UK – 20th January, 2020: A recent High Court decision provides guidance on the threshold that needs to be met with respect to issues of breach and causation in a medical negligence context.
Facts
The claimant, aged eight-and-a-half, suffers from a right-sided hemiplegic cerebral palsy. The cause of her condition was a perinatal arterial ischaemic stroke, affecting the left basal ganglia region of her brain.
The claimant brought a claim, by her litigation friend and mother (DE), for damages for personal injury and consequential financial loss on the basis that, but for the negligence of the defendant’s medical staff on two occasions during her mother’s antenatal care, the stroke would have been avoided.
Issues
To assess whether the defendant had been in breach of its duty to the claimant, the court had to consider whether a finding of a retroplacental haematoma at 16 plus weeks gestation and/or episodic right sided abdominal pain and pins and needles affecting the arms at 30 weeks plus 2 days gestation, were a significant finding to mandate senior obstetric review, consultant-led antenatal care and serial growth scans throughout the pregnancy.
The court also addressed the claimant’s case on medical causation. The issue was whether the cause of the stroke was embolisation of placental debris into the fetal arterial circulation.
Decision
The court found that the claimant’s case failed at both hurdles of breach of duty and causation.
By using the Bolam test, the court found that the claimant could not prove that no reasonably competent obstetrician would have acted in the way that the defendant’s medical staff did. The court considered the local trust guidelines which did not mandate referral, when determining there had been no breach of duty.
On medical causation, the court accepted that it remained possible that the stroke was due to a placental embolus but that the scientific evidence showed that there was a vast range of other, alternative factors which could have caused the stroke, exclusive to the defendant’s alleged negligence. The court also considered the interval of time, of either 21 hours or 31 hours, before the claimant demonstrated any abnormal neurological signs and the fact that the cranial ultrasound scan at around 42 hours was seemingly normal, in determining that causation was not established.
The decision highlights that in cases where it is not possible to ascertain whether the alleged breach of duty was the cause of the loss, and an array of other factors could equally be the cause, defendants may succeed in relying on causation defences.
Source: https://www.lexology.com/library/detail.aspx?g=b9c49da6-d764-47bb-b5f5-05394e3aa705