The ‘non-responsible’ body of surgeons or the illogicality of common practice

It is interesting to see a case in which the claimant in a clinical negligence claim is faced with a body of practitioners who would have done precisely what the defendant surgeon did, and yet the claimant is still able to establish liability. A recent example is Bradfield-Kay v Cope [2019] EWHC 2881 in which judgment was given on 21st May 2020.

Bolam[1] says that a surgeon is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of surgeons in that field of practice even if there is a body of opinion who would take a contrary view.  Bolitho emphasises that the practice has to be one accepted as proper by a responsible body of medical men, so that the exponents of that practice have to be able to demonstrate that such an opinion has a logical basis.

In Bradfield-Kay v Cope the claimant underwent a left total hip replacement after which he developed serious thigh and groin pain.  Subsequently he required a left hip revision and the revision surgeon recorded ‘The cup was found to be retroverted and the anterium of the cup was prominent and was catching on the anterior structures’.

The claimant’s allegation was that the surgeon had been in breach of duty in permitting the acetabular component of the prosthetic hip to be prominent and in such a position that the iliopsoas tendon caught on it, that is that the cup protruded beyond the acetabular rim.  The judge made the following findings of fact:

(1) The prominence of the acetabular component was more than negligible and it was not within the confines of the ‘native’ acetabulum.

(2) The version of the socket was less than expected, the revision surgeon’s note indicating that it was a significant version. And therefore the cup was not placed at an appropriate degree of anteversion.

(3) The version of the socket was such as to cause the acetabular component to be prominent.

(4) The prominence of the acetabular component was sufficient to cause irritation of the left iliopsoas tendon.

The judge went on to find, on the evidence before him, including the expert evidence, that some surgeons allow the acetabular component to stand prominent from the native bone, and therefore there is a body of surgeons undertaking total hip replacements who do not ensure that the acetabular component is not placed in a position that could interfere with the iliopsoas tendon.  Indeed the defendant surgeon gave evidence that although he had undergone three training sessions on THR, he was not taught to check that the cup did not protrude beyond the acetabular rim.  The claimant’s expert, while critical of this, could not refer to any textbook or handout from any presentation to demonstrate that the practice of checking that the cup was not prominent was accepted throughout the profession as standard either at the time of the operation in 2009 or indeed now.  Further the experts accepted that there were circumstances when it is not possible to ensure that the socket is not prominent, for example because of the anatomy of the patient, although this was not one of them.  The judge found his conclusion supported not only by the evidence of the defendant surgeon but also by the fact that the Defendant’s expert had carried out many revision arthroplasties where it was plain that other surgeons took a view similar to the defendant surgeon.

The judge held that both Bolam and Bolitho required the court to examine the different schools of thought and to ask whether the one relied upon by the defendant could demonstrate that its exponents’ opinion had a logical basis.

He went on to conclude that there was no logical basis for neglecting to ensure that the acetabular component was not placed in a position that could interfere with the iliopsoas tendon, and no good reason had been put forward for not taking this precaution.  The risk of impingement was a well-recognised risk.  Therefore the patient was entitled to expect a competent hip surgeon at the relevant time to ensure that the acetabular component was placed so that it did not interfere with the iliopsoas tendon and the allegations of breach of duty and negligence in relation to the placing of the acetabular cup were made out and liability was established.

The judge’s conclusion was therefore that although there is a body of surgeons undertaking total hip replacements who do not ensure that the acetabular component is not placed in a position that could interfere with the iliopsoas tendon, that body is not a reasonable, or responsible, or responsible, or reasonably competent, body (Bolam) and/or that that body cannot demonstrate that its opinion has a logical basis, for example when weighing the comparative risks and benefits of that practice (Bolitho).

It followed that the defendant surgeon was being held to a standard of which he was unaware at the time of the criticised surgery, but that that standard was one which the patient was entitled to expect from a competent hip surgeon.

Learning point:

This is a useful reminder that simply because a doctor acts in a manner followed by a body of other doctors does not necessarily mean that the doctor has an answer to a claim in negligence.  If the practice of that body of doctors can be shown to be lacking a logical basis then it is not the practice of a body of ‘responsible, reasonable or respectable’ doctors, and will not provide the doctor with a defence.

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[1] Bolam v Friern Hospital Management Committee [1957] 1 WLR 583

How wrong can an expert be?

Hot on the heels of the last blog, another disaster in court is reported for an expert who surely should have known better.

In Thimmaya v Lancashire NHS Foundation Trust and Jamil (Manchester County Court 30/1/20) the expert was required to pay the costs of most of the litigation in a clinical negligence claim in which he was instructed on behalf of the claimant, arising from his ‘improper, unreasonable or negligent conduct’.  Those costs amounted to £88,801.68 (plus the costs of the application to obtain that ruling).

What did the expert do wrong?  At trial, in cross-examination he was unable to articulate the test to be applied in determining breach of duty in a clinical negligence case.  He could not recall the Bolam/Bolitho test.  And yet that was the legal test he was being asked to address in giving his opinion on the matter which was being litigated.  That failure was previously hinted at by his reference in the joint statement to ‘best practice’ which is of course of no direct relevance when assessing whether the actions or inactions of a doctor are negligent.

Faced with that inability on the part of her expert at a crucial moment in the trial, the claimant had to abandon her claim as she could not, on this evidence, prove negligence.

The expert had himself only carried out the surgery in question on two occasions.  That was held not necessarily to be fatal to his acting as an expert as he had been involved in treating a lot of patients recovering from the procedure.  As the judge said ‘there are plenty of not very good experts about’ and they are not all at risk of paying costs.

His reports were found to be ‘not particularly well written, nor well argued’.  That is not in itself fatal, but of course raises questions as to the expert’s overall competence, and had prompted his solicitors to ask him to confirm his suitability to report.

Due to mental health problems the expert had taken sick leave from his clinical practice, but he continued his medico-legal practice for a period, which included his becoming involved in this litigation, and he did not inform the claimant or her advisers of his medical condition.  However sympathetic one might be on a personal level, professionally the situation was clear (as events proved) in that the expert should have taken leave from all practice.

Learning points:

  1. An expert witness must know and apply accurately the appropriate legal tests when providing an opinion and subsequently giving evidence in court. Nothing short of that will do.
  2. An expert witness is likely to be challenged over their expertise to provide an opinion if they have only very limited personal experience of the matter on which they provide an opinion.
  3. An expert report must be clearly written and provide properly reasoned opinions based on identified facts.
  4. An expert witness must inform the instructing party if any issues arise which might impact on their ability to give reliable evidence, including ill health and judicial criticism in court.

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