Bolitho Arguments The devil is in the expert evidence

Facts

The Claimant was a type-2 diabetic who developed critical ischaemia in his right foot. There were 3 treatment options: angioplasty, sympathectomy, or as a last resort, amputation.

After performing a Doppler scan but not an angiogram, an MDT recommended sympathectomy. This was performed non-negligently but ultimately did not solve the problem. Therefore, following an angiogram, in an attempt to avoid amputation, an angioplasty was performed, notwithstanding that the radiologist did not consider it would be successful.

Against expectations, the angioplasty was successful but the Claimant suffered numerous complications from the sympathectomy. 

First instance

The Claimant (supported by expert evidence) argued that it was negligent to perform a sympathectomy without first doing an angiogram – had an angiogram been performed, angioplasty instead of sympathectomy would have been attempted first and the complications avoided.

The Defendant’s expert disagreed.

The Judge dismissed the claim on the basis that the MDT had reasonably selected sympathectomy as the best option. He did not rely on the Claimant’s expert because he had taken an extreme position that sympathectomy was hopeless. 

Issue for the appeal

The Claimant accepted that the decision to perform sympathectomy satisfied the Bolam test i.e. that it met the standard of a responsible body of medical opinion.

The sole issue was whether it satisfied the Bolitho test i.e. whether there was a logical basis of that responsible body of opinion.

Decision

The appeal was dismissed:

• The Judge had clearly considered whether the MDT had been objectively reasonable as per Bolitho. He had justifiably decided in the affirmative in accordance with the evidence, which was that there was no clear ‘best option’. His discussion of “acting reasonably” had the same connotations as “logical basis”.
• The burden of proving that a decision supported by a responsible body of medical opinion was unreasonable is a heavy one which needs to be supported by expert evidence to undermine that body. Here, there was no such evidence.

Comment

The decision is a useful reminder of 3 principles set out in Bolitho itself:

• The Bolam test has an inbuilt requirement for logic: “The use of these adjectives – responsible, reasonable and respectable – all show 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.”
• However, a finding that the genuinely held views of a body of medical opinion are unreasonable is rare.
• Most significantly for practitioners, the assessment of medical risks and benefits is a matter for clinical judgment – Judge cannot usually conclude that the same is illogical without cogent and supportive expert evidence. It is therefore critical to assess whether this exists before running a Bolitho argument.

SOPHIE FIRTH