Bolitho v City and Hackney Health Authority (1997)

The Case:

In this case the claimant claimed that the defendant had been negligent. 

Patrick Bolitho was admitted to hospital with breathing difficulties. They consequently suffered cardiac arrest which lead to brain damage and eventually to the death of the patient.

The on duty paediatric registrar did not see Patrick Bolitho but claims that if they did they would not have provided intubation which was deemed the only treatment which could have possibly saved his life. 

The Verdict

The expert witnesses brought before the court were not in agreement as to whether the paediatric registrar should have provided intubation and whether her failure to do so was reasonable. The House of Lords ruled that the registrar had not breached her duty of care to the patient. 

Lord Browne-Wilkinson, however, acknowledged the circumstances which would have lead to this being a case of negligence, even in spite of the expert witnesses being in agreement:

“It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct fails to be assessed.”

In other words the only circumstance in which the court or a judge could determine a case of negligence in spite of expert witnesses agreeing that the defendant had performed in a reasonable way is if that standard of care appeared illogical. 

The Bolam + Bolitho Test 

This is a variant on the Bolam test and is arguably more robust. It is a two stage test which works as follows:

1. The court must judge whether the clinician has acted in accordance with expert medical opinion or to the standard of care expected. If the answer to this is no - then based on the traditional Bolam Test they are deemed to have been negligent. 

2. If they did act in accordance with expert medical opinion then it must also be considered whether the expert opinion is capable or not of “withstanding logical analysis”. If the expert opinion appears illogical then the clinician could be deemed to have been negligent even if they have acted in accordance with it.