Clinical negligence update

In Nasir Hussain v Bradford Teaching Hospital NHS Foundation Trust [2011] EWHC 2914 (QB), Coulson J had to consider the approach to be taken in a case of cauda equina syndrome (CES) where the court had to determine what difference a 48-hour delay in surgery was likely to have made to the outcome.

The claimant had undergone surgery for a degenerative disease of his spine in 2005. He was admitted to the defendant hospital on 27 August 2006 after developing progressive lower back symptoms from June 2006. By midday the following day he had lost sensation below the waist and by about 2pm it became apparent that his bladder was full. The following morning, CES was considered and a subsequent MRI scan the next day, 30 August, confirmed the diagnosis of CES. Surgery was carried out later that day. The claimant was left with a complete loss of sensation from his groin downwards, and bowel and bladder incontinence, the latter requiring an indwelling catheter.

The defendant admitted breach of duty in that there was inadequate treatment of the claimant on the basis that, on the morning ward round the day after admission, there was a failure to perform a neurological examination, a failure to order an MRI scan and an absence of urinary output monitoring. As to matters of fact, the judge concluded that the claimant had not displayed signs of CES on initial admission but had developed rapid onset CES early the next morning, such that complete CES (CESR) had probably been reached by the time of the ward round and, at the latest, by midday. The judge also found that the culpable delay was a period of 48 hours, the period agreed by the experts in their joint statement. He concluded that the operation should have taken place late on 28 August or early on 29 August, not late on 30 August.

The key remaining issue that the court had to determine was what difference, if any, an operation 48 hours earlier would have made to the claimant's outcome.

The judge noted that what the court was trying to determine in such cases was what would have happened if an event which, by definition, did not occur, had in fact occurred (Bolitho v City and Hackney Health Authority [1998] AC 232). He cited as the best guidance on this aspect of causation the judgment of Otton LJ in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104, which set out important propositions of law, namely: (1) the claimant had the burden of proving causation; (2) causation was a question of past fact, to be decided on a balance of probabilities (Mallett v McMonagle [1970] AC 166); (3) the claimant would succeed in full if he could prove that the negligence was the sole cause or a substantial cause of, or that it materially contributed to, the damage (Bonnington Castings v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1); (4) if he failed to cross this threshold, he would fail to recover any damages (Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428); and (5) a claimant could not recover damages for the loss of a chance of a complete or a better recovery (Hotson v East Berkshire District Health Authority [1987] AC 750).

The judge considered that, as in Tahir, it was not sufficient for the claimant to show that delay materially increased the risk of injury or that delay can cause injury: he had to go further and prove that some measurable damage had actually been caused by the delay. The judge referred to the decision of Akenhead J in Oakes v Neininger and Others [2008] EWHC 548 (QB), another CES case, in which absent the negligence operation would have taken place before the claimant had reached CESR and would have made a critical difference to the outcome. However, in Oakes the court also commented obiter on the hypothetical situation of an operation occurring after CESR had been reached and concluded that, following Tahir, it was not sufficient to show that earlier surgery would have given the claimant a chance of some improvement; on a balance of probabilities earlier operation would have to result in a discernible, significant or relevant improvement.

In finding against the claimant, the judge found that, on the expert evidence, even if the necessary surgery had been carried out 48 hours earlier, the prospects of the claimant having a good recovery were less than 50 per cent. This was fortified by the fact that such surgery would still have been 12 hours or more after CESR had set in, which was a reflection of the very rapid deterioration during the early hours of 28 August.

In addition, the judge rejected the claimant's 'fall-back' position that, even if he could not show that surgery would have led to a good recovery, he could demonstrate that surgery would have left him in a better condition than he was in now, on the basis that there was no evidence of 'discernible, significant or relevant improvement' that the delay in surgery denied the claimant, as per Oakes.

Medical causation

In Amy Ludwig v Oxford Radcliffe Hospitals NHS Trust [2012] EWHC 96 (QB) the court had to determine what the medical cause of the claimant's cerebral palsy was. The claimant had been born in 2002 prematurely at 31 weeks' gestation and concerns arose regarding her development at three years old. An MRI scan at that time revealed periventricular leukomalacia (PVL: damage to the white matter around the ventricles of the brain). The claimant claimed that at the time of her birth her mother was suffering with a group B streptococcus infection which led to chorioamnionitis and that the PVL was as a result of a fetal inflammatory response (FIR) to this infection.

There was no dispute that the claimant suffered with PVL and that this was the cause of her cerebral palsy, but there was a key issue as to what the medical cause of her PVL was. Possible causes included: (a) intrauterine hypoxic ischaemia; (b) feto-maternal infection; (c) a FIR due to maternal chorioamnionitis; (d) post-natal hypocarbia; and (e) an unknown cause. The parties agreed that (a) and (b) were not applicable in this particular case.

The claimant's case on breach was that a high vaginal swab should have been properly reported such that her mother's treatment (in a different hospital) would have been different, by way of intravenous antibiotics, which in turn would have avoided the FIR that led to the PVL.

Holroyde J accepted that more than one cause could have contributed to the PVL and accepted the claimant's argument that it would be sufficient for her to prove that a FIR made a material contribution to PVL: she did not have to prove FIR was the only cause (Wilsher v Essex Area Health Authority [1988] 1AC 1044 not followed). However, to succeed, the claimant also needed to prove that her mother had suffered with chorioamnionitis, as without that she was not able to establish that FIR played a role in the eventual PVL. On all the evidence, the judge concluded that the probable cause of the claimant's PVL was one that could not be identified, and thus the claimant's case failed on medical causation.

The judge added that, even if the claimant had succeeded in establishing the medical cause of the PVL as being FIR, and notwithstanding the admission of breach of duty by the defendant, it would not have made any difference to the management of the claimant's mother and, therefore, would not have prevented the claimant's injuries, so the claimant would in any event have failed on factual causation.

Timing considerations

Two recent cases concerned the timing of the cause of the claimant's injury and considered the position when medical science was unable and able to identify when injury occurred respectively. Nathan Popple v Birmingham Women's NHS Foundation Trust [2011] EWHC 2320 (QB) was a case in which it was claimed that a breach of duty materially contributed to the claimant's damage, but in which medical science was not sufficiently advanced to determine precisely when such damage occurred.

The claimant claimed that the defendant's midwives negligently managed labour and the claimant's delivery and that, as a consequence of that negligence, the claimant suffered intrapartum asphyxia causing damage to his brain, as a result of which he now suffered from severe dyskinetic cerebral palsy.

The judge, Oliver-Jones QC, concluded on medical cause that the insult giving rise to the 'acute profound' or 'acute near total' hypoxic-ischaemic injury was asphyxiation leading to circulatory collapse and that no cause other than compression or occlusion of the umbilical cord had been advanced as the cause of the asphyxial insult leading to the brain damage.

The experts agreed that the damage had probably occurred in the 15 to 20 minutes immediately before birth and that, if that were so, there would have been a period of about five to ten minutes of profound bradycardia before irreversible brain damage had occurred. However, it was not possible to identify when such bradycardia began because of a failure by the midwives to monitor the cardiotocograph (CTG) properly.

The claimant submitted that, on the basis that the court was to find that the claimant should have been delivered at least five minutes earlier than he was, he would then have been saved from five minutes of damaging hypoxia and, on any view, relying upon Bailey v Ministry of Defence [2008] EWCA Civ 883, as medical science was only able to provide a bracket working backwards from the known time of birth and was not able to identify exactly when the damage had occurred, this was plainly a material contribution, which was more than negligible, to the damage.

The judge concluded that, in not detecting the bradycardia, the midwives had failed to monitor the CTG continuously, as they should have, and that an episiotomy or instrumental delivery should have occurred at least five minutes before delivery in fact occurred; in accepting the claimant's case on causation, the breaches therefore materially contributed to the brain injury and the claimant's case was made out. The case is being appealed to the Court of Appeal.

In Andrea Lyndon v Royal Fee Hampstead NHS Trust [2011] EWHC 2904 (QB), the court had to consider whether the negligent failure by a paediatric senior registrar in 1993 to take steps to diagnose rheumatic fever (RF) and treat the then 15-year-old claimant with prophylactic penicillin antibiotics resulted in: (a) the claimant contracting infective endocarditis (IE) and thereby suffering a stroke on 26 August 2007 (the larger claim); and (b) a probable need for heart valve replacement surgery in the future (the smaller claim).

The defendant accepted that, if the court was to find that there had been no permanent valve damage caused by the 1993 episode of RF, the subsequent valvular damage must therefore have been due to recurrent episodes of RF which would have been prevented had prophylactic penicillin been properly given and that, in such a situation, IE followed as a consequence.

The judge, Sweeney J, in determining whether the stroke and need for heart surgery would have been avoided with proper treatment, concluded that: (a) the claimant carditis in 1993 was mild and transient, and she fell into the 70 per cent category of patients in whom the initial episode of RF did not result in any permanent damage to the heart; and, (b) thereafter, the claimant had suffered one or more subclinical episodes of RF.

The judge therefore concluded in the claimant's favour that these findings were decisive to the issue of causation, in that the permanent damage to the heart, which in turn had led to IE and the stroke, and the need for valve replacement surgery, had been caused by recurrent RF that would have been avoided absent the negligence.