Medical Negligence TestingOct 12, 2020
A recent High Court case has examined the law surrounding whether or not a doctor has been negligent.
It also looks at whether they are bound to compensate their patient for additional injuries caused by the medical negligence.
The case itself
The Case was that of Mr Bradfield-Kay -v- Mr Marcus Cope. Mr Bradfield-Kay was an engineer who had arthritic hips, whilst Mr Cope was a hip surgeon. Mr Bradfield-Kay had both hips replaced with artificial joints. The right-hand hip replacement went well but the left hand one didn’t. After the operation, Mr Bradfield-Kay developed serious pain in his thigh and groin.
Mr Bradfield-Kay was referred for a second opinion and eventually had to have another operation. It was found that his pain was due to the cup of the artificial hip not being positioned correctly. It was actually rubbing on a tendon causing the pain.
When the case went to court, the Surgeon, Mr Cope, gave his evidence. His evidence included that he had never been taught to check that the cup of the artificial hip did not protrude beyond the rim of the hip.
The expert medical opinion
Claims involving medical negligence always involve expert witnesses who assist the Judge with matters of medical opinion.
In this case, both the expert surgeons, one for the Claimant and one for the Defendant doctor, gave their opinions. They accepted that there appeared to be no written guidance that a surgeon should check the position of the component. However, the claimant’s expert said that he always did. He added that it was a simple process – running the finger or an instrument around the rim of the component. This would allow the the surgeon to check that it was flush with the bone.
The defendant’s expert agreed that it was a simple process but gave evidence to the effect that it was not a required process. He added that a number of hip surgeons would not routinely carry out this simple check.
So what happens next..
When a Judge has to decide whether a doctor has been negligent, he applies what lawyers call the Bolam Test. The test states that a doctor is ‘not negligent if they have acted in accordance with the practice accepted as proper by a responsible body of medical men’. The language here is rather old fashioned. It comes from a case which is over 60 years old. But this is still the leading case in this area of law.
The Defendant doctor therefore argued that although it would have been better to have checked the position of the component, it was not negligent because there were a number of surgeons who would not have checked the positioning.
The law however does not end with the case of Bolam. There was a subsequent case called Bolitho. In that case the law was clarified and the law stated that if the Defendant is relying on the Bolam Case, he has to show that the standard of practice recognised as reasonable by a reasonable body of opinion was logical and reasonable. The Judge found that the Defendant’s expert witness could not justify why this was a reasonable practice. He simply stated that, in his opinion, it was!
The Judge therefore concluded that the risk of impingement on the tendon was a well-recognised risk which could easily have been identified by visualisation or by palpation or by running an instrument around the rim of the bone. If there was any ridge in the placement of the artificial hip, it was a relatively simple matter to remove the component and replace it. There was no surgical or anatomical reason for running the risk in the case.
The Judge accepted that Mr Cope was being held to a standard of which he was unaware (because he had never been trained in that way) but that was no defence. The fact that he was unaware and other Surgeons carried out this practice did not make it an acceptable and non-negligent practice. Therefore, Mr Bradfield-Kay succeeded in this element of his claim. The Judge found that Mr Cope was in breach of duty of care to Mr Bradfield-Kay and had caused him injury through that negligence.
Get in touch
You can speak to a member of our Medical Negligence Team for a free no obligation assessment. Please speak to Mike Shiers or one of the team to see how we can help you. Mike’s email address is [email protected] or you can reach him on his phone number 01752 827025.