Article

Experts overruled

Can a hospital doctor lose a case even if both parties medical experts consider that the treatment given was not negligent? In the recent case of Burne v A (2006) the Court of Appeal answered the question in the affirmative in upholding a robust interpretation of the Bolitho case. Readers will recall that the seminal case on breach of duty is Bolam v Friern Hospital Management Committee (1956) when it was held that the standard of treatment is unacceptable if it would not be supported by a reasonable body of medical practitioners. In Bolitho v City and Hackney Health Authority (1977) it was further held that the
standard of treatment also had to be objectively reasonable. In other words it was no defence to show that a particular course of treatment was in common practice if it was illogical.

Facts

The defendant was the general practitioner of a child who suffered from a hydrocephalic condition requiring a ventriculo-peritoneal shunt to drain excess fluid from his brain. The shunt was known to have become blocked on two occasions. On the day in question the claimant began vomiting and complained of a headache. His mother telephoned the surgery and spoke to the defendant explaining that her son had thrown up a lot of phlegm. Without seeing the patient, and without asking any specific questions, the defendant diagnosed an upper respiratory tract infection. The following day the claimant deteriorated and it was later found that the shunt had blocked causing heart failure and brain damage. The crux of the case was whether the doctor took an adequate history and ought to have ascertained that the claimant's symptoms might indicate a blocked shunt which would have led to an urgent referral to hospital. In a joint report the parties general practitioner experts agreed it was acceptable practice for a GP to ask only "open" (non-leading) questions before making a diagnosis. They further agreed that general practitioners normally deliberately avoid asking leading questions so as not to influence the patient's history.

Notwithstanding the view of the experts the trial judge found that, in view of the claimant's symptoms and history, there was no reasonable or logical basis for limiting the enquiry to open questions and therefore gave judgment for the claimant. He commented that the case did not involve an ordinary patient and there should have been a low threshold for seeing him.

The appeal

Lord Justice Sedley said:
"It offends ones sense of justice to be obliged to accept the unacceptable. I can entirely understand why Judge Harris thought it unacceptable that the culture of general medical practice should be so suspicious of self serving reportage that it encouraged doctors to ask nothing specific even where the caller was the mother of a child whom the doctor knew to have a shunt in place and the child might have
symptoms caused by a blockage".

The court went on to state that the trial judge's understanding of the Bolitho principle was correct but he was wrong not to have first asked the experts why responsible medical practitioners took the view that they did. If the judge was minded to reject the views of the experts as illogical he should have put the point to the parties and to have acted only on their considered responses.

The case was, therefore, referred for a retrial. The court also criticised the earlier procedural direction for breach of duty to be tried as a preliminary issue and ruled that causation should also be dealt with at the same time.

Comment

As the court found that a retrial was necessary it did not rule on the application of the Bolitho principle to the facts of A's case. However, the case clearly establishes that it is open to a court to make a ruling of negligence even if the treating doctor followed common practice and both parties medical experts considered that the treatment did not fall below an acceptable standard.

The judgment is likely to lead to a renewed emphasis on practitioners considering whether the approach in a particular case was logical. The Court of Appeal expressed considerable sympathy with the view of the trial judge that, as a matter of common sense, if the general practitioner knew that the patient had a shunt he should have given the matter of a potential blockage careful consideration.

It is slightly surprising that this case reached court as the defendant was weak on the facts to the extent that he made no record of the claimant's mother telling him about vomiting. The trial judge subsequently found that she had imparted this information. The court very unusually stated that it was to be hoped that ADR (alternative dispute resolution) would see an end to "this anxious and distressing case" on the basis that both sides had powerful arguments. It was very strongly hinted that the parties should
compromise. The court expressed sympathy over the length of the litigation.

For further enquiries please contact Graham Bell (view full profile) on 01892 701358 or email graham.bell@ts-p.co.uk.

You will require the Adobe Acrobat Reader to read PDF files, this is free to download if you do not already have it. Get Adobe Reader