In the majority of clinical negligence cases, liability is determined purely on the basis of the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). This test provides relatively limited scope for judges to make independent findings of negligence. Instead, a judge's findings must be premised on the medical experts' evidence about what is acceptable practice by the standards of clinicians within the relevant field of medicine.
However, there is a slight exception to the general rule above, in the form of the case of Bolitho v City and Hackney Health Authority [1998] AC 232. This case enables a judge to make a finding that a clinician was negligent because their actions lacked a logical basis, even if there may be a body of clinicians that would have done the same thing.
The application of Bolitho in the recent case of Hodgson v Hammond and another [2025] EWHC 1261 (KB) provides a helpful indication as to when it will be advisable for claimants to rely upon this authority.
Brief background to the case1
On 30 August 2016, the claimant attended an appointment with the first defendant, the general practitioner Dr Hammond. He took her history which included ongoing abdominal pain (albeit that it had subsided after the claimant had started taking co-amoxiclav), vaginal discharge and irregular bleeding. He recorded in his notes that she had a "resolving pelvic infection", most likely Pelvic Inflammatory Disease ("PID"). Dr Hammond examined the claimant's abdomen, but not her pelvis. His advice was that she should have blood tests for infection, but that no other investigations were required at that time. He recommended she phone in again if she experienced recurrence of severe abdominal pain, fever and/or vomiting.
As it later transpired, the claimant did indeed have PID. As a result of her condition remaining untreated for a prolonged period of time, the claimant went on to suffer complications including development of a tubo-ovarian abscess necessitating removal of her left fallopian tube.
At trial
The trial judge was HJ Melissa Clarke. In relation to the issue of breach of duty, she heard evidence from the expert general practitioners Dr Hicks for the claimant, and Dr Hampton for the first defendant.
Both experts agreed that general practitioners should adopt a "low threshold for consideration of a diagnosis of PID" because "untreated or inadequately treated PID can result in severe long term complications". They also agreed that classic symptoms for PID included abdominal pain, vaginal discharge and bleeding, as had been reported by the claimant at her appointment with the first defendant. The experts also agreed that PID was a condition which could wax and wane in terms of presentation of symptoms (especially where antibiotics had recently been taken).
On this basis, Dr Hicks was satisfied that the first defendant was negligent, because he did not consider any responsible body of general practitioners would support the failure to make a pelvic assessment of the claimant at the index consultation, given the warning signs that she had PID.
Dr Hampton, on the other hand, contended that the first defendant had not been negligent. His evidence provided a Bolam defence to the claim. He advised that, despite the claimant's reported symptoms and the high index of suspicion with which GPs should have for PID, the first defendant was not negligent because it was a matter for his clinical judgement as to whether a pelvic examination was called for, and a responsible body of GPs would also elect not to conduct an examination in these circumstances. Dr Hampton stated that the claimant's PID was resolving and that this was a reason not to undertake a pelvic exam.
The judge's findings
The judge found for the claimant. Whilst she was satisfied that the first defendant was negligent on the basis of the Bolam test alone, she explained that she was also satisfied the first defendant was negligent in accordance with Bolitho, because his actions could not withstand logical analysis.
Specifically, the judge rejected as illogical Dr Hampton's evidence that it was reasonable not to complete a pelvic examination because the claimant's PID was resolving. She found that there was no basis for the first defendant to determine that the claimant's PID would resolve, in light of the expert consensus that symptoms of PID tend to fluctuate in severity (especially after antibiotics have been taken).
In all the circumstances, the judge found that the reasons not to perform a pelvic examination were limited, whilst the reasons in favour of performing the exam were compelling in light of the severe complications that could arise from untreated PID. The judge therefore concluded that there was no logical justification behind not conducting a pelvic examination at the index appointment.
Comment
This case provides helpful guidance to practitioners about when it may be important to include submissions based on Bolitho within proceedings. In particular, in cases that involve omissions to conduct clinical investigations, it is a reminder to gather comprehensive, well reasoned expert evidence about possible justifications behind not conducting those investigations, as well as the potential risks that may arise to a patient should they not be completed. If the justifications for the former are limited, and the risks of the latter are significant, it may well indicate that a claim should be put forward on the basis of both Bolitho and Bolam.
Footnote
1 I will consider only the facts and evidence in respect of the claimant's case against the first defendant in this post. Her claim against the second defendant was also successful but did not involve a substantive application of Bolitho.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
