On 27 April 2007, a patient, Ms Smith, successfully appealed against the judgment of a High Court dismissing her claim for medical negligence. Bolam came to Ms Smith’s rescue!
In summary, Ms Smith suffered injuries (right obturator nerve and vein damage) during the course of a hysterectomy and associated removal of pelvic lymph nodes. She has substantial disabilities. The most interesting aspects of the case relate to Ms Smith’s nerve damage and this is the focus of our summary.
Cause of damage?
At first instance, Miss Recorder Davies QC (sitting as a deputy judge) failed to reach a firm finding on the cause of damage to Ms Smith’s nerve: “No one can say with certainty how the damage occurred”.
The Court of Appeal disagreed. In his judgment, Wall LJ held “the manner in which Mr Nieto [one of the two surgeons involved] described the cause of damage to the right obturator nerve not only accorded with the experience of both experts, but plainly represented the most likely manner in which the damage occurred”. The court therefore held that Ms Smith’s nerve damage most likely arose from a cut from partially opened scissors.
The court next considered whether Ms Smith’s nerve damage was evidence of negligence. Two expert gynaecologists provided differing opinions. Professor Soutter (instructed by Ms Smith) gave his opinion that if initial damage to Ms Smith’s nerve was caused by a cut from partially opened scissors, that was sub-standard surgery. Mr Monaghan (instructed by the defendant NHS Trust) maintained otherwise.
Miss Recorder Davies QC was persuaded by Mr Monaghan. The deputy judge held: “The nature of the Bolam test has always been its adaptability to reflect the particular skill of the doctor in question. No one has suggested that Mr Monaghan does not represent the view of a responsible body of gynaecological surgeons. Accordingly [Ms Smith] has failed to satisfy the test for negligence in respect of damage to the right obturator nerve”.
Again, the Court of Appeal disagreed. Wall LJ held: “Where there is a clear conflict of medical opinion, the court’s duty is not merely to say which view it prefers, but to explain why it prefers one to the other… it is not sufficient, in my view, simply to say that Mr Monaghan is representative of a responsible body of medical opinion…” The court concluded that the deputy judge not only erred in her understanding and application of Bolam, but also in her understanding of Mr Monaghan’s evidence. As a consequence, Ms Smith will receive damages for her nerve damage.
The Court of Appeal’s judgment serves as a useful reminder to all working in the field of medical negligence that Bolam is an exacting test. In short, it demands that reliable expert opinion must be capable of withstanding intense scrutiny.