Bradfield-Kay v Cope

In clinical negligence, compliance with a practice accepted by a responsible body of medical opinion does not automatically establish reasonable care. The court must examine whether that opinion has a logical basis, including whether the experts have addressed comparative risks and benefits. A surgeon may therefore be negligent where a recognised and avoidable risk could readily have been prevented, and no sound reason supports the contrary practice. The court also applied ordinary principles of breach to the selection of a prosthetic component: the choice was negligent because it resulted from an avoidable misunderstanding of the contralateral component, not because that component was inherently unsuitable.

The claimant brought a clinical negligence claim against an orthopaedic surgeon concerning a left total hip replacement performed on 18 December 2009 and a consultation on 9 August 2010. He alleged that the acetabular component was left prominent, that an incorrect femoral component was used, and that reported groin pain was not recorded or investigated.

The trial was confined to breach of duty. The court considered expert evidence about accepted practice in hip arthroplasty, the logical basis of competing practices, the selection of the femoral component, and the reliability of the parties’ accounts of the later consultation.

1. Acetabular component. The court applied the principles in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583 and Bolitho v City and Hackney HA [1998] AC 232. A practice relied upon under the Bolam principle must have a logical basis. The court must consider whether the experts have directed their minds to comparative risks and benefits and reached a defensible conclusion.
2. There was a responsible body of surgeons who considered that the acetabular component should, so far as possible, be positioned so that it did not interfere with the iliopsoas tendon. The risk was recognised and could readily have been checked by visualisation, palpation or running an instrument around the acetabular rim. There was no anatomical or surgical necessity to leave the component prominent, and no logical basis had been shown for accepting that risk. The allegations concerning the prominent component were therefore made out.
3. Femoral component. The use of a KA8 component was not, in itself, a breach of duty. The breach lay in choosing it because of an avoidable misunderstanding about the size and type of component used on the right side. Had the defendant checked the operation records properly, he would have appreciated the materially different offset and considered better alignment and a larger broach. That allegation was made out.
4. August 2010 consultation. The claimant failed to establish that he had complained of persistent groin and thigh pain at the consultation. The contemporaneous letter accurately recorded the consultation. The defendant could not be criticised for failing to investigate a complaint that had not been made. That allegation was rejected.
5. The court accordingly found the allegations at paragraph 48(1)(i)–(iv) of the Particulars of Claim established, but rejected paragraph 48(2). The issue of loss arising from the femoral-component breach remained for determination.