This is the second post commenting on the case. The first post deals with the facts of the case and the decision of the court. This post comments on the decision and considers the application of the Bolam and Bolitho tests.
Comment
Thomas Bradfield-Kay v Marcus Cope [2020] EHWC 1351 (QB)
The UK has an adversarial system of justice and central to this system is the right to challenge an opponent’s case. This is facilitated by leading witness evidence including expert witness evidence before an independent decision maker to assist it to come to a determination [7].
Expert witnesses are regarded as sui generis [8] and since the mid-sixteenth century have been accorded a special status by our courts [9]. They offer opinion evidence to the court based on their specialised knowledge as an exception to the exclusionary rules on hearsay and opinion evidence [10].
The justification is that this enables the court to come to an informed conclusion on matters they are asked to decide [11]. The expert is there to assist the court come to the right conclusion in the interest of justice but should not usurp the function of the court [12].
In National Justice Compania Naviera SA v Prudential Assurance Co. Ltd [13] (“The Ikarian Reefer”) Cresswell J. identified the key principles to be applied by the courts to test the validity of the expert evidence. These principles would have ensured regulation of expert witnesses but the courts were not consistent in enforcing them in practice [14].
Following the Woolf reforms in England the admissibility of expert evidence in civil cases is governed by the Civil Procedure Rules. The duties of an expert as set out in the Ikarian Reefer informed the rules [15]. The rules and pre-action protocols were designed to proactively prevent abuses by expert witnesses used in cases. Scotland does not have similar prescriptive rules however in Kennedy v Cordia (Services) LLP [16] the Supreme Court gave guidance on the use of expert evidence along similar lines.
The standard of care
Normally when considering the question of negligence, the standard is one of reasonable care [17], the standard of the reasonable man sometimes referred to as the man on the Clapham Omnibus [18]. As a general rule where a defender/defendant has acted in accordance with common practice this is accepted as strongly suggestive that his/her conduct is not negligent [19] although it is not conclusive. The court may find after analysis that the practice itself is negligent [20]. Neglect of duty normally does not cease by repetition to be neglect of duty [21].
Why do we have a professional practice test?
On one view Bolam test was developed by the English courts with an undue deference to the medical profession and as a matter of public policy with the deliberate intention of curtailing litigation.
Giesen [22] argued that in interpreting Bolam the law in Scotland and England was singularly deferential to the interests of the medical professional and correspondingly weak in the protection that it afforded to patients. In his opinion English judges had abandoned their constitutionally mandated role and this was not an inevitable consequence of the Bolam test but of the reluctance of English courts to set a truly objective standard of care.
He rightly argued that the test of liability should not be a descriptive summary of various widespread professional practices but the application of an objective, normative standard of care [23]. In his view the greatest progress to adequately vindicating the rights of patients has been made in jurisdictions where the judiciary have been willing to forgo the “outmoded parochialism of former times.”
Grubb [24] argued that in the UK there was judicial deference to the medical profession not seen with any other profession which it has been suggested is “based upon the common professional affinity of doctors and lawyers” and a fact that an allegation of professional negligence was seen to affect the doctor’s professional status and reputation. He also felt that the reluctance of the English courts to find a doctor negligent had its roots in policy considerations. The American litigation experience influenced some of the judiciary in interpretation of Bolam although the Pearson Commission had concluded that it was unlikely that the American problem would be repeated in the UK.
Professor Sappideen [25] in her excellent article said that the original Bolam test provided testimony to the power and influence of the medical profession in setting its own standards free from outside influence. In her view the Bolam test did not have any significant impact in reducing medical negligence litigation in the UK, and there was nothing to suggest it deterred young men from entering the profession or led to a withdrawal of medical services.
She felt Bolam “protected the medical profession against outside interference and confirmed its status as a self-regulating profession with power and influence.” She saw no reason why a profession should be accorded some special status. In Australia at common law a distinction is drawn between what is actually done “professional practice” and what ought to be done.
Miola [26] said that pre-Bolitho courts “had too often retreated in the face of the mere existence of medical evidence, confusing involvement with unjustified interference, resulting in what was seen as a surfeit of deference to the medical profession.
The professional practice test
Prior to the decisions in Hunter v Hanley [27]and Bolam medical negligence cases were tried by jury and the standard applied to medical professionals provided considerable scope for the jury to evaluate the medical care. Expert evidence on the custom and practice of the medical profession was relevant but not dispositive [28].
The Scottish test for negligence in Hunter v Hanley emanated from a direction to a civil jury which then went to appeal and has been approved by the House of Lords [29]. Lord President Clyde provided that the:
“[t]rue test for establishing negligence in diagnosis and treatment on the part of the doctor is whether he has been proven guilty of such failure as no doctor or ordinary skill would be guilty of if acting with ordinary care
The English test in Bolam two years later was also derived from a direction to a jury by McNair J. He approved the dicta of Lord President Clyde in Hunter v Hanley. In Bolam, McNair J recognised that in the realm of diagnosis and treatment there was ample scope for genuine differences of opinion and concluded that where there was a situation which involved the use of some special skill or competence a different standard of care should apply in law. The rationale for this view appeared to be because the man on the Clapham omnibus did not have any special skill. He said:
“where you get a situation, which involves the use of some special skill or competence, then the test is not the test of the man on the top of the Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have the skill.”
McNair J. then provided the test to be applied where there is evidence of differing professional approaches. In such instances:
“[a] doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art….a doctor is not negligent, if he is acting in accordance with [a particular] practice, merely because there is a body of opinion that takes a contrary view.”
There is an inherent ambiguity in the statement by McNair J but it was approved in a number of cases [30] and it was said to be applicable to any profession or calling that requires special skill, knowledge or experience [31]. However, implicit within this test is an expectation that professions will always follow reasonable practices.
It is arguable that in Bolam McNair J never intended to allow doctors to sanction a practice simply because it was repeated. In his charge to the jury he referred to a practice rightly accepted and endorsed by responsible opinion. He also said that it would be negligent if a practitioner continued the ‘obstinate and pigheaded use of outdated techniques’ proven to be contrary ‘to what is really substantially the whole of informed medical opinion.”
Interpreting Bolam
In Maynard v West Midlands Regional Health Authority [32] the trial judge analysed the expert evidence and found in favour of the plaintiff. The House of Lords found that the trial judge had erred as a matter of law in doing so and said that the judge’s preference for one body of distinguished opinion to another was not sufficient to establish negligence.
Lord Scarman in delivering the judgment of the House of Lords appeared to suggest that the view of a “responsible body of professional opinion” held in good faith could be a basis in law to protect a doctor of from a claim of negligence. He equated a competent body of professional opinion with distinguished or respectable in fact.
“a judge’s preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law.”
This approach was followed in De Freitas v O’Brien [33] even whereonly a small number of neurosurgeons considered that the procedure was safe.
In Hucks v Cole [34] there was some glimmer of hope when Sach’s LJ acknowledged that where there was a lacuna in professional practice and the risks could be easily and inexpensively avoided the court could enter into an analysis of the practice but this case was not reported at the time it was heard and was only reported many years later.
When interpreting Bolam Lord Denning MR had in mind the consequences of malpractice litigation in the USA and what he described as “colossal” awards of damages [35]. He was also concerned that litigation and a fear of being sued would deter persons from entering the profession and that doctors would start to practice defensive medicine. He said:
“Take heed of what happened in the United States…..The damages are colossal…Experienced practitioners are known to have refused to treat patients for fear of being accused of negligence. Young men are even deterred from entering the profession because of the risks involved. In the interests of all, we must avoid such consequences in England.”
In Hyde v Tameside Area Health Authority [36] Lord Denning MR again appeared to be concerned that medical malpractice cases would get out of hand as had happened in the USA. A deferential attitude to the medical profession is also seen in his summing up to the jury in Hatcher v Black [37] where he compared an action for negligence against a doctor as having a dagger plunged into his back.
In Marriot v West Midlands Health Authority [38] the Court of Appeal confirmed that a court was entitled to question whether an opinion was reasonably held following a risk analysis by the court. This approach has also been followed on other occasions by the Court of Appeal but there is a lack of consistency.
Comparative areas of law
In other areas of the law the English courts over the years not been content simply to accept evidence of practices as determinative. In Edward Wong Finance Co Ltd v Johnson, Stokes and Masters [39] the Privy Council held that a conveyancing practice widely followed in Hong Kong was negligent because there was an inherent risk in the practice and there was no need to take the risk even when virtually all other Solicitors followed the practice. This has also been applied to bankers [40] ships masters [41] and in personal injury actions [42].
In Australia there was a recognition, as should have been done in the UK that expert evidence should provide a factual basis for the application of legal standards The Australian courts appeared to recognise a failure by the English courts in applying the Bolam test.
In F v R [43] Bollen J. was of the view that the some of the cases in England had concentrated too heavily of the practices of the medical profession and recognised the important role of the court in critical analysis of expert evidence.
In Naxakis v Western General Hospital [44] the High court said that in cases involving diagnosis and treatment professional opinion expert professional opinion will “often have an influential, often a decisive role to play but that the determination of the legal standard of care was for the courts not the medical profession.
In F v R [45] King CJ recognised that professions may adopt unreasonable practices not because they serve the interests of the clients but because they protect the convenience of members of the profession. With this is in mind the court has a duty to scrutinise those practices to ensure that they accord with the standard of reasonableness demanded by the law.
He provided:
“[t]he ultimate question…is not whether the defendant’s conduct accords with the practices of the profession or some part of it, but whether it confirms to the standard of reasonable care demanded by the law. That is a question for the Court and the duty of deciding it cannot be delegated to any profession or group in the community”
Bollen J. was of the view that the some of the cases in England had concentrated too heavily of the practices of the medical profession and held:
“Expert evidence will assist the Court. But in the end, it is the Court which must say whether there is a duty owed and a breach of it. The Court will have been guided and assisted by the expert evidence. …..But the Court does not merely follow up expert evidence slavishly to a decision….If the Court did merely follow the path apparently pointed out by expert evidence with no critical consideration of it and the other evidence, it would abdicate its duty to decide, on the evidence, whether in law a duty existed and had not been discharged
In Canada, in Hajgato v London Health Association [46] Callaghan J stated that courts should strike down substandard approved practice when common sense dictates such a result. There was a recognition that the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional practices.
Bolitho
In Bolitho v City and Hackney Health Authority [47] the House of Lords had the opportunity to consider the application of the Bolam test. Bolitho turned on a point of causation, as it was accepted that the doctor should have attended and that had there been intubation the child would have survived. The causation issue was hypothetically what she would have done had she attended and that question was addressed applying the Bolam standard.
In Bolitho the House of Lords held that “the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis” and in particular in cases involving the weighing of risks and benefits the judge before accepting a body of opinion as responsible, reasonable or respectable would need to be satisfied that in forming their views “the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter” [48]
The court then qualified this and said it would only be in the rare case that the court would reject such opinion as not reasonable or responsible. Brazier and Miola argued that Bolitho rectified the misinterpretation of Bolam [49]. Whilst there may be some force in this argument Bolitho did not remove the professional practice test but simply required that for the body to be reasonable and responsible it must withstand logical analysis. On one view the court simply restored the position to the correct interpretation of the Bolam test and emphasised the role of the court in analysing the logic of the opinion advanced.
Comment on Thomas Bradfield-Kay v Marcus Cope
What is seen in this case is an example of the court exercising its proper judicial function in a clinical negligence case. For too many years the courts have focused on the qualifications of a particular expert who advances an opinion rather an analysis of the practice of the profession.
Why would the practice of any group of individuals be seen as a basis in law for avoiding liability without further analysis?
For many years the English courts have consistently failed to recognise that the practice of the profession must be subordinate to the function of the court to determine the legal standard of care. In interpreting the Bolam test the courts have appeared to focus on compliance or non- compliance with practices accepted by the profession without any true consideration or analysis of whether that practice was logical or responsible.
Determination of the legal duty was abrogated to the medical profession. The test provided a defence to those who lag behind the times. The courts also placed undue weight on the professional standing of the expert in deciding whether the practice had a logical or reasonable basis.
The Bolam test was interpreted to permit a practice of the profession to be determinative without analysis and if a suitably qualified expert said this practice was followed this prevented a claimant being successful in the action. This occurred even in situations where the expert said he did not follow the practice himself/herself.
In this case the defendant’s expert was a past president of the British Hip Society and had published widely on hip arthroplasty. On paper he was perhaps best able to speak to the practice of the profession but what he should have assisted the court with was the logic and reasonableness of the practice. The fact that some surgeons did not seek to avoid prominence of the acetabular component did not of itself make it a logical or reasonable thing to do and the court recognised that and the absence of evidence on that fact.
The expert’s duty to the court is to provide the court with expertise to understand and analyse the reasonableness and logic of the practice not to usurp the function of the court. As has been recognised in Australia the ultimate question is not whether the defendant’s conduct accords with the practices of the profession or some part of it, but whether it confirms to the standard of reasonable care demanded by the law.
The Bolam test could have been interpreted by the UK courts even pre- Bolitho to suggest that there required to be an analysis of whether the common practice was “properly” and “logically” accepted by the profession as was done with other professionals.
In Bolitho Lord Browne-Wilkinson did no more than restore Bolam to what should have been the original interpretation. The court failed patients in Bolitho when they qualified the test by providing that it would ‘very seldom’ be right for a judge to reach a conclusion that view genuinely held by competent experts was unreasonable.
Respect for the medical profession does not permit a court to abrogate their role to vindicate patients’ rights. In handing determination of the issue of negligence over to the standards set by the profession the courts abrogated an important constitutional function to protect the rights of the individual. Doctors should be fully accountable to their patients. It is only when the assessment of medical negligence is determined by our courts objectively and as a matter of law that the medical profession is prevented from legislating itself out of liability.
[7] Davie v Magistrates of Edinburgh 1953 SC 34,40; Technip France SA’s Patent [2004] EWCA Civ 381
[8] Silverlock [1894] 2 QB 766; Robb 1991) 93 Cr.App. R.161; Bonython [1984] 38 SASR 45; CPR 35.2
[9] Buckley v Rice Thomas (1554 Plowd 118, [124]; Folkes v Chadd (1872) 3 Doug KB 157, [159]
[10] Hollington v Hewthorn & Co Ltd [1943] KB 587, at 595, CA; Assessor for Lothian Region v Wilson, 1979 SC 341 at 349; R v Turner, [1975] QB 834 at 841; McTear v Imperial Tobacco, 2005 2 SC 1 para 5.7
[11] Lawton LJ in Turner [1975] QB 834, 841; Lord President Cooper, Davie v Magistrates of Edinburgh 1953 SC. 34, 40; JA Joloweicz, On Civil Procedure, (Cambridge University Press, 2000) 225
[12] Pora v R [2015] UKPC 9; [2016] 1 Cr. App.R.3; R v Allad [2014] EWCA Crim 421
[13] [1993] 2 Lloyd’s Rep 68 at 81-82
[14] (Re J (A Minor) [1991] FCR 193 and re AB (Child Abuse: Expert Witnesses) [1995] 1 F.L.R 181; Cala Homes (South) Limited v Alfred McAlpine Homes East Limited [1995] F.S.R. 818; In Imperial Chemicals Industries v Merit Merrell Technology [2018] EWHC 1577 (TCC) Para 237; R v Bowman [2006] EWCA Crim 417; Myers [2016] AC 314); Gage LJ in R v Harris & Others [2005] EWCA Crim 1980 [273] [271]
[15] (Re J (A Minor) [1991] FCR 193 and re AB (Child Abuse: Expert Witnesses) [1995] 1 F.L.R 181; Cala Homes (South) Limited v Alfred McAlpine Homes East Limited [1995] F.S.R. 818; In Imperial Chemicals Industries v Merit Merrell Technology [2018] EWHC 1577 (TCC) Para 237; R v Bowman [2006] EWCA Crim 417; Myers [2016] AC 314); Gage LJ in R v Harris & Others [2005] EWCA Crim 1980 [273] [271]
[16] [2016] UKSC 6
[17] Blyth v Birmingham Waterworks Co (1856) 11 Exch.781 [ 784]
[18] Hall v Brooklands Auto Racing Club [1933] 1 K.B. 205, [224]; Glasgow Corporation v Muir [1943] AC 448, [457;] London Passenger Transport Board v Upson [1949] AC 155 [ 173]
[19] Morton v William Dixon Ltd 1909 S.C. 807 [809]; Morris v West Hartlepool Steam Navigation Co. Ltd A.C. 552, [579]; Marshall v Lindley C.C. [1935] 1 K.B. 516, 540; White v Turner, 120 D.L.R. 3d 269, 279 (1981)
[20] General Cleaning Contractors v Christmas [1953] A.C. 180, 193
[21] Bank of Montreal v Dominion Gresham Guarantee and Casualty Co, [1930] A.C. 659 [666]
[22] Vindicating Patient’s Rights: A Comparative perspective Journal of Contemporary Health Law and Policy Vol 9 273, (1993)
[23] Medical Malpractice and the Judicial Function in Comparative Perspective, Medical Law International, 1993, Vol 1 [3-16] ,[6]
[24] A Survey of Medical Malpractice Law in England: Crisis? What Crisis? J. Contemp Health Law & Policy (1985) 75-114 [113]
[25] Sappideen, Carolyn, Bolam in Australia-More Bark than Bite? UNSW Law Journal Volume 33(2) 386
[26] Miola J. Bye Bye Bolitho? The curious case of the Medical Innovation Bill, Medical Law International 2015, Vol.15 (2-3) 124-154, [142]
[27] 1955 S.C. 200; 1955 SLT 213
[28] Rich v Peirpoint (1862) 176 ER 18-19; Lanphier v Phipos (1838) 8 C & P 475 at 479; 173 ER 581 [583 ] Tindal CJ; Greaves & Co (Contractors) Ltd v Baynham Meikle and Partners [1975] 1 W.L.R. 1095 [110] Lord Denning MR; R v Bateman (1925) 94 LJKB 791 [794]per Lord Hewart CJ
[29] Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634 [638]; Sidaway v Bethlem Royal Hospital Governors [1985] A.C. 871 [879]
[30] Whitehouse v Jordan [1980] 1 All E.R. 650; Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871
[31] Gold v Haringey Health Authority [1988] Q.B. 481 [489]; Whitehouse v Jordan [1981] 1 WLR 246, [258]
[32] [1984] 1 W.L.R. 634 (H.L)
[33] [1993] 4 Med. L.R. 281
[34] [1993] 4 Med LR 393 at 397
[35] [1980] 1 All E.R. 650 at 658
[36] (1981) reported at (1986) 2 P.N. 26 at 29
[37] The Times, 2 July 1954
[38] [1999] Lloyd’s Rep Med 23, CA
[39] [1984] AC 1296
[40] Lloyd’s Bank v Savoy & Co., [1933] A.C., 201, [203]
[41] Re The Herald of Free Enterprise: Appeal by Captain Lewry, The Independent, 18 December 1987
[42] Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 145; Cavanagh v Ulster Weaving Co Ltd [1960] AC 14
[43] F v R (1982) 33 S.A.S.R 189 SC (S Aus) 201
[44] Naxakis v Western General Hospital (1999) 197 CLR 479, [487]
[45] (1982) 33 S.A.S.R 189 SC (S Aus)
[46] (1983) 44 O.R. (2d) 264 CA (Ont)
[47] [1998] A.C. 232
[48] [1998] 1 AC 232 [241-242]
[49] Brazier, M & Miola, J Bye Bye Bolam: A Medical Litigation Revolution? (2000) 8 Med L Rev 85, [86]
