Bolitho v. City and Hackney Health Authority
Encyclopedia
Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 is an important English tort law
case, on the standard of care required by medical specialists. It follows the Bolam test
for professional negligence, and addresses the interaction with the concept of causation.
held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession.
However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case".
On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided.
, established by the Queen's Bench Division in a 1957 case Bolam v. Friern Hospital Management Committee. According to that test, which has been criticised by academic commentators, a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion. However, the Court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare".
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
case, on the standard of care required by medical specialists. It follows the Bolam test
Bolam Test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals : the Bolam test...
for professional negligence, and addresses the interaction with the concept of causation.
Facts
The plaintiff's son was admitted into the hospital for respiratory difficulties and was placed under the care of Doctor Horn. Doctor Horn did not see the patient when the nurse had called her, and on a second occasion, the doctor delegated the care to another doctor, her junior, Doctor Rodger. This doctor also did not see the plaintiff's son. This led to further complications in the patient and then severe brain damage from which he eventually died. The defendants argued based on Bolam v Friern Hospital Management Committee [1957] that their decision not to have intubated him earlier could be confirmed by a reliable and respectable body of opinion.Judgment
The House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession.
However, Lord Browne-Wilkinson held that the court would hold a practice that was in conformity with a sound body of expert opinion to be negligent only in "a rare case".
On the facts, it was decided that not intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert opinion on the matter was divided.
Commentary
The House of Lords decision in Bolitho seems to be a departure from the old Bolam testBolam Test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals : the Bolam test...
, established by the Queen's Bench Division in a 1957 case Bolam v. Friern Hospital Management Committee. According to that test, which has been criticised by academic commentators, a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion. However, the Court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare".