Bradfield-Kay v Cope [2020] - Breach of duty and the importance of Bolitho’s “logical basis"

By Emily Girvan-Dutton


The starting point of most clinical negligence claims is McKinnon J’s articulation in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, 587: “…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art".


This was qualified by Lord Browne-Wilkinson in Bolitho v City and Hackney HA [1998] AC 232, 241: “…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.”

Background


The claimant, Mr. Bradfield-Kay, underwent total hip replacements, on his right and left sides, in November and December 2009, at the hands of Mr. Cope (the defendant) and a Consultant Orthopaedic Surgeon. Following the operation on his left hip, Mr. Bradfield-Kay began to experience severe pain in the thigh and groin and a painful clicking. Mr. Bradfield-Kay’s GP referred him to Mr. Hemmady, another Consultant Orthopaedic Surgeon. Mr. Hemmady, who performed a left hip revision on the claimant, stated in his operation note that: “The cup was found to be retroverted and the anterium of the cup was prominent and was catching on the anterior structures.” Mr. Bradfield-Kay’s symptoms improved following this secondary operation on his left hip but not entirely.


One of three negligence allegations the claimant levelled against the defendant is that: during the left total hip replacement, Mr. Cope 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.


The acetabular component:


The significance of this case revolves around the acetabular component and the expert evidence relating to this.


Both testifying experts agreed that if the acetabular component is positioned in such a way that the iliopsoas tendon is caught on it, the tendon can become painful and this should be avoided. One of the experts stated that they have seen prominent acetabular components “quite frequently” during their hip-revision surgeries, believing that “surgeons are not as careful as they should be to ensure that the socket is deep to the anterior bone” or are insufficiently aware of this issue. Mr. Cope gave evidence that he had never been trained to check for the protrusion of the cup.


HHJ Sephton QC, in his judgment, accepted “Mr. Hemmady’s account and the evidence of the experts that the prominence of the acetabular component was sufficient to cause irritation of… the left iliopsoas tendon.” He also concluded that, based on the expert evidence, “there is a body of surgeons undertaking total hip replacements who do not ensure that the acetabular component is

not placed in a position that could interfere with the iliopsoas tendon”. The defendant’s case was that the expert’s evidence provided him with the Bolam defence.


HHJ Sephton QC rejected the submission that when Bolam is used as a defence, the claimant must be driven to rely upon Bolitho. In his view: “both Bolam and Bolitho 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 concluded 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”, in favour of the claimant on this point.


Significance:


The importance of this judgement is the clarification of Bolam and Bolitho as effectively applying as one singular test. The court must assess whether the expert’s opinion, confirming that a practice is “accepted as proper by a responsible body of medical practitioners”, is supported by a “logical basis”.

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