Thursday, 12 October 2017

You say Bolitho, I say Bolitho

I have heard differences of opinion about how to pronounce the claimant's name in Bolitho v City and Hackney Health Authority [1998] AC 232, but not previously such a profound difference in interpretation of it as appears in the recent case of Palmer v Pourtsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB).

This was a cerebral palsy case in which the breach of duty was, ultimately, admitted, but the Claimant failed to prove causation at trial before Sir Robert Nelson.

Jane McNeil QC appeared for the Claimant, Katie Gollop QC for the Defendant.

Midwives had failed to call of obstetric attendance for an assisted delivery before 0850. Assisted delivery was achieved at 0900. The baby was born with neurological injuries. The question for the court was when delivery would have been achieved but for the negligence in failing to summon obstetric attendance earlier. It seems to have been agreed that delivery only 2 minutes earlier would have avoided the Claimant's injuries.

The Judge recorded at [50] that Defendant's Counsel: "contended that the Claimant must not only show what would in fact have happened but that the Defendant's employees were medically negligent in failing to ensure that it did."

The Court noted that in Bolitho Lord Browne-Wilkinson said, there were two questions for the trial judge on the issue of causation. Firstly, what the doctor would have done or authorised to be done if she had attended the patient and secondly if she would not have intubated would that have been negligent. The Bolam test, he said, had no relevance to the first of those questions but was central to the second (P240 B-G).

The Claimant's Counsel in Palmer submitted that the second Bolitho question only arises where the factual situation (i.e. what would have happened) involves some potential further negligence. That, she submitted did not arise in the present case due to the evidence given. 

The Judge rejected the Defendant's interpretation of Bolitho

[77] "It is only necessary to ask whether there is continuing or a secondary act of negligence, i.e. the second Bolitho question, if that has to be proved by the Claimant for the claim to succeed. Thus, in Bolitho the doctor was negligently late, but even if she had arrived on time she would not have intubated. Thus the question arose as to whether it would have been negligent not to have intubated. If however she would, had she arrived, successfully intubated the patient, the second Bolitho question would not have arisen, as it did not on the facts of Gouldsmith v Mid Staffordshire General Hospital NHS Trust [2007] EWCA Civ 397.

[78] "Lord Browne-Wilkinson in Bolitho makes it clear that the Bolam test has no relevance to the factual issue of what would have happened, and that alone may be determinative of the issue of causation (240 B-C)

[79] "Here, the second Bolam question does not in my judgment arise. The failure of the midwife to call for medical assistance soon enough was a continuing act of negligence and the only causation questions which arise are the factual questions in relation to whether the second on call registrar, if he had been called, would, on the balance of probabilities, have arrived in time to deliver Jade before 20:58"

Similarly, therefore in obstetric cases where the question is when a Caesarean section delivery would have been achieved had the decision been taken earlier, the first question is how long it would in fact have taken following a non-negligent decision to proceed. That is not a Bolam question. It is not a question of how long a non-negligent "decision to incision" period would have been, it is a question of how long it would have been from actual decision to actual incision. 

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