August 28, 2019

Bolam, Bolitho, and Back to the Future of Clinical Negligence

Can a doctor really be liable for being ahead of their time when treating patients? What if they are not following a recognised practice, but time and advancements in treatment prove them right? These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384

Can a doctor really be liable for being ahead of their time when treating patients? What if they are not following a recognised practice, but time and advancements in treatment prove them right? These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384.

The core of the case was whether an obstetrician's prescription of Nifedipine was negligent. The case related to a prescription in November 1995. This presented an interesting inversion of the usual test, as subsequent to the events in question Nifedipine had become a standard drug. The question for the court was whether – regardless of Nifedipine subsequently being used in ordinary practice – the obstetrician had been negligent for being ahead of their time.

Mr Jones argued that his mother had been negligently prescribed Nifedipine during her pregnancy, causing him brain injury. His mother experienced "false alarms" of going into labour during. There was a concern that the symptoms were suggestive of pre-term labour.

The obstetrician made the decision to prescribe Nifedipine, a tocolytic drug, in order to suppress or postpone pre-term labour. This led to a fall in her blood pressure, a hypoxic episode, and ultimately to Mr Jones suffering from periventricular leukomalacia (a brain injury affecting premature infants). He argued that the tocolytic drug of choice at the material time was Ritodrine, and that Nifedipine should only have been administered as part of a clinical trial.

Mr Jones argued that the obstetrician was negligent on the basis of the test in Bolitho v City and Hackney Health Authority [1998] AC 232, refined in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. Bolitho narrowed the scope of the test, stating that the court must be satisfied that the body of opinion relied upon has a logical basis.

The court determined that it had to try the issue of the prescription of Nifedipine as a tocolytic drug by the standards of the time, and not by subsequent developments.  There was evidence from highly respected medical journals prior to November 1995 which demonstrated that a responsible body of medical practitioners could have selected either Ritodrine or Nifedipine. Accordingly there was no breach of duty.

Although he did not consider it necessary to decide the point, Mr Justice Stewart commented that the question remains: if a doctor would not be in breach of duty for prescribing a drug in 2002 because of changes of medical opinion, then should a doctor prescribing the same drug in 1995 be found negligent in a trial taking place after 2002?

Although Mr Justice Stewart left the issue for the consideration of a higher court, we have little doubt that a court would not find that Bolam can be inverted in this way. If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? That would be an unlikely sea change in clinical negligence. But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? We doubt it. Medical advances have to be well-evidenced before being put into practice, and the court is hardly likely to encourage behaviour to the contrary.