King's / Queen's Bench Division of the High Court

KB-2023-001305 - [2025] EWHC 2488 (KB)

Fecha: 07-Oct-2025

NEGLIGENCE AND DUTY OF CARE

28.

The criticisms made on behalf of Sidney are directed solely towards the medical (and not the surgical) practitioners responsible for his care at Yeovil and Bristol. The Particulars of Claim made wide ranging allegations of negligence but the sole remaining complaint is now that they failed to recommend that a very prompt USS scan of Sidney’s head should have been carried out after the negative findings on the USS scan carried out at Bristol on his abdomen.

29.

The starting point for the test to be applied is that formulated in the familiar case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In short, a health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners may adopt a different practice.

30.

The test was subsequently refined in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 in which the House of Lords held that while a doctor may be acting in accordance with a responsible body of medical opinion, a court can still find him or her negligent if that opinion is not otherwise logically defensible or reasonable.

31.

Sidney’s case, supported by Dr Conway, is no longer that an USS of the head ought to have been carried before the procedure in Bristol failed to confirm the primary diagnosis of pyloric stenosis but that such an USS should nevertheless have been planned to take place within a day or two thereafter.

32.

The central argument in support of this conclusion is that the failure to confirm the presence of pyloric stenosis left a diagnostic gap. The progressive centile increase in Sidney’s head circumference (combined with the history of weight loss, projectile vomiting, irritability and poor head and neck control) meant that it was illogical not thereafter to pursue the option of performing an USS of the head to confirm or exclude the possibility that an intracranial pathology lay at the root of his problems.

33.

The defendants, however, contend:

(i)

The decision to keep Sidney’s head circumference under review fell comfortably within the range of reasonable decisions open to the medical paediatricians. In particular, all other signs had fully resolved by the time of Sidney’s discharge home.

(ii)

Furthermore, even on the evidence of Dr Conway, the criticism of the paediatricians was limited to the complaint that they should have arranged for a USS of the head to be carried out very soon. However, in response to questions from the bench, he confirmed that this duty would, for example, have been fulfilled if a scan had been organised to take place on Monday 12 January which was the day after Sidney’s mother caused the injuries which form the subject matter of the claim. He conceded that it was not negligent per se to have discharged him from hospital in the intervening period. The alleged breach did not, therefore, involve a duty which comprehended the actual damage suffered and was not legally causative thereof.