Understanding Bolam and Bolitho in Complex Cardiac Surgery

The Bolam Foundation and Bolitho Refinement

In cardiac clinical negligence litigation, determining whether a clinician’s actions crossed the threshold from a reasonable error to a breach of duty is a fundamental challenge. The legal framework defined by Bolam v Friern Hospital Management Committee [1957] and the refinement in Bolitho v City and Hackney Health Authority [1998] governs this assessment. For legal practitioners and expert witnesses, navigating these tests requires a rigorous understanding of both established clinical practice and the limits of expert testimony under CPR Part 35.

The Bolam test established that a practitioner is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion. In cardiology, this means that if a cardiologist or cardiac surgeon can demonstrate that a respected body of their peers would have followed the same course of action—such as the choice of a specific valve intervention or the management of a perioperative complication—they may successfully defend their conduct against a claim of breach.

The Bolitho decision introduced a critical nuance: the court is not bound by expert opinion that it deems logically indefensible. If the evidence does not withstand logical analysis, or if the procedure lacks a sound clinical rationale, the court may conclude that it does not represent a responsible body of medical opinion. In complex cardiac surgery, where decision-making involves balancing high-risk variables, the expert witness must explain the clinical logic behind a decision, rather than merely stating that other practitioners might have made the same choice.

Clinical Contexts for Legal Scrutiny

Legal challenges in cardiac surgery frequently centre on clinical decision-making that deviates from established pathways. Common areas of dispute include:

• Procedural Planning: Alleged failures to perform adequate pre-operative risk stratification or optimization in complex structural heart interventions or chronic heart failure management.
• Intraoperative Complications: Disputes regarding the management of intraoperative events, such as coronary artery perforation or dissection, where the standard of care is assessed against the range of acceptable interventional practice.
• Informed Consent: Following Montgomery v Lanarkshire [2015], the focus has shifted to what a reasonable patient would consider significant. This is particularly relevant in complex surgery where the risk of catastrophic outcomes must be communicated effectively.
• Diagnostic Pathways: Disputes arising from alleged delays in diagnosis, such as the interpretation of ECGs in the context of atypical presentations or the application of serial troponin testing protocols.

The Role of the Expert Witness under CPR Part 35

Under CPR Part 35, the expert witness owes an overriding duty to the court to provide objective, unbiased evidence. In cases involving cardiac negligence, this duty requires the expert to:

• Identify the standard of care relevant at the time of the alleged breach.
• Clarify where clinical judgement was exercised within a spectrum of acceptable practice and where that judgement departed from professional norms.
• Provide a reasoned account of why a particular approach was, or was not, logically defensible under the Bolitho framework.

When experts are instructed, they should address the evidence of clinical risk in the context of the patient’s specific presentation. If a case proceeds to an expert discussion under CPR 35.12, the resulting joint statement should articulate areas of agreement and disagreement. It is important to distinguish this from the use of a Single Joint Expert (SJE) under CPR 35.7, where instructions are governed by CPR 35.8. An SJE is a court-directed appointment intended to streamline litigation by providing a single report, and they do not engage in the joint statement process applicable to party-appointed experts.

Common Pitfalls in Cardiac Litigation

A primary challenge in cardiac litigation is the retrospective nature of the evaluation. Experts must avoid hindsight bias—the tendency to judge a clinical decision as negligent simply because the outcome was adverse. A clinical decision that aligns with recognised professional frameworks may still result in a poor outcome; the legal task is to determine whether the decision was reasonable at the time, given the information available to the clinician.

Furthermore, guidelines are generally viewed as frameworks rather than rigid rules. A departure from a pathway does not automatically constitute a breach of duty if there was a justifiable clinical rationale for that deviation. The expert’s task is to evaluate whether that rationale stands up to logical scrutiny.

Practical Guidance for Instructing Solicitors

To assist in the preparation of a report, solicitors should ensure that the instruction is focused on the clinical thresholds in dispute. Key steps include:

• Comprehensive Records: Ensure that all relevant data, including raw ECGs, imaging (e.g., coronary angiograms), and laboratory results, are available.
• Specific Questions: Pose questions that focus on the decision-making process at specific points in time, rather than seeking a general opinion on the overall outcome.
• Proportionality: Given the costs of litigation, early identification of whether the dispute is one of fact or one of expert opinion is essential for effective forensic assessment of expert competence.