of circulatory arrest. The defendant argued that practice was variable, the underlying evidence was uncertain, and the surgeon’s approach was supported by his experience and responsible professional opinion. The issues were whether breach of duty and causation had been established.

1. Claim dismissed. The claimant failed to establish breach of duty. Causation was considered in the alternative.
2. The applicable approach was that in Bolam v Friern Hospital Management Committee [1957] WLR 582, as explained in Bolitho v City and Hackney HA [1998] AC 323. The question was whether the chosen practice was supported by responsible professional opinion and was logically defensible.
3. There was no established consensus in 1998 that cooling an infant to 24°C for approximately 25 minutes of circulatory arrest created an unacceptable risk of neurological injury. The textbooks and literature showed substantial variation in practice and acknowledged that the evidence did not permit a rigorously derived relationship between temperature and safe arrest duration.
4. The surgeon was entitled to take account of his own clinical experience and to balance the neurological risks of circulatory arrest against the risks associated with deeper hypothermia and prolonged cardiopulmonary bypass. The fact that other surgeons might have selected a lower temperature did not make the chosen practice negligent.
5. The surgeon’s series of earlier cases provided relevant support for the conclusion that his practice was within acceptable limits, although it did not prove that the procedure was safe. The court accepted that the practice was supported by responsible opinion and was logically defensible.
6. On causation, the court would have found that the brain damage was probably caused during the 26-minute period of circulatory arrest. It could not, however, identify when irreversible damage occurred within that period or establish that it occurred during any negligently extended part of it.