In this post, 12KBW pupil Samuel Cuthbert considers the ramifications of the case of Bradfield-Kay v Cope [2020] EWHC 1352 (QB) for the tests set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 and Bolitho v City and Hackney HA [1998] AC 232.
Background to the case
The Claimant suffered from osteoarthritic changes in the both hips. He underwent a right total hip replacement (“THR”) on 06 November 2009, from which he recovered quickly. He subsequently underwent a left THR on 18 December 2009, and this operation gave rise to the alleged negligence. The Defendant, who performed both operations, was a Consultant Orthopaedic Surgeon specialising in lower limb arthroplasty.
The Claimant argued that he had complained of thigh and groin pains to the Defendant at a consultation on 09 August 2010, but that the Defendant had failed to investigate these. This was disputed. On 07 February 2011, during a further consultation, the Claimant complained of painful clicking in the left hip which the Defendant noted as probably relating to the psoas tendon catching over the anterior part of the cup. The Claimant was referred for a second opinion by his GP to Mr Hemmady, a Consultant Orthopaedic Surgeon, who performed a left hip revision on the Claimant. Mr Hemmady’s operation note stated:
“There was no evidence of trunnionosis. The cup was found to be retroverted and the anterium of the cup was prominent and was catching on the anterior structures. There were no signs to suggest wear of the head of the metal liner. The cup was well fixed and I removed it… The stem was found to be well fixed and therefore I elected to leave it in situ.”
The Claimant alleged that the Defendant had been negligent in the following ways:
- When he performed the left total hip replacement on 18 December 2009, the Defendant permitted the acetabular component of the prosthetic hip to be prominent, in such a position that the iliopsoas tendon caught on it, causing him to develop iliopsoas tendonitis:
- When he performed the left total hip replacement, the Defendant used the incorrect femoral component;
- When he saw the Claimant on 9 August 2010, he failed to record or investigate the Claimant’s groin pain.
The Acetabular Component
Expert evidence was provided on this point by Mr Chatterji for the Claimant, and by Mr Manktelow for the Defendant. Both experts were consultant orthopaedic surgeons. Whilst Mr Chatterji had undertaken THRs in the past, his primary focus of practice was accepted to be knee replacement surgery. However, Mr Manktelow’s practice was accepted to be primary and revision hip arthroplasties. In their joint report, the experts agreed that where the acetabular component is placed so that it catches the iliopsoas tendon as it passes over the exposed rim of the cup, the tendon can become irritated, inflamed and painful. Of note was Mr Cope’s evidence that he had never been trained to check that the cup did not protrude beyond the acetabular rim, and Mr Manktelow’s evidence that he had seen prominent acetabular components quite frequently. HHJ Sephton QC drew an inference from this evidence that there is a body of surgeons undertaking THRs who do not ensure that the acetabular component is not placed in a position that could interfere with the iliopsoas tendon.
The Judge inferred from the remark of Mr Hemmady in the operation note that the prominence of the acetabular component was more than negligible and that the acetabular cup was not placed within the confines of the native acetabulum. However, the experts disagreed as to whether this constituted a breach of duty. Mr Chatterji contended that it did by virtue of the fact that catching of the acetabular component on the iliopsoas tendon is a known avoidable complication, and there was no reason to leave the component sitting proud anteriorly. Conversely, Mr Manktelow did not consider that the orientation of the acetabular component was a breach of duty by the Defendant; however, the judge was critical of the expert’s failure to explain in clear terms why this was the case.
The Defendant’s case was that Mr Manktelow’s evidence provided a defence in the terms set out by Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. The judge considered the positions set out respectively in Bolam, and Bolitho v City and Hackney HA [1998] AC 232 and concluded that that both cases require the court to examine the different schools of thought and to ask itself whether the school of thought relied upon by the defendant can demonstrate that its exponents’ opinion has a logical basis. He subsequently found 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 that “[t]here was no surgical or anatomical reason for running the risk in this case”, and the Claimant succeeded on this point.
The Femoral Component
The judge found for the Claimant on the facts on this point. He determined that the component which had been used for this part of the left THR (a KA8 component) was chosen simply because of an avoidable misunderstanding as to the prosthesis which had been used on the contralateral side. The Defendant’s witness statement set out the belief that the contralateral side had used a “9KA” stem, which the Defendant then corrected to a “9KLA” stem. This was said to be a typographical error, but that explanation was given short shrift. The judge found that the KA8 component was chosen because the Defendant mistakenly believed the right THR had used a KA9 component and that this was an “elementary blunder which bespeaks negligence on his part“. Because of this error, the Defendant considered that the difference in offset between the left and right was 0.5mm, when in actual fact it was approximately 7mm.
The 09 August 2010 Consultation
HHJ Sephton QC dismissed this point on the facts, rejecting the Claimant’s evidence that he had complained about his groin symptoms on 09 August 2010. The judge instead found that the Claimant’s groin pain had developed some time later. The judge also rejected the Defendant’s evidence that he had undertaken an examination of the Claimant on 09 August 2010, because there was no record consistent with such an examination having taken place.
Comment
This judgment clarifies the application and alignment of the Bolam and Bolitho tests. Where a defendant contends that it has acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field, a court will need to assess whether the expert opinion behind this has a logical basis. In this case, the judge considered that the Defendant’s expert’s “justification for asserting that there was no breach of duty was because he said so”. The expert “plainly thought that a surgeon ought to avoid prominence of the acetabular component” and “clearly disapproved of” the view of surgeons who did not do so, and therefore it did not make sense as to why the expert would not view such failings as a breach of duty. This judgment effectively confirms that Bolam and Bolitho represent a singular test, which requires the court to assess whether the exponents’ opinion in support of a school of thought has a logical basis.
Clinical Negligence Law 