In Bradfield-Kay v Cope, an orthopaedic surgeon was sued for negligence arising out of a hip replacement carried out at a private hospital in 2009. The case is an interesting application of the Bolam and Bolitho criteria, in particular the question whether a particular clinical practice can be said to be based on a logical foundation.
Mr Bradfield-Kay, an engineer by trade, had a history of osteoarthritic changes in both hips. On 6 November 2009 Mr Cope, an orthopaedic surgeon, carried out a right total hip replacement. This was successful and Mr Bradfield-Kay recovered swiftly. Six weeks later, on 18 December 2009, Mr Cope carried out total left hip replacement. This was less successful. Mr Bradfield-Kay complained of serious thigh and groin pain. He subsequently underwent two left hip revisions, under different surgeons, in 2012 and 2016.
Mr Bradfield-Kay brought a claim against Mr Cope alleging negligence arising out the left hip replacement. In particular, he complained that Mr Cope had allowed the acetabular component of the prosthetic hip to be fixed prominently and in such a position that the iliopsoas tendon caught on it, causing him to develop iliopsoas tendonitis. He also complained that Mr Cope used an incorrect femoral component and that, at a consultation in August 2010, he failed to record or investigate his groin pain. Mr Cope denied negligence. The matter came before HHJ Sephton QC (sitting as a judge of the High Court) for a trial on the issue of breach of duty.
As regards the position of acetabular component, the parties’ respective orthopaedic experts (Mr Chatterji and Mr Manktelow for Mr Bradfield-Kay and Mr Cope, respectively) agreed that the component had been left in a prominent position and it was the likely cause of Mr Bradfield-Kay’s symptoms. They also agreed that orthopaedic surgeons should ensure that the component was not placed in a position that could interfere with the iliopsoas tendon.
Mr Chatterji gave evidence that it was easy for a surgeon to tell whether the acetabular component was prominent. He explained how a check could be carried out. He was, though, unable to refer to any textbook, or handout from any presentation, to demonstrate that his practice of checking was accepted throughout the profession as standard in 2009, or at present.
Mr Cope explained that he underwent three separate training sessions when he was taught how to undertake a total hip replacement. He was not taught to check this. Mr Manktelow gave evidence that, in his extensive experience of hip replacement revision surgery, he had seen prominent acetabular components “quite frequently”. He did not consider Mr Cope to have been in breach of duty. The case on behalf of Mr Cope was therefore that his practice of not checking was in line with that of a body of surgeons and therefore not negligent.
This argument was rejected. HHJ Sephton QC found that, when he placed the acetabular component, Mr Cope did not ensure that it could not interfere with the iliopsoas tendon. This was because he had never been trained to do so and it did not cross his mind. There was a body of surgeons who likewise did not do so. However, there was no logical basis for this practice. As he put it: “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.” Mr Cope was therefore found to have been negligent.
HHJ Sephton QC also found Mr Cope had used an incorrect femoral component. But he rejected the allegation that he had failed to record or investigate Mr Bradfield-Kay’s groin pain in August 2010. These points turned rather more on the facts of the particular case.
Daniel Clarke, a clinical negligence barrister at Outer Temple Chambers commented on the case;
The case is a good illustration of the principle (established at least since Bolitho) that acting in accordance with a body or practice or opinion does not necessarily constitute a defence for a clinician, if there is no “logical basis” for the practice. The court, in fact, saw the requirement of a logical basis as an aspect of both the Bolam and Bolitho tests.
In this particular case, the ease with which the position of the component could have been checked, the lack of a good reason not to check, and the fact that the experts agreed that surgeon ‘should’ do it, led to the court to determine that there was no logical basis for not doing it. This was despite the fact that performing such a check formed no part of the surgeon’s training or instruction in how to carry out the operation and that it was a standard Mr Cope was unaware of at the time.
Click here to stay in touch with the team at Outer Temple, receive new post alerts and get invited to our events.