Update: clinical negligence

In Ayesha Canning-Kishver (By Her Mother & Litigation Friend Shahana Kishver) v Sandwell & West Birmingham Hospitals NHS Trust [2008] EWHC 2384 (QB), the High Court applied the Court of Appeal's recent judgment in Bailey v Ministry of Defence [2008] EWCA Civ 883 (see 'Update: personal injury and clinical negligence', Solicitors Journal, 152/40, 21 October 2008) on causation; a case which further emphasised the correct test to apply in cases of medical causation where there may be a number of possible causes of injury but medical science is only able to identify that the negligence contributed to the injury more than negligibly, rather than that but for the negligence the injury would not have happened.

Expert evidence

In the instant case, the court had to consider both breach and causation based on the expert evidence. The claimant, who had been born prematurely and who suffered with cerebellar atrophy and consequential significant disabilities, claimed that the defendant's nursing staff in the neonatal intensive care unit had failed to react to the very significant drops in the claimant's heart and respiratory rates in the hours leading up to her collapse. She claimed that the cardiac collapse that she suffered as a result contributed to her cerebellar atrophy in a manner that was more than merely negligible.

Sir Christopher Holland gave judgment for the claimant. He concluded on the issue of breach that the nursing staff on the neonatal unit should, by 7.00am or even earlier, have urgently called for a doctor when they noticed the drastic falls in the heart and respiratory rates of an extremely acidotic newborn baby. He further concluded that, with timely medical intervention, the decline in the claimant's condition could have been stayed and reversed, without the need for the traumatic intervention that she underwent.

On causation, he considered that it had not been demonstrated that the claimant's brain injury had arisen purely from her prematurity but that, on balance, her cardiac collapse constituted a contribution to her cerebellar atrophy that was more than negligible. So, the claimant's claim succeeded, applying the Court of Appeal's Bailey decision. The defendant's expert neonatologist accepted that there was a range of possible causes of the claimant's injuries and the judge considered that, while the fact of residual possibilities militated against success for the claimant by reference to the 'but for' test, he was entitled to find, and did find, that on the balance of probabilities the contribution of the collapse occasioned by the breach of duty constituted a contribution to the atrophy that was more than negligible.

From the appeal court's reasoning in Bailey, it is apparent that in such cases the steps to take in considering medical causation are: (1) if the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed; (2) if the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will have succeeded; and (3) in a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the claimant will succeed.

A recent brachial plexus injury case starkly demonstrates how the outcome of a case may turn on the facts. In Beggs v Medway NHS Trust [2008] EWHC 2888 (QB), the claimant brought a claim for damages arising from a brachial plexus injury (OBPI) of his right shoulder, alleging that it was caused by the negligent manner of his delivery in 2002. The trial was on liability only. The case was primarily about a factual dispute as to the manner in which the claimant came to be delivered. The claimant had contended that he was delivered in a left occipitoanterior position ('LOA') i.e. head first with the back of his head (occipit) facing towards his mother's left thigh, with his right shoulder being uppermost and forward (anterior). The defendant's case was that the claimant was right occipitoanterior ('ROA'), so that his left shoulder was anterior and his right shoulder posterior.

The claimant argued that the midwife had applied improper traction to his head in order to deliver the shoulders and the right brachial plexus was, therefore, injured. The defendant contended that the injured shoulder was posterior and trapped on the sacral promontory before delivery of the head, thus causing the brachial plexus injury; they argued that this was supported by the fact of a long second stage of labour. The defendant said that the actions of the midwives and obstetricians made no difference to the outcome.

It was essentially agreed by the expert obstetricians for both sides that damage to a posterior shoulder is considered to be due to maternal propulsive force and not excess traction, citing a December 2005 guideline paper from the Royal College of Obstetricians and Gynaecologists.

Judge Hawkesworth QC accepted that the defendant's medical notes presented an accurate picture of events and could be relied upon, and that the midwives' evidence was to be preferred to that of the claimant's mother, who was simply mistaken. He found that the claimant was delivered ROA and the OBPI would have occurred in any event.

The case, therefore, turned on a single factual matter, which was determined in the defendant's favour. The case, however, is also of importance as demonstrative of wide acceptance that damage to a posterior shoulder brachial plexus is not likely to be caused by excessive traction.

Complex causation

In Omar Gossland (A Child By His Mother & Litigation Friend) v East Of England Strategic Health Authority [2008] EWHC 2175, the court also had to consider a factual dispute as well as expert evidence in determining whether there had been negligence in the management of the claimant's mother in 1991 resulting in the claimant's cerebral palsy due to sinovenous thrombosis ('SVT').

First, the claimant claimed that the obstetrician had used an unacceptable degree of force in his delivery by forceps. On this factual point, Mr Justice Plender concluded that the claimant had neither succeeded in proving that the obstetrician's foot had been on the mattress and that he had used his leg to gain traction while pulling the claimant through his mother's cervix, nor used an unacceptable degree of force in the forceps delivery.

Secondly, the claimant claimed that the staff had failed to heed the claimant's 'complicated' tachycardia and obstruction in the later stage of his mother's labour and had administered syntocinon, notwithstanding clear signs of fetal distress as evidenced by the cardiotocograph ('CTG'), rather than perform a fetal scalp blood sample, which would then have resulted in the need for a caesarean section.

The judge concluded that, while the CTG trace taken during labour did show a generally increased fetal heart rate, the trace was not such that it ought to have alerted a competent obstetrician to the presence of fetal distress requiring a fetal scalp blood sample or contraindicating the administration of syntocinon. It was not, therefore, negligent to administer syntocinon or to fail to perform a fetal blood sample. He concluded that a caesarean section had not been mandatory and, therefore, the failure to proceed to one sooner was not negligent; although he recognised that there was a conservative body of opinion that believed it could have been performed sooner.

Causation was complex but, in summary, the judge concluded that the claimant had also failed to prove that birth trauma was the cause of his SVT.

The importance of timings

CJL v West Midlands Strategic Health Authority [2009] EWHC 259 (QB) was also a cerebral palsy case, in which the court was required to consider what with appropriate treatment could and should have happened, the issue of timings, and the effect of those timings on the outcome.

The claimant, aged 21 at the time of the liability-only trial, sued the defendant for his cerebral palsy. It was accepted by the defendant that the obstetrician on call should have arrived no later than five minutes after being called by the midwives; she had not, and breach was therefore accepted. It was common ground that the claimant had cerebral palsy due to brain damage caused by a hypoxic-ischaemic insult at the end of labour, probably due to cord occlusion as his head descended through the birth canal. It was also agreed that delivery before 21.46 (with effective resuscitation within a minute) would have avoided any brain injury, and before 21.50 would have caused mild clumsiness only.

Mr Justice Tugendhat had to determine two issues of factual causation. First, by when should the midwives have called the obstetrician? The claimant contended 21.33 and the defendant by 21:35. Secondly, by when would delivery have occurred, i.e. (1) how long should the decision to operative delivery have taken; (2) how long should it have taken to prepare for forceps delivery; and (3) by when would delivery have been achieved?

The judge, in finding for the claimant, concluded on the state of the expert and factual evidence that: first, the obstetrician should have been called by 21.35 and should have arrived by 21.40; secondly, a reasonably competent obstetrician arriving at 21.40 would not have been outside the range of acceptable practice to take threee minutes to reach a decision to intervene, including performing a vaginal examination; and she should be ready to apply traction within five minutes of arrival; and, thirdly, delivery would have been achieved within a further four minutes (21.49), with resuscitation achieved at 21.50, six minutes earlier than was the case, with no serious brain damage resulting.

Possible avoidance

In a case involving orbital cellulitis, the court had to consider breach and factual causation and held for the defendant on both issues. In Claire Louise Jones v Conwy and Denbighshire NHS Trust [2008] EWHC 3172 (QB), Mr Justice Clarke had to consider whether the claimant's intracranial infection, craniotomy and epilepsy would have been avoided by a CT scan on her admission for orbital cellulitis, which would have resulted in surgery and an avoidance of such complications.

The judge concluded that it was neither unreasonable nor illogical not to perform an immediate CT scan on a child who had no significant reduction in visual acuity or ocular motility, or evidence of intracranial involvement, and in respect of when the CT scan was unlikely to alter the immediate clinical management (whether it showed preseptal infection, orbital cellulitis or a small subperiosteal abscess ('SPA')).

The judge also concluded that the scan if immediately performed would not have shown an SPA and, furthermore, the surgeon was unlikely to have intervened surgically in the absence of a sinister ophthalmological signs (of which he found there were none) in any event. Such a course of action, the judge held, was not unreasonable or illogical, even if there was a strong body advocating surgery in cases of SPA. The judge also held that, although it was unnecessary for him to determine this given his other findings, immediate surgery on the night of admission would have avoided the claimant's epilepsy.

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