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 [2019] EWCA 392 (Civ) and George Eliot Hospital NHS Trust v Elder (2019), QBD, 5.4.2019

Introduction

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 [2019] 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.

The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board[2015] AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust[2018] EWCA Civ 1307 and Khan v MNX[2018] EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.