Bradfield-Kay v Cope [2020] EWHC 1351 (QB)
This article originally appeared in Issue 6 (September 2020).
This split trial on breach of duty concerned allegations relating to the performance of a total left hip replacement by the Defendant. Of interest is the approach taken by the judge to the distinction between the Bolam and Bolitho tests.
Facts
In November 2009, following osteoarthritic changes, the Defendant had privately performed a right total hip replacement for the Claimant, who was satisfied with the results. Later that month, following a consultation, the Claimant decided to undergo a left total hip replacement. He did not recover as planned and had to undergo two further revision surgeries.
Allegation
The Claimant alleged that the Defendant had been negligent in three respects [8]. For the purposes of this article, I will only consider the first allegation, namely that, when he performed the left total hip replacement on 18 December 2009, 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.
The evidence
The judge heard evidence from both parties’ experts. The judge acknowledged that the Claimant’s expert was primarily a knee specialist although he had performed a number of hip replacements. The Defendant’s expert, however, focused on hip arthroplasties and was a former President of the British Hip Society. The judge concluded that: “Mr Manktelow [the Defendant’s expert] was better able than Mr Chatterji [the Claimant’s expert] to speak to the practice of hip specialists in England.”
Having considered the evidence, particularly the evidence from the revision surgeries, the judge concluded that the Defendant had permitted the acetabular component of the prosthetic hip to be prominent and that this was sufficient to cause irritation of the anterior structures, specifically the left iliopsoas tendon. The question was whether this was negligent or not.
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.” [29]. The Defendant’s expert said that “typically, once the socket has been positioned, the surgeon will run a finger or surgical instrument over the anterior aspect of the socket to ensure that is seated deep to the natural bony acetabulum.” However this practice would not always prevent the prominence of the anterior aspect of the cup.
The Defendant’s expert further gave evidence that, in his experience, many surgeons fail to ensure that the acetabular component is not prominent. He said “a number of surgeons make this error because surgeons are not as careful as they should be to ensure that the socket is deep to the anterior bone.”
The Defendant surgeon admitted that he did not check that the acetabular component did not protrude, because he had never been trained to do this in the three training sessions which he had attended on hip replacements.
The Claimant’s expert referred to the practice described by the Defendant’s expert of running a finger around the rim of the acetabulum to check that the component is not prominent, but accepted that he could not:
“refer to any textbook or handout from any presentation to demonstrate that his practice was accepted throughout the profession as standard either in 2009 or at present.”
On the ultimate question of whether the failure to ensure the acetabular component was prominent was a breach of duty, the Claimant’s expert insisted it was, whereas the Defendant’s expert was adamant that it was not. However, the judge found that the Defendant’s expert failed to adequately explain why he did not consider this failure to be a breach of duty:
“I was left with the impression that Mr Manktelow’s justification for asserting that there was no breach of duty was because he said so.”
The judge went on to find that:
“there is plainly a body of surgeons undertaking hip arthroplasties that holds the opinion that surgeons should ensure that (so far as possible) 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… In my view, the evidence justifies a finding that there is a body of surgeons that does not hold that opinion. At the time of the operation in question, Mr Cope was one such. Mr Manktelow’s experience of undertaking revision arthroplasties demonstrates that there are other surgeons who appear to adopt the same practice.” [41]-[42].
The Defendant argued that this conclusion provided the Defendant with a Bolam defence and that the Claimant was required to rely on Bolitho. The judge refused to accept this submission, finding that:
“In my 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.” [43].
He then concluded that:
“I reach 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. No good reason has been advanced for not taking this precaution. It has not been shown that the two views show that there is a nice balancing of different risks about which surgeons could reasonably disagree. The risk of impingement on the iliopsoas tendon was a well-recognised risk which could easily have been identified by visualisation and/or by palpation or running an instrument around the acetabular rim. If there was any risk in the placement of the cup, it was a relatively simple matter to remove the cup and replace it. There was no surgical or anatomical reason for running the risk in this case.”
The first allegation of breach of duty was therefore established. The judge went on to say that:
“I acknowledge that Mr Cope is being held to a standard of which he was unaware at the time. For the reasons I have sought to explain in this judgment, the evidence establishes that this is the standard that Mr Bradfield-Kay was entitled to expect from a competent hip surgeon in 2009.”
Comment
The judge’s approach to the Bolam and Bolitho tests was somewhat unusual in this case. This appears to be a reasonably straightforward example of a case in which, whilst the Claimant could not show Bolam negligence as the Defendant’s practice was reasonably widespread at the time of the negligence, the practice was without a logical basis, and therefore the Bolitho test operated to establish that the practice was negligent.
The judge rejected the submission, however, that Bolam and Bolitho required one to consider different things, instead finding that both tests required one to consider whether a practice is logical. This is somewhat contrary to the traditional understanding of the manner in which the respective tests operate and it is not clear why the judge took this approach. In practical terms, it made no difference to the outcome and, in every case, practitioners and experts will need to consider carefully whether a practice is logical, even if it is accepted by a body of medical opinion.
Also of interest is the fact that, although the Defendant’s expert was acknowledged as better qualified to opine on the practice of hip arthroplasty in the UK, the judge preferred the Claimant’s expert.
