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In a recent clinical negligence case a claimant brought an action for damages following injuries sustained at birth, suggesting the midwife should have called for medical assistance sooner. Alison Appelboam-Meadows, partner at Penningtons Manches LLP, says although this case is inherently fact-specific, it provides some illuminating insights regarding the Bolitho case and the need to ensure experts are fully aware of the factual evidence provided.
In cases concerning omissions of treatment—in this case the failure (as found by the judge) to call the second on call Registrar early enough or, in fact, at all, and hence his failure to attend—it is necessary for the court to consider the
hypothetical situation that would have applied but for that omission, as per the case of Bolitho v City and Hackney Health Authority  AC 232,
 4 All ER 771.
The Bolitho case involved a two part analysis:
First, if the omission had not occurred, what would have happened (in that case, what would the doctor have done if she had attended the patient?) and, second, whether the action or inaction the doctor said that they would have taken was negligent in
accordance with the test laid down in Bolam v Friern Hospital Management Committee  1WLR 583, (in Bolitho this was the doctor’s comment that she would not have intubated the child if she had attended).
The Bolam test is such that a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of clinicians skilled in that field, ie the clinician is not negligent if they acted in accordance with
such a practice merely because there is a body of opinion who would take a contrary view.
Although the defendant’s counsel in Palmer argued that Bolitho applied in this case, the judge accepted the claimant’s counsel’s argument that only the first part of the Bolitho analysis had to be considered in this
case because the second on call Registrar was not actually called to give evidence at the trial and, therefore, had not been asked what he would have done, and how quickly he would have done it, if he had attended.
Here the judge commented that the only issue to be determined in light of the admitted failure of the midwife to call for medical assistance early enough was whether, if he had been called, the second on call Registrar would, on the balance of probabilities,
have arrived in time to deliver the claimant before 20:58, (which was agreed between the parties as the time by which delivery would have to have occurred for the claimant to have avoided all injury).
In cases involving perinatal, acute profound asphyxia, a case can stand or fall on whether minutes can be shaved off the delivery time with non-negligent treatment.
In cases concerning omissions, it is important to consider the hypothetical situation that is likely to have applied if that omission had not occurred and to work through all of the timings on this basis, ideally calling the clinician whose omission was
key to give evidence on what they would or would not have done. If such evidence is provided, the court will need to consider whether such action or inaction would have been negligent (ie can stand up to logical analysis) as per Bolam (and
addressed in Bolitho.)
In this case, the second on call Registrar was not called and so could not comment on what is likely to have happened if he had attended and by when. Instead, the judge had to make findings as to how quickly it is likely the Registrar would have arrived,
if he had been called, and how quickly delivery would have been effected, on the balance of probabilities.
Here the case failed because the judge found, on the facts that, on the balance of probabilities, the second on call Registrar would not have arrived quickly enough or been able to deliver the claimant quickly enough to have avoided the claimant suffering
the injury she actually suffered. The judge felt the delivery time would have been the same even if he had been called at an earlier stage, appreciating that the first on call Registrar was tied up in theatre with another patient.
This is a first instance decision which was quite fact specific, but the comments regarding the applicability of the first and second parts of the Bolitho analysis are helpful.
On breach of duty, consider not only any national guidelines that apply but also any procedures relevant locally. Here there were two registrars on call who could have been called, even though this is not the case in all hospitals. Such a system should
have been operated with due care.
Ensure you have thought through each step of the process which it is averred should have taken place, considering the timings for each stage and what is likely to have happened in the absence of the omission that it is averred did happen. If the clinician
who made the omission does give evidence on what they are likely to have done or not done, ensure your experts consider if this would have been Bolam negligent or not.
Ensure that your experts are fully aware of the factual evidence provided and carefully consider the scenarios. Experts who appear intransigent in light of the evidence or who make uncorrected errors are likely to be criticised by the court.
This case fell within the class of cases dealing with omissions. A key case in this area is the case of Montgomery v NHS Lanarkshire  UKSC 11,
 All ER (D) 113 (Mar) which affirmed that clinicians should properly advise in relation to the pros and cons of treatment or, indeed not treating a patient, so that patients can make informed choices.
A claimant can successfully bring a claim if there is an omission by a clinician to properly advice of the pros and cons in this way and the patient would have made a different choice leading to a different outcome, if they had been so advised. There
are several recent cases where Montgomery has been affirmed, eg the case of Webster v Burton Hospitals NHS Foundation Trust  EWCA Civ 62,
 All ER (D) 189 (Feb).
There is likely to be much debate on what issues clinicians should raise with patients.
Interviewed by Diana Bentley.The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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