Dr Hadiza Bawa-Garba - Medical liability in team-based, under-resourced health care settings:

Serena Fernandes
Dr Hadiza Bawa-Garba Blog Post Series 2: Gross Negligence Manslaughter and Doctors: Should doctors be criminally liable for patients’ death?



As outlined in the previous Blog Post in the Dr Bawa-Garba Series this case has caused widespread controversy as it is one of the most highly challenged and emotive medical negligence cases to have hit the UK medical profession. According to Jonathan Cusack, the Leicester Royal Infirmary neonatologist who was Dr Bawa-Garba’s educational supervisor after the incident, “the criminalisation of medical error when events are considered singularly rather than as a part of a highly complex system is going to seriously impede learning”. Therefore, the key question is do we need to reconsider the law’s role in cases of gross negligence manslaughter involving healthcare professionals?


This blog post will explore the current approach of gross negligence manslaughter law in England and Wales and, from a legal perspective, attempt to explain if Dr Bawa-Garba, and others in similar circumstances, should be criminally liable or blamed for the death of Jack Adcock.


Current approach in England and Wales: The Duty of Care Doctors owe to Patients


In the law of England and Wales, the general duty of care stems from a 1932 ruling of the House of Lords (the then highest court in the land). Lord Atkin established the principle of ‘duty of care’ in Donoghue v Stevenson (1932) in which he argued that a general duty exists to take reasonable care to avoid foreseeable injury to a “neighbour”. In order to bring a claim for negligence the claimant must establish that (a) they are owed a duty of care by the defendant (this could be the doctor treating the patient and the employer through vicarious liability); (b) the defendant breached the duty by failing to exercise reasonable care and (c) said breach caused the claimant’s injuries, which are not too remote.


The relationship between a doctor and patient is a well-established duty situation and the duty refers to the idea that a doctor must exercise reasonable care and skill in diagnosis, advice and treatment.


Breach of the duty of care: what is the standard of care that doctors owe patients?


Establishing a duty of care in a doctor-patient scenario is relatively straightforward in the sense that, as stipulated previously, it is a well-established duty situation. After a claimant has established that the doctor owes them a duty of care, the next step is to prove that said doctor has breached their duty of care.


In order to ascertain if a doctor has breached their duty of care owed to a patient it is necessary to establish what standard of care could reasonably have been expected. The case of Bolam v Friern Hospital Trust (1957) established that a doctor is required to meet the standard of care that can be expected of a doctor ‘skilled in that particular art’.  The Bolam test is still frequently considered in judgments, however, it has been subject to criticism because of the idea that within the same area of expertise there may be disagreements.


In case of Bolitho v City & Hackney Health Authority (1997) the House of Lords decided to adopt a more robust test and it has been said that this test is less deferential in comparison to the Bolam test. In Bolitho, according to Lord Browne-Wilkinson, the opinion of other expert witnesses, that is those who are skilled in the particular art, must also be ‘capable of withstanding logical analysis’.


In essence the Bolam + Bolitho form the test for the standard of care in medical negligence “in the law of England and Wales”. What does this mean for medical negligence cases in court? Firstly, the court must establish that the doctor being tried had acted in accordance with responsible medical opinion. If the doctor had not acted thus, then they will be liable. However, if the doctor did act in accordance with a body of responsible medical opinion, then the doctor may be liable in medical negligence if the claimant can prove that said body of medical opinion is ‘not capable of withstanding logical analysis’.


Causation: Did the doctor’s negligence cause the patient’s injuries?


If a patient claimant has established that a doctor owed them a duty of care and said doctor has breached that duty, it is then for the claimant to prove that the breach of duty caused their injuries. Causation is one of the most contested areas of law in medical negligence. This is because of the fact that there may be two possible causes of the patient’s injuries, the doctor’s actions and the patient’s pre-existing conditions as one example in particular. This is difficult because proving causation on the balance of probabilities is problematic. For example, a patient’s health could deteriorate before the doctor’s negligible actions and ultimately this would mean that the patient has lost the chance to be restored to full health.


The ‘but for’ test is the standard test for causation with the idea being but for the defendant doctor’s negligence, would the claimant have suffered this injury? Therefore, here the issue is that the claimant must demonstrate that their injury was caused by the doctor’s negligence, rather than something that would have happened anyway. In other words there must be a causal link between the doctor’s breach of duty and the deterioration of the patient’s health. The ‘but for’ test becomes more difficult when there are a number of causes for the patient’s injuries. For example, in Wilsher v Essex Area Health Authority (1988) there were five possible causes of the patient’s near blindness, one of them was the fact that he had negligently been given excess oxygen on two occasions. In this case the House of Lords found that the patient had failed to prove that it was the excess oxygen that caused his injuries.


Remoteness of damage can be perceived as another hurdle that the claimant patient has to prove that the type of damage suffered by said claimant is not too remote. The Wagon Mound (1961) is the leading case stipulating the test for remoteness and it argues that the type of damage must be foreseeable, even if the manner in which the damage occurred is not.


From a legal perspective is Dr Hadiza Bawa-Garba to blame for the death of Jack Adcock?


A conviction for gross negligence manslaughter is possible where it can be said that the doctor’s gross negligence caused the death of the patient. Gross negligence manslaughter is a contested area of law. For example, in R v Adomako (1995), in which an anaesthetist failed to notice that a tube had become disconnected during an eye operation and the patient suffered a cardiac arrest resulting in their death, the House of Lords held that negligence is ‘gross’ when it should be judged criminal. In R v Misa (2004) two junior doctors failed to notice the patient’s obvious symptoms of infection after said patient underwent a routine surgery. When the infection was diagnosed the patient had suffered toxic shock syndrome, which resulted in his death. The doctors were charged with gross negligence manslaughter and were unsuccessful in their appeal to the Court of Appeal.


From a legal perspective what does this all mean for Dr Bawa-Garba and her role in the death of Jack Adcock? In the Court of Appeal’s decision Dr Bawa-Garba was not the only person on trial, Ms Isabel Amaro the nurse on duty at the time and Ms Theresa Taylor (the ward sister) were also tried. On the 13th August the Court of Appeal had to reach a decision where they had to decide whether the three members of staff who were in charge of Jack’s care caused Jack's death by serious neglect which fell so far below the standard of care expected of competent professionals that it amounted to the criminal offence of manslaughter by gross negligence. Dr Bawa-Garba’s role in Jack’s death has been criticised by the prosecution due to the amount of failings that they attributed to her, as per the judgment:


  • The failure to properly review a chest x-ray taken at 12.01 pm which would have confirmed pneumonia much earlier;
  • The failure to properly to request the blood gas test;
  • The failure to ensure that Jack was given appropriate antibiotics timeously (more specifically, until four hours after the x-ray);
  • The failure to obtain the results from the blood tests she ordered on her initial examination until about 4.15 pm;
  • The failure to properly act on the obvious indications of both infection and organ failure from septic shock;
  • The failure to make proper clinical notes recording times of treatments and assessments;
  • The failure to express concerns to a consultant at any stage, other than when the senior consultant, Dr Stephen O'Riordan, arrived on the ward for the normal staff/shift handover at 4.30 pm, to whom she mentioned the high level of CRP and diagnosis of pneumonia. She said that Jack had much improved and was bouncing about. At 6.30 pm, she spoke to the consultant a second time but did not raise any concerns.


Despite the list of failures that were attributed to Dr Bawa-Garba for her involvement in the death of Jack Adcock, there were also many systemic failings that affected her on that particular day. For example:

  • A failure in the Hospital’s electronic computer system that day meant that, although she had ordered blood tests at about 10.45am, she did not receive said test results from the Hospital laboratory in the normal way. She was also without the assistance of a senior house officer. The results were delayed even though she tried her best to obtain them. She eventually received the results at 4.15pm.
  • A shortage of permanent nurses meant that agency nurses (who included Nurse Amaro) were being used more extensively than usual. Nurse Amaro failed to properly observe the patient and to communicate Jack's deterioration to Dr Bawa-Garba. At the time Dr Bawa-Garba was heavily involved in treating other children between 12 and 3pm (including a baby who needed a lumbar puncture), which highlights the staff shortage issue. Nurse Amaro also turned off the oxygen saturation monitoring equipment without telling Dr Bawa-Garba and, at 3pm, when Jack was looking better, the nurse did not tell her about Jack's high temperature 40 minutes earlier or the extensive changing of his nappies.
  • Dr Bawa-Garba also said that she had prescribed antibiotics for Jack at 3pm as soon as she saw the x-rays (which she agreed she should have seen earlier), but the nurses failed to inform her that the x-rays were ready previously and then failed to administer the antibiotics until an hour after she had prescribed them.
  • Dr Bawa-Garba gave evidence in her own defence and relied on her previous good character, including positive character evidence. Furthermore, she had worked a double shift that day (12/13 hours straight) without any breaks and had been doing her clinical best, despite the demands placed upon her.
  • She also called supportive expert evidence (from Dr Samuels) to the effect that septic shock was difficult to diagnose and Jack's was a complicated case in which the symptoms were subtle and they were not all present.
  • Reliance was also placed on the conduct of Nurse Amaro (including the delay in administering the antibiotics Dr Bawa-Garba prescribed), the problems with the computer system and the administration on the ward of enalapril (for Jack's unrelated conditions). It was established at the trial that the administration of the enalapril may have contributed towards his death but did not cause it.


Dr Bawa-Garba won the appeal against striking her off the Medical Register as the one-year suspension was restored. However, even though systemic failings or the failings of others may reduce Dr Bawa-Garba's culpability, they were unable to reduce her failures, which meant that her personal responsibility did fall below a level, which the jury had found was “truly exceptionally bad” according to Justice Nicol.

It was argued that to treat the systemic failings to reduce her culpability was not consistent with the verdict of the jury. The Medical Practitioners Tribunal Service (MPTS), an adjudicating body that makes independent decisions about complaints made against doctors in the UK, issues useful resources for cases involving doctors, lawyers and medical defence organisations. According to paragraph 103(c) of the MPTS Sanctions Guidance, “where a patient dies sooner than he would have done because of a series of failings over the course of some hours for which the registrant has to take personal responsibility, and those are failings which the Tribunal had to treat as truly exceptionally bad, it would require rather stronger circumstances than those present for suspension to be sufficient to maintain public confidence in the profession and its procedures for maintaining its professional standards”.


Dr Bawa-Garba played a significant role in the death of Jack Adcock. However, the fact that the Court of Appeal dismissed the systemic failings of others involved in this case makes the future of causation in medical negligence unclear. This is because, as seen in this controversial case, drawing the lines of causation can be a difficult task and said task can be made even more difficult when other intervening factors and wider issues such as austerity (meaning a reduction in staff levels) have affected the end result, the death of the patient. This case has really tested the boundaries of causation, but ultimately the Court of Appeal based their decision on the current law in place. This did not only cause widespread outrage in the medical profession, but also indicates that doctor’s acts’ and their level of culpability are interdependent and still seen as the most important factor in negligence cases. This ‘outrage’ seen in the medical profession as a result of the Court of Appeal’s decision will be the topic of the next Blog Post in this Series, as it will address the implications for the medical professionals and their reactions.