In this post Thea Wilson of 12 KBW considers the recent case of Williams v CWM Taf Local Health Board, in which the Court of Appeal gave further guidance regarding the heavy burden on claimants of satisfying the Bolitho test.
The Facts
The Appellant (Claimant at first instance) had a number of health problems including Type 2 Diabetes. He began to suffer right foot pain due to arteries blocked by calcification. On 19 January 2010 he was admitted to the Respondent’s hospital. A number of investigations, in particular a Doppler scan, over ten days showed dense calcification and consequent critical ischaemia in the foot. That diagnosis led to three possible treatment options: (1) angioplasty; (2) sympathectomy; and (3) amputation.
After a multidisciplinary team meeting, a sympathectomy was recommended. The Appellant followed this advice, underwent the procedure, and experienced short-term improvement but then deterioration of his symptoms. An angiogram was then carried out. On the basis of this, the radiologist considered that an angioplasty had little prospect of success and did not recommend it. As the alternative was amputation, however, angioplasty was attempted. Against the odds it was successful. Unfortunately, the Appellant then suffered serious complications from the sympathectomy including further emergency surgery, septic shock and eventually bowel incontinence for approximately 18 months.
The Appellant sued, making no criticism of how the sympathectomy was carried out but arguing that it was negligent to perform a sympathectomy without first doing an angiogram which, he claimed, would have led to the angioplasty being attempted first.
The Judgment
The claim failed at first instance. Recorder Treverton-Jones QC did not consider that the Appellant’s expert reliable, finding the Defendant’s expert “altogether more impressive”. He considered that the fact that the angioplasty was not recommended even after the angiogram suggested that it was reasonable to proceed with the sympathectomy on the basis of the Doppler scan alone. Of some importance to his decision was the fact that this was not the decision of a single doctor on the spur of the moment, but that there had been a number of investigations and a multidisciplinary team meeting.
The Appeal
On appeal, the Appellant shifted focus. He conceded that the evidence, particularly the Defendant’s expert, entitled the Judge to conclude that the Defendant’s medical team had satisfied the Bolam test (i.e. this was a decision that would have been regarded as acceptable by a responsible body of medical opinion), but argued that there was a failure to consider and apply the qualification from Bolitho. The Appellant argued on the basis of the evidence of the Defendant’s vascular radiologist and their expert that the course taken was illogical: sympathectomy was a procedure with a markedly more limited chance of achieving any improvement and more significant risk complications than angioplasty, therefore it was illogical not to perform an angiogram with a view to angioplasty first.
Underhill LJ delivered the Court of Appeal’s Judgment. He rejected the notion that the Recorder had not considered Bolitho; although he did not use the phrase “a logical basis”, the Recorder had referred to the case and used language which was in line with Bolitho. He found that the Recorder had reached a conclusion open to him when applying Bolitho.
There were two elements crucial to Underhill LJ’s judgment on this point. First, whilst it was theoretically possible for a judge to hold a clinical decision illogical without expert evidence, generally it would not be appropriate to do so. Here, whilst the Appellant relied on sections of the Defendant’s expert’s evidence, the fact that the Defendant’s expert clearly considered the clinicians’ decision reasonable undermined that. Second, in the rare occasions where a judge could find illogicality in the absence of expert evidence, stark illogicality would be necessary. That was not present in this case. On the contrary, the evidence did not clearly show the relative benefits of the two procedures.
Comment
Whilst the outcome of this appeal will not be particularly surprising to practitioners given that the Appellant was attempting to make his case after his own expert had been found unhelpful to the judge, there are still useful practice points to take from the case.
First, a decision from a multidisciplinary team meeting after a number of investigations is likely to satisfy both Bolam and Bolitho. This is as one would expect, but still a useful factor to consider when reviewing medical notes at the outset of a claim. In contrast to the decision of a single medical practitioner (or even several) in a clinical setting, a multidisciplinary team meeting will usually involve conditions likely to meet these standards: a group of medical practitioners (even of different disciplines) which will go a long way to satisfying Bolam; and a controlled and considered environment where investigation/tests can be considered and a conclusion reached, which make it a challenge to argue that the decisions were illogical.
Second, the Court of Appeal has emphasised that the circumstances where Bolitho can be successfully relied upon will be few and far between; it is a high standard for a claimant to satisfy. Generally there would need to be robust expert evidence as “it would not, in all ordinary circumstances, be appropriate for a judge to hold that a particular clinical decision had no logical basis or was unreasonable without the support of expert evidence.” (per Underhill LJ at para 13). In the rare cases without expert evidence the illogicality considered would have to be stark and even then utmost caution would be required of the judge.
Finally, the case demonstrates again the importance of getting the right expert evidence from the start. The Appellant’s expert had taken a position on sympathectomy which was unsupported by the medical literature and inconsistent with his own evidence. The Appellant was then left in the unhappy position of building a case for illogicality which satisfied Bolitho on the basis of the Defendant’s witness and expert evidence, which was always going to be extremely difficult.
Clinical Negligence Law 