A review of the test for breach of duty in clinical negligence.
First published in the June 2018 Avma Newsletter.
BOLAM IS DEAD. LONG LIVE BOLAM !
Dr Simon Fox QC
No5 Chambers and Exchange Chambers
As a doctor transferring from medicine to law 25 years ago, I was struck by the illogicality of the Bolam test, in that it seemed to me that it couldn’t logically be applied to many circumstances of medical negligence.
The most obvious to me, then and now, is an allegation that a surgeon negligently injured the bowel during routine abdominal surgery. It always struck me that it was nonsensical to consider whether this would be a “practice accepted as proper by a reasonable and responsible body of surgeons”– the classic Bolam test. No surgeon would consider an accidental iatrogenic bowel injury to be an acceptable way in which to carry out the operation. The injury was accidental, and to me the proper test should be whether the surgeon exercised reasonable skill and care, as it would be in any case of an accident occurring through negligence.
But the Bolam test isthe test for medical negligence and has been routinely rolled out for all types of case for decades. I liked John-Paul Swoboda’s description of this process as “the deep ossification of the Bolam test in the common law” in his excellent recent article on Bolam (JPIL 2018 issue 1, p.14).
However, there is some recent judicial support for my long held view that we are often applying the wrong test if we simply apply Bolam each time.
Montgomery replaces Bolam, but is it limited to consent ?
Montgomery has toppled Bolam from its long held position as the test for breach in consent cases. But is its application limited to consent cases? It would be wrong in my view to think this is the case, as illustrated by the recent case of Webster v Burton Hospitals  EWCA Civ 62.
In Webster the Court of Appeal considered the application of the Montgomery test. Webster was a cerebral palsy claim in which there was an admitted negligent failure to carry out further scanning in response to poor fetal growth, asymmetry and polyhydramnios at an antenatal scan. On the Bolitho causation issue of what the Defendant’s staff would or should have done if they had repeated the scan, the Claimant alleged that the results of the further scan would or should have led to the obstetrician advising the Claimant’s mother of the alternative of an earlier delivery. She would have opted for this and the Claimant would have been born intact before his brain injury occurred.
The Defendant asserted that their obstetrician would not have advised of the alternative of earlier delivery, but would have continued the pregnancy and this would not have been negligent. The Claimant’s injury would still have occurred. At first instance – before Montgomery – the Judge found for the Defendant.
The appeal was heard after Montgomery and the Claimant won; using the Montgomery test his mother should have been advised of the alternative of an earlier delivery and the complications and risks and uncertainties of different treatments. She would have opted for early delivery if she had been so advised, avoiding his brain injury.
However, Webster was not what we normally think of as a consent case – ie it was not a consent for surgery case. In Webster the allegation was of a negligent failure to advise in antenatal clinic of the options for further management of pregnancy. The Court of Appeal still applied Montgomery as the test and found for the Claimant.
We should therefore in my view be considering Montgomery as the test for negligence in cases on advice, not just consent to surgery cases.
Is Bolam still the correct test for all other types of case, not involving consent or advice ?
In my view the short answer is no.
The recent case of Muller v Kings College  EWHC 128 (QB) concerned an allegation of negligent interpretation of a histology slide. Defence counsel submitted that the classic Bolam test applied to such circumstances. Mr Justice Kerr rejected that submission and made the distinction between what he called a “pure diagnosis” case and a “pure treatment” case. He considered that the classic Bolam test of a reasonable and responsible body of doctors applied to “pure treatment” cases – such as a decision in the obstetric management of a labour in the case of C v North Cumbria  EWHC 61 (QB) – but not to a “pure diagnosis” case such as misinterpretation of a histology slide in the case of Muller.
He considered that the correct test in a “pure diagnosis” case such as interpretation of histology was firstly to establish as a matter of fact what was present on the slide and secondly to decide whether in missing these features the doctor had exercised reasonable skill and care. The Judge found support for this approach in the earlier Court of Appeal decision in Penney v East Kent  Lloyd’s Rep.Med.41 where the same test was applied in a similar histological interpretation case.
A further recent case of XXX v Kings  EWHC 646 QB demonstrates that the Court will also adopt the same test of reasonable skill and care in cases of ultrasound scan interpretation. The Judge in that case also found support in an earlier Court of Appeal ultrasound scan case – Lillywhite v UCL  EWCA Civ 1466. In both cases the Court addressed breach on the basis of what was present as a matter of fact and then considered whether this could have been missed with reasonable skill and care on the part of the doctor, not the classic Bolam test of a reasonable responsible body. The Court of Appeal in the ultrasound scan case of Lillywhite referred to the same test in the histology Court of Appeal case of Penney in their reasoning. It is clear therefore that the Courts are treating histology and ultrasound scan cases similarly in terms of the test used for breach – and it is not classic Bolam.
Mr Justice Kerr in Muller has therefore highlighted and detailed an important distinction in the test for breach, which is in fact to be found in in earlier cases at both first instance and the Court of Appeal.
In my view we should add to his “pure diagnosis” category, cases where doctors make errors during procedures – for example the surgeon who injures the bowel during routine abdominal surgery referred to at the start of this article. In my view in all of these situations the classic Bolam test is inappropriate and the appropriate test is to whether the doctor exercised reasonable skill and care.
By the same taken in my view we should add to his “pure treatment” category, cases where appropriate assessment and investigation are the issue, for example whether to carry out a particular diagnostic test, to be decided by the classic Bolam test.
So which test for which case ?
Broadly speaking my approach is –
“Pure diagnosis” cases and surgical/technical errors – reasonable skill and care.
“Pure treatment” cases and assessment/investigation cases – classic Bolam.
Consent and advice cases – Montgomery.
So it might be more accurate to say – Bolam is dead for some cases, but lives on in others, at least for now.
What does this mean in practice ?
Firstly, I think it means that we have to stop and consider right at the start of any case “What is this case about and which test for breach applies?” My summary above risks oversimplifying that process. In some cases this will be obvious. In others less so. It is also something to involve Counsel on. I appreciate that the solicitors amongst you will say “you would say that, wouldn’t you” but if your case gets to trial and your expert is addressing the wrong test, it will be Counsel who has to explain why.
Secondly, I think we need to be much better at setting out the correct test that we ask our experts to address when we instruct them.
Thirdly, I think it is best practice to ask the expert to set out the test which they have been asked to address at the start of their report. This will mean that whenever the expert describes something as a failure in the narrative of their report, it is clear what they mean by that term. It also avoids that embarrassing moment in cross examination when an expert is asked to explain what they mean by a failure – and they stun the Court with some illogical and embarrassing mishmash of Bolam. My favourite example of an expert’s take on Bolam is “It is my opinion that the failure to manage the patient in this way could be considered negligent by a body of experts” !
I have been criticised by an opponent at trial for asking an expert to include the correct wording of the Bolam test in their report, on the basis that this taints the independence of the expert’s opinion and comes close to a breach on my part of the CPR 35 Guidance for the Instruction of Experts in. The trial Judge dismissed that criticism.
It helps no one in my view, especially the trial Judge, if what the experts mean by negligence is unclear. But for the experts to be clear as to what they mean by negligence, us lawyers need to be clear first.