When is Bolitho not Bolitho? Bradfield-Kay v Cope
An interesting case in which judgment was relatively recently handed down is that of Thomas Bradfield-Kay v Marcus Cope [https://www.bailii.org/ew/cases/EWHC/QB/2020/1351.html] EWHC 1351 (QB) concerning the application of Bolitho to an orthopaedic clinical negligence case.
The case concerned whether the defendant, a consultant orthopaedic surgeon, was negligent in his performance of a left total hip replacement (THR) in the claimant on 18 December 2009 and with respect to a subsequent consultation on 9 August 2010.
The claimant did not recover well from the THR, developing severe pain in his thigh and groin immediately after the operation. He allegedly reported these symptoms to the defendant during an appointment on 9 August 2010 but the latter did not carry out any investigations, although whether the symptoms were reported was in dispute. On 7 February 2011, the defendant saw the claimant and identified that painful clicking was likely due to the psoas tendon catching over the anterior lip part of the acetabular cup. On 15 March 2012, a different surgeon performed a left hip revision, noting in the operation note that the “anterium of the cup was prominent and was catching on anterior structures…” This revision improved, but did not resolve, the claimant’s symptoms and he underwent a further revision on 23 May 2016.
The claimant alleged the following: (a) when he performed the left THR, 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; (b) the defendant used the incorrect femoral component; and (c) when the defendant saw the claimant on 9 August 2010, he failed to record or investigate the Claimant’s groin pain.
Both the claimant and defendant gave evidence. Both parties called orthopaedic expert evidence: Mr Chatterji for the claimant; Mr Manktelow for the defendant. The former’s practice was mainly knees, whereas the latter’s practice was mainly primary and revision hip arthroplasties. The judge was clear that Mr Manktelow appeared to be better able to comment on the practice of hip specialists in the UK than Mr Chatterji.
The main aspect of the case concerned the placement of the uncemented hemispherical acetabular component of the hip. Both experts and the defendant himself accepted that in THRs the iliopsoas tendon can become irritated, inflamed and painful (iliopsoas tendonitis) if the acetabular component is placed so that it catches the iliopsoas tendon as it passes over the exposed rim of the cup. The experts agreed that the most likely cause of the tendon irritation in this particular case was a prominent acetabular component. The experts further agreed that the three factors affecting prominence of the acetabular component were (a) anatomical variation, (b) degree of anteversion and (c) depth to which socket is implanted, but (c) was not relevant to this case. It was agreed that an acceptable range of anteversion was between 10º and 30º to (i) ensure joint stability, (ii) minimise metal wear and (iii) reduce prominence of the acetabular component beyond the anterior margin of the native bone, this latter aspect being the only one of those three matters that was an issue in this case. The experts further agreed that the amount of anteversion or retroversion in this case was small, which the judge interpreted as meaning approximately 0º.
On the basis of the operation note of the revision surgery, the judge inferred that the acetabular component prominence was more than negligible, as otherwise the revising surgeon would not have mentioned it in his note, and the cup “version” was not appropriate anteversion, as otherwise the surgeon would not have referred to “retroversion”. This led to the judge’s conclusion that the inappropriate version of the socket caused the acetabular component to be prominent and it was this that had caused the iliopsoas tendonitis.
Both the experts agreed that “surgeons should ensure the acetabular component is not placed in a position that could interfere with the iliopsoas tendon such as beyond the acetabular margin of the native acetabulum”.
Mr Manktelow’s evidence was that he did many hip revisions and surgeons will run a finger or instrument over the socket to check for prominence but he saw prominent acetabular components “quite frequently” and a number of surgeons made this “error”. The judge derived from this evidence that some surgeons allowed the acetabular component to stand prominent from native bone and that Mr Manktelow was critical of this conduct. The defendant’s own evidence was that he had not been taught to check for prominence and so did not do so, which the judge accepted.
Mr Chatterji said it was easy to check for prominence by running a finger or instrument around the acetabular rim but he was unable to refer to any textbook or handout to demonstrate that this was the standard throughout the profession in 2009, although he maintained that to leave the acetabular component proud in this particular case (when there was no anatomical peculiarity or surgical necessity) was a breach of duty.
On the other hand, Mr Manktelow, whilst critical of the prominence of the acetabular component, did not consider it to be a breach of duty, as there were surgeons who did likewise, although he gave no justification for why it was not a breach of duty.
The judge was clear that there was a body of surgeons, including both experts in the case, who considered that surgeons should ensure that the acetabular component was not prominent; however, there was also a body that did not subscribe to that opinion, which included the defendant.
As such, the defendant’s counsel asserted that there was a clear Bolam defence and the claimant was driven to rely on Bolitho, but the judge rejected this submission. However, the judge nevertheless reached the conclusion 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”.
Although the judge rejected defendant counsel’s assertion that the claimant was reliant on Bolitho, it is not immediately clear why that conclusion was not based on Bolitho, in that the body of surgeons to whom Mr Manktelow referred, and which included the defendant, and who did neglect to ensure placement was not prominent was not a responsible body (and was, therefore, a negligent one) because such neglect was illogical.
The rejection of defendant counsel’s submission appears to have arisen from the judge’s earlier recital of a quote from Lord Browne-Wilson’s judgment in Bolitho: “… The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis”. It is clear the judge considered that the body of opinion that would support the defendant’s omission in this case was illogical.
However, the very fact that the judge accepted that “there are other surgeons who appear to adopt the [defendant’s] practice” and then concluded that that body of surgeons’ practice was illogical in this case is in kilter with Lord Browne-Wilkinson’s subsequent remarks in Bolitho on the court’s assessment of clinical judgment: “… it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed”.
It appears to me, therefore, that in this case the body of expert opinion that supported the defendant could not be logically supported at all and the case was one of the rare cases to which Lord Browne-Wilkinson was referring in his judgment in Bolitho. Nevertheless, albeit that it appears that the case actually ended up being about Bolitho (which is clearly, and entirely understandably, what the defendant’s counsel thought!), it is perhaps helpful that the way the judge appears to have assessed the defendant’s omission was to look at Bolam and Bolitho together and identify whether the school of thought relied upon by the defendant was logical, which he concluded it was not. However, whether it is viewed as a single Bolam/Bolitho test, a single but two-stage Bolam and then Bolitho test or two totally separate Bolam and Bolitho tests is really rather academic: the key take-home message is that, to be held non-negligent, a particular medical or surgical practice must be a logical one.
Of the first of the remaining two issues, the judge concluded that the defendant had also used the wrong femoral component because he had unacceptably failed to check the stem he had used on the right side (which he had undertaken only fairly recently before operating on the left side) and, therefore, he misjudged the difference in “offset”, namely the perpendicular distance from the centre of the femoral head to a line running down the middle of the shaft of the femur and resultingly used the wrong component. On the second issue, the judge concluded on the facts that the claimant had not informed the defendant of his complaints at the consultation in August 2010 and the claimant failed on this particular allegation.
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