Adding insult to injury

In Megan Baynham v Royal Wolverhampton Hospitals NHS Trust [2014] EWHC 3780 (QB), Justice Goss had to consider the cause of the claimant’s (M) injuries of asymmetric quadriplegic cerebral palsy, learning difficulties and epilepsy after her delivery by emergency caesarean section (CS) at 28 weeks’ gestation following a partial placental abruption. 

Negligent timekeeping 

M claimed that negligent management of her mother led to a 40-minute delay in delivery, resulting in a greater severity of brain injury than would otherwise have occurred. The defendant hospital (W) admitted that, due to system faults, delivery should have occurred at 00:15am, 30 minutes after the decision for CS had been made, rather than at 00:40am, a delivery delay of 25 minutes. 

W, however, disputed that an additional 15-minute delay was the examining registrar’s fault. M claimed the registrar should have decided to perform a CS within a minute of commencing his examination at 23:30am. Preferring W’s expert evidence on this issue, the court concluded that the registrar had taken appropriate steps in considering the history, assessing the fetal heart rate (FHR) with a Pinard stethoscope and making an assessment; that this should have taken a maximum of 10 minutes, and so been completed by 23:40pm; and that M should have been delivered by 00:10am, a negligent delay of 30 minutes.

W further disputed that any delay had caused any injury. The parties’ experts had agreed the abruption had probably started earlier in the evening and extended when M’s mother’s abdominal pain increased. The court found this to be at about 22:50pm and concluded that the major part of the abruption (and its hypoxic effects) had occurred by 22:50pm. 

It was also agreed that the abruption had two major effects: first, it caused a loss of autoregulation, which meant that M’s brain was susceptible to blood pressure changes; second, it caused hypoperfusion, which in turn caused cerebral hypoxia-ischaemia. After M was born, the loss of the protective effect of autoregulation against blood pressure changes during reperfusion resulted in germinal matrix haemorrhage - intraventricular haemorrhage (GMH-IVH) occurring bilaterally; these IVH in turn resulted in consequential haemorrhagic venous infarction, progressive ventricular enlargement, porencephalic cyst formation and periventricular leukomalacia (PVL).

M asserted that the delay in delivery and consequential avoidable hypoxia-ischaemia had affected the severity of the reperfusion injury, the extent of the venous infarction and the extent of the bilateral PVL, materially contributing to M’s cerebral palsy. W asserted that the abruption had caused the loss of autoregulation which, during reperfusion, had resulted in the IVH, which in turn was responsible for all of the eventual injuries. W argued that there was no evidence to prove, on a balance of probabilities, that the avoidable hypoxia-ischaemia had had any material effect on the outcome.

The judge accepted that the GMH-IVH could account for all of M’s damage and concluded that M had not established, to the requisite standard, that there had been an additional insult in the 30 minutes before delivery. This conclusion was supported by: 

• the presence of a stable FHR, reasonable renal function and absence of deterioration in those 30 minutes; 

• relative ease of resuscitation; 

• stable neonatal blood pressure; 

• M not being microcephalic and having a markedly asymmetric injury. 

All the above features were deemed consistent with a complicated, bilateral GMH-IVH that was event, not time, mediated.

Negligently-induced injuries

In Christine Reaney v University Hospital of North Staffordshire NHS Trust and Mid Staffordshire NHS Foundation Trust [2014] EWHC 3016 (QB), the court had to consider the legal approach to ascertaining the consequences of admitted negligence superimposed upon a pre-existing disability.

Justice Foskett considered the extent to which negligently-induced pressure sores and their sequelae (osteomyelitis, flexion contractures and a hip dislocation), which the claimant, R, developed during her hospitalisation at the defendants’ (S) hospitals, made her underlying condition of transverse myelitis (causing T7 paraplegia) worse than it would have been but for their development.

The parties agreed the approach the court should take was to consider the ‘but for’ scenario, namely what would have been R’s likely position but for the pressure sores, their sequelae, and the ‘post-pressure sores’ scenario. 

S asserted that they should not be liable to compensate R for any loss occurring before their admitted breaches of duty, nor those that occurred absent their breaches of duty, as a wrongdoer must take a victim as he finds him (Lord Reid in Baker v Willoughby [1970] AC 467 at paragraph 493). S said they were liable only to compensate R for the additional disability they had caused, over and above her pre-existing disability. Foskett J noted S did not assert that, if the judge found against them on causation, he should nonetheless still consider that R give credit for the notional costs to her of having transverse myelitis in any event.

The court generally accepted S’ submissions that a defendant may only be liable to compensate a claimant for the damage it has caused him, or to which it has materially contributed. However, the court considered that the case reflected the principle that a tortfeasor must take his victim as he finds him and, if that involves making the victim’s current damaged condition worse, then the tortfeasor must make full compensation for that worsened condition (see Paris v Stepney Borough Council [1951] AC 367, from which is derived the proposition that the “loss of an eye is significantly worse for a one-eyed man than a man with full eyesight”). The judge concluded S had made R’s position materially and significantly worse than it would have been but for the negligence, such that she now required a 24-hour care package and accommodation.

The judge further remarked that, even if he had doubts about the issue of causation in the ‘but for’ sense, he would have been inclined to find that S had ‘materially contributed’ to the condition that caused the need for the care package, and the lack of any joint or concurrent tortfeasor, against whom S might have a contribution claim, was no answer to a full claim against S (see Bailey v Ministry of Defence [2009] 1 WLR 1052).

Anticipated or negligent complications

In Janet Laughton v Salah Shalaby [2014] EWCA Civ 1450, the Court of Appeal (Lord Justice Longmore, Lord Justice McCombe and Lord Justice Vos) considered an appeal against a finding in favour of the defendant surgeon, S, relating to a hip operation which resulted in the claimant (L) suffering ongoing painful loss of mobility. At trial, L had asserted that S had failed to reattach the gluteus medius muscle, either at all or properly. S asserted, and the court concluded, that S had reattached the muscle and that subsequent avulsion (detachment) was a recognised, non-negligent complication of the anterolateral method of hip replacement. While S had performed 3,000 of these operations, he had also been investigated by the General Medical Council (GMC) for incompetence, with conditions placed on his registration.

On appeal, L criticised the trial judge on three main grounds: 

• the risk of non-negligent avulsion was so rare as to be statistically insignificant (1 in 200 cases);

• he failed to address matters of S’s probity; and 

• he should have admitted the findings of the GMC’s report as evidence of incompetence in other cases, albeit not just hip cases, akin to the principle of admissibility of bad character evidence in criminal cases.

The appeal court dismissed the appeal on the following grounds: 

• there was nothing to differentiate L’s operation from any other operation in which avulsion had occurred and therefore lead the court to conclude it had occurred negligently;

• S’ lack of probity was relevant to credibility of a witness but not incompetence; a lack of probity (not of the “most serious kind”) did not make it more probable than not that S was negligent in his performance of the procedure; 

• evidence of incompetence in other cases was only admissible if relevant and, traditionally, it was only ‘similar fact’ evidence that was relevant (O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534). 

In criminal proceedings, the principle of the admissibility of bad character evidence is provided by statute. However, the proposition that evidence of various types of incompetence was to be admissible in professional negligence cases to enable inferences of negligence (as asserted by L) went well beyond the criminal law statutory provisions and did not represent the law. In any event, the criminal law position did not apply to civil proceedings, since the former represented a statutory change to common law. The GMC report did not prove S had been negligent during L’s operation. The court considered that the way L might have succeeded was to show S had performed other similar surgery with a similar complication.  SJ

Dr Jock Mackenzie is a partner and solicitor-advocate at Anthony Gold

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