In this article Simon Fox QC reviews the Bolam test for breach of duty in clinical negligence in the light of recent case law and asks – is it still the test for breach?
Since I transferred from medicine to law 25 years ago, I have always thought that the Bolam test cannot logically apply to many scenarios of alleged clinical negligence. The scenario which has always struck me is the iatrogenic surgical bowel injury; a surgeon inadvertently and unknowingly perforates the bowel with a surgical instrument during a routine and otherwise uncomplicated laparoscopy. Can we logically apply Bolam as the test of negligence to that?
I have never thought so.
After a long wait I find some judicial support for my concern from Kerr J in Muller v Kings College 2017 EWHC 128 QB.
Before we go any further in a discussion about Bolam, it is important to be very clear exactly what we mean by the use of the term “the Bolam test”.
McNair J actually described a number of tests for a doctor’s negligence in Bolam v Friern Hospital Management Committee 1957 1 WLR 582.
Liverpool Victoria Insurance Company Limited v Dr Asef Zafar  EWCA 392 (Civ) -and- George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019
Dr Zafar ran his own medico-legal company, producing over 500 expert reports a year. In February 2012, he examined Mr Iqbal 11 weeks after a road traffic accident. The other driver involved was insured by Liverpool Victoria Insurance Company Limited (‘LVI’). Dr Zafar concluded that having taken analgesia immediately after the accident, Mr Iqbal had made a complete recovery within one week of the accident. Dr Zafar signed this report with a statement of truth, in accordance with CPR Part 35.
The instructing solicitor then asked Dr Zafar if he could amend the report to reflect that Mr Iqbal had ongoing moderate to severe pain in his neck and shoulders. He requested Dr Zafar review his examination notes, and in light of this ongoing pain amend his report to the effect that Mr Iqbal would recover over the next six to eight months. Without any further re-examination of Mr Iqbal, Dr Zafar obliged. Although the content of the expert report changed, the report date remained the same, as did the statement of truth.
The short answer is no but feel free to keep reading.
In Pomphrey v. Secretary of State for Health the Claimant’s claim for damages in respect of the non-negligent complications of spinal surgery failed. His argument was that for a period of 10 months prior to surgery he had symptoms of cauda equina syndrome and should have had decompressive surgery earlier. Had he done so he would probably have avoided the dural tear which he sustained when his operation eventually took place. HHJ Cotter QC rejected the Claimant’s argument, preferring the evidence of Richard Stacey to Nick Todd. He found that the Claimant had been suffering from intermittent spinal claudication caused by spinal stenosis, not CES, and that there was no requirement for earlier surgery.
R (Chidlow) v HM Coroner for Blackpool and Fylde & Others  EWHC 581 (Admin)
Human bodies being such complex things it is unsurprising medical causation is often extremely complicated. Legal causation of medical injury is a minefield for clinical negligence lawyers to navigate: “indivisible injuries”, “multifactorial causation”, “material contribution”, “loss of a chance”etc.
But there is good news for all who must negotiate these causation booby-traps. It comes in the form of Mr Justice Pepperall’s judgment – arising out of an inquest – about whether a jury could reach a safe conclusion on the causative link between delay in treatment and death where the medical cause of death is unascertained.
It’s a brilliant exposition of two fundamental points on causation:
Causation is more than a matter of medical statistics - even where survivors are a majority category.
There is a difference between identifying what caused death and whether life could have been saved with earlier medical attention.
Jonathan Holl-Allen QC acted for the successful Claimant in this claim against a Consultant Neurologist who Yip J concluded had failed to discharge his duty when advising in respect of medication to a suspected Parkinson’s Disease patient.
The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board  AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust  EWCA Civ 1307 and Khan v MNX  EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.
Angus Moon QC successfully defended this psychiatric negligence claim (unreported, County Court at Sheffield, 9 January 2019).
The Claimant – a Consultant Radiologist – jumped from a balcony in an apparent suicide attempt and sustained serious injuries. He is now confined to a wheelchair. He alleged being let down by a number of psychiatric practitioners who, he said, had failed to admit him to hospital when he should have been admitted in light of his psychiatric state. His Honour Judge Mark Gargan dismissed the claim and found for the Defendant.
The decision serves as a reminder of the factors that are likely to sway judges when assessing lay evidence.
The Court of Appeal in XX v Whittington Hospital NHS Trust  EWCA Civ 2832 has overturned the High Court’s decision ( EWHC 2318 (QB)) by awarding damages to an infertile claimant for the costs of commercial surrogacy in California.
The first instance decision
In a previous blog post from September 2017 entitled ‘Surrogacy: The Birth of a New Head of Loss’, I discussed the first instance judgment in XX. Following the Trust’s admission that its failures led to Ms X’s infertility, Sir Robert Nelson awarded £74,000 to Ms X for the costs of UK-based surrogacy using her own eggs but not those of a donor. Claire Watson represented the Claimant at first instance.
Whilst the High Court’s decision was significant – this was the first case in which damages for the costs of UK surrogacy had been awarded – it was not the decision that Ms X wanted. She appealed to the Court of Appeal in order to recover the costs of Californian commercial surrogacy. The one-and-a-half-day hearing took place in early November and judgment was handed down on 19 December 2018. On appeal, Claire was led by Christopher Johnston QC.
Commercial surrogacy arrangements are lawful and binding in California, which has a well-established system. In contrast, only non-commercial surrogacy is permitted in the UK, and all surrogacy arrangements are unenforceable. The Law Commission has noted that there are ‘significant problems’ with the Surrogacy Arrangements Act 1985 and it aims to publish a consultation paper on law reform by spring 2019.
When is a doctor responsible for losses suffered after they have given bad advice? According to the Court of Appeal, if the loss is “coincidental”, it’s not recoverable.
On 23rd November 2018 the Court of Appeal handed down judgment in the case of MNX v Khan  in which it considered the extent to which the limits on the scope of duty imposed by “SAAMCO” South Australian Asset Management Corporation v York Montague Ltd  AC 191, applied in clinical negligence cases. In SAAMCO Lord Hoffman gave the famous example of a doctor, who negligently advised a mountaineer that their knee was fit to go climbing, not being liable for the consequences of the mountaineer being injured in an avalanche, even if but for the negligence they would not have gone up the mountain and so would have avoided the avalanche. On the facts of MNX, the Defendant GP negligently failed to advise the Claimant that she was a carrier of the haemophilia gene, and as a result when she fell pregnant she did not undergo tests to ascertain whether her child would have haemophilia. It was accepted by the Defendant that if the Claimant had been given the appropriate advice, she would have undergone those tests and would have terminated the pregnancy. The Claimant gave birth to a child suffering from haemophilia but also with severe autism. The issue for the Court was whether or not the costs associated with the autism fell outside the scope of the Defendant’s duty such that they were not recoverable.
This is the clear takeaway from Whipple J’s powerfully reasoned judgment in YAH v. Medway Foundation Trust, judgment 5th November 2018. The facts are typical of many cerebral palsy cases. The Claimant’s daughter was born after a negligent delay in intervention in the face of signs of fetal distress. The Claimant suffered psychiatric injury. In the joint statement the psychiatrists stated:
“We agreed that a number of factors had contributed to YAH having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.”
The Defendant Trust argued that a) the Claimant was a secondary victim not a primary victim; b) whether a primary or secondary victim she could only recover if her injury had been caused by shock.
On 10 October 2018, the important Supreme Court judgment in Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent)  UKSC 50 laid to rest any suggestion that non-medical hospital staff do not owe a duty of care to patients.
On the facts, the Appellant was wrongly advised by an A&E receptionist that he would have to wait for 4-5 hours to see a doctor. In fact, he had a head injury and would have been triaged by a triage nurse within 30 minutes. In the event, he felt too unwell to wait for 4-5 hours, left the hospital and suffered a collapse, leading ultimately to a severe and disabling brain hemiplegia. The trial judge found that if he had been told that he would be triaged within 30 minutes, he would have remained in hospital, would have suffered his collapse in hospital and would have made a full or near-full recovery.
The duty of care owed by a receptionist in A&E was characterised as follows:
“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”
The Court made clear that “the particular role performed by the individual concerned” will be likely to have an important bearing on the questions of duty of care and breach.