Tuesday, 21 June 2016

Cerebral Palsy and Material Contribution

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Following my previous posts on material contribution in clinical negligence and its relevance to cerebral palsy claims, comes an interesting decision by Cheema-Grubb J in DS v Northern Lincolnshire & Goole NHS Foundation Trust [2016] EWHC 1246 (QB). 

The Parties' Contentions

The Judge summarised the parties' respective positions as follows:

"4. The case brought on DS's behalf alleges that there was negligent delay at the end of his mother's labour in that the midwives failed to realise that his heartbeat had dropped to dangerous depths until 1500 hours; that this was because inadequate monitoring was being carried out: that once they discovered this the labour should have been managed in such a way that medical assistance was called for minutes before it was and that the doctor who then arrived should have made the decision to deliver by emergency caesarean section at least a couple of minutes before she did. But for the negligent delay DS's delivery would have been achieved 6 or 9 minutes before 1529 hours and the saving of time would have been sufficient to reduce the effects of the period of damaging hypoxia to a materially less damaging injury.

"5. The Trust defends the claim on both negligence and causation. It denies that its midwives or doctor acted in breach of their duties or that they delayed any appropriate and reasonable step in FS's care. Also medical causation cannot be established because on the balance of probabilities even an interval of ischaemic hypoxia shorter by 6-9 minutes that than which DS sustained would have caused essentially the same injury and the only way to avoid it would have been for DS to have been delivered within 10 minutes of the hypoxia starting."


The Judge found against the Claimant on its primary case on breach of duty but went on to consider issues of causation:

"150. Given the findings I have made as to negligence, namely that there was a maximum of 3 minutes of negligent delay from 1504 to 1507 only, the evidence of the remaining experts, particularly those concerned with causation, is strictly of less relevance, as it has not been contended that a saving of 3 minutes would have materially affected the degree of injury. However, lest my findings on breach of duty are challenged subsequently I will go on to consider the case on causation both on the basis of a 6-9 minute negligent delay and a 3 minute negligent delay."

After reviewing the expert and other evidence the Judge concluded as follows:

"196. On the basis of saving 6-9 minutes of negligent delay:

i) It is agreed that DS's motor functions would not be materially different.

ii) Although there is understood to be a relationship between the duration of an acute profound hypoxic episode and the severity of brain injury caused, the relationship is not simple to define. The Claimant was apparently a healthy and robust foetus. He suffered a long period of hypoxia, at least 39 minutes (1500-1539) but more probably longer. Making an allowance of the generally accepted 10 minutes of non-harmful hypoxia (as described by the paediatric neurologists), he survived at least 29 minutes of injurious hypoxia but displays less profound injury than might be expected after that period of exposure. His neurological disabilities are atypical and not at the most severe end of the spectrum.

iii) While common sense suggests that a reduction of 6-9 minutes of exposure (as a proportion of the whole) would have made a difference to DS's cognitive abilities it is difficult to be certain, whether it would have been a material difference. This is especially so when DS's atypical radiology results are taken into account however, I have to apply a lower threshold of proof, namely the balance of probabilities....

vii) I am persuaded that if birth had been as much as 9 minutes earlier, a substantial proportion of the total hypoxic insult would have been avoided and although I cannot calculate it exactly I am satisfied on the balance of probabilities that it would have made a material difference to DS's cognitive abilities so that although the care support he needed may have been the same his ability to manage himself, to make daily (not legal) decisions and the degree to which he would be able to join in his care would have been substantially improved.

"viii) On the other hand, in all the circumstances the Claimant has not persuaded me that it is likely he would have suffered materially less injury had he been delivered 6 minutes before 1529 on 4th June 2005. DS was bound to suffer significant brain damage from the acute hypoxia following placental abruption until resuscitation and although a saving of 6 minutes before delivery and a consequential shorter period of necessary resuscitation may have made some proportionally minor difference to his cognitive functioning, it is impossible to say to what extent that saving of time would have improved his current condition."

Material Difference or Material Contribution?

The evidence and finding of a period of profound hypoxia ischaemia of at least 39 minutes "but more probably longer" is remarkable and very unusual. However the upshot is that context of the (obiter) causation findings was that 6 to 9 minutes of the, say, 29 minutes of harmful hypoxia ischaemia, were avoidable.

The Judge seems to have asked herself the question: has C proved that the "avoidable" period of harmful hypoxia ischaemia made a material difference to the Claimant's cognitive abilities or functioning? She was satisfied that if the avoidable period were 9 minutes, then the answer was "Yes". If the avoidable period were 6 minutes then the answer was "No".

The Defendant appears to have contended that if brain damage, however severe, would have been inevitable even absent the negligence, then the Claimant could not recover any compensation: had hypoxia been longer than 10 minutes then essentially the same brain damage injury would have been suffered (see paragraph 5 of the judgment above). The Judge must have rejected that contention. It is true that the first question in the Bailey v MOD test of causation is:

"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 to establish that the tortious cause contributed".

But there is a difficulty in applying that test to cases of injury caused by a process, some of which is negligent, some non-negligent. Such cases are not, as the Defendant in DS seems to have contended, "all or nothing" in the following sense. In Bailey the injury was a sudden event with more than one, but very distinct, contributory causes. In DS as in  Williams v Bermuda there was a process causing injury. In Williams the process was the development of sepsis. The Privy Council held that,

 "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42]."

Likewise with cerebral palsy caused by hypoxic ischaemia. There is a continuous process during which the supply of oxygen to the brain is interrupted. Some of that period is "non-harmful" only in the sense that, without more, it would not cause injury; some is harmful and avoidable; some is harmful and unavoidable. The whole period causes the brain injury. The negligent part contributes to the whole.

Assessing Quantum

How would Mrs Justice Cheema-Grubb have assessed quantum on her finding that a "negligent" 9 minute delay made a material difference to the Claimant's cognitive abilities? The alternatives would have been to assess damages for the whole of the injury, because the avoidable 9 minutes made a material contribution, or to assess damages for the additional injury caused by the avoidable 9 minutes. My guess is that the Judge would have sought to assess on the latter basis because the implication of the judgment on causation is that the Judge approached hypoxic ischaemic brain damage at or around the time of birth as a dose-related injury susceptible to a quantifiable attribution of injury to cause.

The judgment is not easy to reconcile with the approach taken in Popple and, in a closely related case, John neither of which were referred to in the judgment. In Popple Ward LJ held that

 "If [the hypoxic insult] did take 20 minutes, the damage done in the last five minutes must have made a contribution to the overall harm which was more than minimal. I cannot see why the Bailey principle does not apply." 

It is perfectly possible for one court to find on the facts that 5 minutes of a 20 minute period of hypoxia is material, and for another to find that 6 minutes of a 29 minute period is not material. Each case must be determined on its own facts. However, the question Ward LJ asked himself appears to have been, "Did the avoidable period of hypoxia make a material contribution to the overall harm?", not, "Did the avoidable period of hypoxia cause material or quantifiable additional harm?"

The question of whether a negligent period of hypoxia made a a material contribution to the injury sustained is not necessarily the same question as whether it made a material difference to the outcome?

The "material contribution" principle applies precisely in those cases where one cannot quantify the degree of injury attributable to the negligent cause. As was held in the brain injury case of John :

"... the Bailey and Williams cases are cases where it was impossible, not merely difficult, to attribute particular causes to particular loss. The present case likewise entails impossibility rather than simply difficulty. As such, it is not an appropriate case for an apportionment exercise." 

So, the fact that the Claimant cannot prove a quantifiable difference in outcome did not preclude recovery of compensation - indeed the Claimant recovered compensation for the whole of the injury suffered.

It is possible that on the facts the Court might find that a period of avoidable hypoxia has not made a material contribution to the overall harm. But that is a different question from the one the Court appears to have asked itself in DS.

Popple, Williams and John, seemed to establish that where there are successive causes, negligent and non-negligent, which are part of a process leading to the final injury, and the negligent cause made a material but unquantifiable contribution to that process and to the final injury, then the Defendant is liable to compensate the Claimant for the whole of the injury. DS appears to point another way.

Monday, 9 May 2016

Incapacity, Illegality and Recoverability

  • A defendant may be liable for Court of Protection and Deputy costs even if its negligence did not cause the claimant's incapacity to manage his own affairs.

  • A claimant may "regain"capacity to manage his affairs once the initial, most difficult aspects of management of a large award are accomplished.

  • If a claimant's incapacity arises from illegality, then the defendant may not be liable for the costs consequent upon such incapacity.

These were three important aspects of a recent clinical negligence quantum judgment that also covered many other issues including the assessment of reduced life expectancy.

In AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) Irwin J heard the case of an ill-fated claimant who had suffered serious neurological injury from a spinal abscess. He alleged that there had been delay in diagnosing and treating the abscess. Liability was compromised for 60% of damages to be assessed.

The claimant had a long history of drug taking and criminality. His drug abuse, personality and difficulty personal history combined with other, less significant factors, contributed to serious psychological problems.

He was found to lack capacity to manage his own affairs for the first year after an award. That period would involve difficult decision-making concerning the setting up arrangements for the future, the purchase of equipment and transport and re-fitting accommodation. After one year the decision-making would become less complex and the claimant would have capacity to manage his affairs going forward unless he reverted to abusing illegal drugs. If he did so then the defendant should not be liable for such future incapacity and the associated costs. Hence future costs of the Court of Protection were allowed for a period of one year only.

That finding might be thought to have wider ramifications. If capacity is "borderline" in respect of the management of affairs post settlement/judgment, then might capacity be "regained" once the initial set up work is completed. Certainly that is something that experts should be asked to address.

Irwin J applied dicta of Lord Hoffman in Gray v Thames Trains  where he referred to the wider rule of ex turpi, namely "you cannot recover for damage which is the consequence of your own criminal act.

The claimant's pre-trial lack of capacity was held to be attributable to his abuse of illegal drugs. The defendant raised arguments concerned with causation and lack of foreseeability, but Irwin J seems to have preferred application of the wider ex turpi rule:

Monday, 25 April 2016

Who is My Neighbour?

Do healthcare professionals owe a duty of care to anyone other than their patients?

In Connor Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) HHJ McKenna sitting as a Judge in the High Court struck out claims by or on behalf of two second cousins of a patient, Mr Craven, who had adrenomyeloneuropathy (AMN) a genetic condition. It was alleged that there had been negligent delay in diagnosing the AMN with the result that his two infant second cousins were late in being diagnosed and treated. One had died by the time the action was brought. 

The Judge applied the High Court decision in ABC v St Georges Healthcare NHS Trust [2015] EWHC 1394 (QB), a decision of Nicol J, which is under appeal, in which a patient with Huntington's Disease had refused permission to the Defendant Trust to notify his daughter of the diagnosis. She was pregnant at the time. She later gave birth and a doctor accidentally told her of her father's condition. She was found to have the disease herself but it was not yet known whether her child had it. The claim was struck out.

In Connor Smith, the Claimant sought to distinguish ABC on the grounds that Mr Craven would readily have consented to his diagnosis being shared with family members. There was no issue of confidentiality. HHJ McKenna was not swayed by that argument and found that the Claimants' claim would mark a very significant departure from the current law.

Relatives are often closely involved in treatment decisions

He noted the case of Selwood v Durham CC [2012] EWCA Civ 979 in which the Court of Appeal held that it was possible for the court to find that an NHS Trust owed a duty of care to a social worker who was in contact with a psychiatric patient, to protect her from harm from that patient. He found that the facts in Selwood were very different from those in Smith.

Floodgates, as we all know, are meant to remain closed. If second cousins could have valid claims then potentially so would all manner of relatives in similar cases. But perhaps there will be other situations which would test the courts' commitment to restricting the scope of duty. Suppose a patient was wrongly discharged home harbouring a contagious infection which was transmitted to a family member living with them. A patient might injure a spouse when suffering a seizure when driving a car after a failure to diagnose a serious head injury. Some decisions to discharge a patient place a heavy onus on a spouse or other carer at home, for example the discharge of a psychiatric patient who, even though in the community, needs considerable care and supervision. Suppose it was known, or ought to have been known, that the carer would have considerable difficulty carrying out the role of carer or supervisor, and that they went on to suffer psychiatric or physical injury themselves because of having to look after the patient. If it was negligent to have discharged that patient, should the Trust be liable for the injury to the carer? 

In some cases there may be conflicts, or potential conflicts of interest between the patient and the potential claimant. In others, their interests will fully coincide. In some cases the claimant will not be known to the healthcare professionals, in others they will be well known and have had repeated contact with the Defendant, its employees and agents. In some cases the harm to the claimant will have arisen in unlikely circumstances, in others it will have been readily foreseeable, It is easy to imagine circumstances in which there was considerable proximity between defendant and the (non-patient) claimant, and in which the harm was readily foreseeable. Will the policy remain against widening the scope of the duty of care or will the three Caparo principles be found to apply?

The current trend in restricting secondary victim claims has been particularly telling in clinical negligence cases where there is often a distance in time between the negligence and the "event" that causes nervous shock/psychiatric injury to the claimant. Given the courts' current attitude to such claims, the prospect of expanding the scope of the duty of care to any non-patients might seem remote. We can expect more judicial guidance following the appeal in ABC which is apparently due for hearing in early 2017. 

Thursday, 17 March 2016

Cumulative Causes of Brain Injury

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In a recent post on the Privy Council decision in Williams v Bermuda I wrote about the application of Bailey v MOD "material contribution" in obstetric brain injury cases.

Neonatal HIE

The High Court judgment in John v Central Manchester  makes the case even clearer.

The Claimant, Dr John, suffered a head injury in a fall. He was taken by ambulance to Manchester Royal Infirmary and a CT brain scan was planned. There was delay in arranging the scan. The Court found the delay to be negligent and to have resulted in a delay in performing a craniotomy and evacuation of what was found to be an acute subdural haematoma of about 6 hours. During that 6 hours the Claimant suffered raised intracranial pressure.

Acute Subdural Haematoma

Following the evacuation the Claimant suffered from post-operative infection.

The Court accepted the Claimant's approach to causation: the negligent delay materially contributed to the Claimant's long term brain damage and that, following Bailey v MOD, the defendant should be liable for the whole of the subsequent injury. His Counsel, Darryl Allen QC from Manchester, also drew the Court's attention to Williams v Bermuda. The importance of Williams to Dr John's case was that the Privy Council had in effect approved the application of Bailey to sequential or cumulative causes. In Bailey the two potent. separate causes had simultaneously caused an indivisible injury. In Williams, as in the case of Dr John, the causative factors had occurred cumulatively - it was one thing after another, contributing to the final outcome.

It is a similar picture in many obstetric cases where the baby suffers from hypoxic ischaemic encephalopathy. There may be a non-negligent period of hypixia ischaemia followed by a negligent period. These cumulatively cause the claimant to suffer from cerbral palsy.

In John, the defendant sought to distinguish Bailey by contending that there were three very different agents causing the eventual outcome. In closing submissions, Andrew Kennedy for the Trust submitted that damages should be apportioned between the negligent and non-negligent causative factors. The Judge rejected that approach. He wondered about the logic of it - if the material contribution approach is appropriate it is precisely because one cannot assess the extent of the contribution by the negligent cause (other than to say that it was material). Picken J said that apportionment is not appropriate where it is not merely difficult but actually impossible to allot particular loss to particular cause. This is not the impossibility of attributing a cause, but of making a precise apportionment.

It might be contended that in a different case, where the negligent and non-negligent causes of brain damage are the same in type or agency (such as in many cerebral palsy cases) then an apportionment is possible. Such cases, it might be said, are dose related (See Court of Appeal decision in Dickins v O2 [2008] EWCA Civ 1144) and therefore amenable to apportionment. However, in Williams the negligent and non-negligent agents of injury were the same (infection), yet Bailey was applied to render the defendant liable for the whole injury. And in Popple v Birmingham the Court of Appeal applied Bailey to a cerebral palsy/ HIE case.

Tuesday, 9 February 2016

The Inherent Improbability of Negligence

Medical professionals are rarely negligent. Often a patient who suffers an unexpectedly poor outcome from treatment by medical professionals will have no direct evidence about what occurred to cause that result. Statistically it is unlikely that the result was caused by negligence.

A submissions often made on behalf of defendants to clinical negligence actions is that the alleged negligence is so inherently unlikely that it can be rejected. The alleged negligence, so goes the submission, can be rejected as having been inherently improbable.

Mr Justice Jay considered and rejected such a submission in Jacobs v King's College Hospital NHS Foundation Trust [2016] EWHC 121 (QB).

The Claimant contended that during the course of an operation to repair a direct inguinal hernia the surgeon failed to identify and repair an indirect inguinal hernia. The surgery was performed by a Mr El-Hasani. The Claimant was reviewed post-operatively by a nurse, Ms Starlene Grandy-Smith. This was by any standards a low value clinical negligence claim, but it reached trial in the High Court where evidence was heard over two days in January 2016.

Jay J observed at [65]:

"This case raises a not unfamiliar judicial conundrum. On the one hand the court is confronted by evidence from health professionals who can have no specific recollection of this patient and are therefore compelled to rely on their standard practice and (on the instant facts) relatively sparse contemporaneous records. On the other hand the court has a lay witness, supported to some extent by her mother, who can give a reasonably compelling account of events, and is wholly convinced in her own mind that the first operation was a failure. The unshakeable cornerstone of the claimant's case is her belief that when she returned home from hospital on 13th June 2010 the lump was exactly the same."

The Court then addressed the "inherent improbability" submission that, in my experience, is commonly adopted by lawyers for clinical negligence defendants, and that was put forward in this case by Mr Gibson, for the defendant Trust. At [66] he said:

"I cannot accept Mr Gibson's suggested approach which is in some way to weigh up and assess the competing inherent probabilities, and to conclude that the combined chance of Mr El-Hasani and Ms Grandy-Smith "missing" (in their different ways) an indirect inguinal hernia must be lower than the chance of recurrence stricto sensu. This approach may well appeal to a mathematician or statistician, and there are occasions where statistics and epidemiology have a role in the judicial decision-making process, but this is not one of them. The difficulty is that there is no comparison of like with like, and no proper basis for placing any sort of figure on the chance of an experienced surgeon making a mistake of the suggested nature. However, that is not to say that the inherent probabilities cannot be viewed more generally and impressionistically, a point to which I will be coming later."

He later commented on his favourable impression of the surgeon and his impressive record of successfully performing such surgery.

Of course in the interests of promoting a modern legal system fit for the 21st century one must condemn the use of the Latin phrase "stricto sensu" when "in the strict sense" or would have conveyed the same meaning.

The Learned Judge became almost poetic when describing the judicial role when assessing the evidence of fact:

"All the evidence has to be weighed in the balance at all material times, with the judicial telescope, or microscope, constantly shifting in its power of magnification, bringing certain facts in and out of view, and then back into focus."

When carrying out that process he found that the lay and expert evidence for the defendant was "not quite rock-solid but it is sufficiently robust and well-anchored that it would require compelling and consistently reliable evidence on the claimant's side to undermine it. The claimant's evidence does not fall into that category" 

So, the claim was defeated (total damages and interest would have been only £10,500) but the passage at [66] might usefully be borne in mind whenever the "inherent improbability" submission is deployed.

Monday, 25 January 2016

Williams v Bermuda - A Short Explanation

A patient goes to A&E complaining of abdominal pain. He has appendicitis. A scan is ordered but there is an avoidable delay before a scan is performed and an appendectomy undertaken. At the operation it is found that the appendix has ruptured and there was a large accumulation of pus which led to myocardial ischaemia.

These were the facts in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4 decided by the Judicial Committee of the Privy Council on 25 January 2016.

The trial judge held that the claimant had failed to prove that the complications were probably caused by the defendant's failure to diagnose and treat him expeditiously. He awarded $2,000 for additional pain and suffering during the period of culpable delay but nothing for the injury caused by the complications.

The Court of Appeal of Bermuda overturned that decision, finding that the delay had materially contributed to the complications remitted the case for assessment of damages. The sum of $60,000 was ultimately awarded. The Court of Appeal found that the trial judge had been in error "by raising the bar unattainably high". The proper test of causation was "not whether the negligent delay and inadequate system caused the injury ... but rather whether the breaches of duty by [the hospital board] contributed materially to the injury." It was beyond argument, found the Court of Appeal, that the breaches had contributed materially to the injury. The question of causation was not one of all or nothing.

The hospital board appealed. The NHSLA was an intervener, supplying written submissions only, represented Bevan Brittan LLP, as was the Appellant Board.

The Respondent patient contended that the Court of Appeal had been correct - it is enough that the defendant's negligence has contributed to the claimant's injury where the evidence points to there having been cumulative causes. The same principle does not apply where there are merely several possible causes any of which may have been entirely responsible for the injury. The Court of Appeal had been entitled to conclude that the complications were the "product of a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board."

The Privy Council rejected the Appellant's submission that the material contribution principle only applied to simultaneous contributory causes - "As a matter of principle successive events are capable of each making a material contribution to the subsequent outcome." [39]

The Respondent's heart and lungs were found to have been damaged by sepsis; the sepsis developed incrementally over a period of a number of hours, progressively causing the myocardial ischaemia: "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42].

In obiter remarks the Privy Council supported the Bailey v MOD findings and expressed caution about applying a "doubling of risk" test to causation.

This case raised a principle regarded as one of importance by the Appellant, and doubtless by the NHSLA also since it intervened. I have previously posted on the application of material contribution in clinical negligence cases. This decision will have implications for many kinds of clinical negligence claims, including obstetric negligence. Brain damage suffered by babies during the late stages of labour/first minutes after delivery, is often due to a period of hypoxia and ischaemia. Hypoxic ischaemic encephalopathy (HIE) is a brain dysfunction caused by a reduction in the supply of oxygen to the brain and other organs compounded by low blood flow to vital organs. The duration of hypoxia and ischaemia is an important factor in determining the outcome for the baby. If negligent delay contributes to the process of deprivation of oxygen and blood flow then it is likely to be found to have made a material contribution.

I have written previously about the possibility of using the principle of material contribution in claims for delay in diagnosing cancer. This case would lend support to that approach in appropriate cases.

Where the "injury" is divisible, it is thought that the tortfeasor is responsible only for the extent of the injury caused by it. If the injury is indivisible then a defendant who has tortuously contributed to the cause of the injury will be liable in full. I have been provided with a copy of the judgment of the Court of Appeal of Bermuda by Dr David Levy. It appears to have been implicitly accepted that if there was a material contribution then the defendant was liable for the whole injury. It would seem to follow that it was accepted that the injury suffered by Mr Williams was indivisible. That was not made explicit. If you would like a copy of the Court of Appeal's judgment, please email me on mail@learnedfriend.co.uk

Decisions of the Judicial Committee of the Privy Council are not binding in domestic courts. They are however persuasive authority. The fact that the judgment was given by Lord Toulson and the other judges were Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge, will give this decision considerable persuasive weight.