West Law Report


Posted in Breach of duty of care, Clinical negligence, Westlaw Reports by mrkooenglish on June 25, 2008

Last Updated: 5:45PM BST 25/06/2008
Queen’s Bench Division (Newcastle) Mackay J June 6, 2008
Brain damage – Breach of duty of care – Caesarean sections – Cerebral palsy Clinical negligence – Medical treatment – Premature birth – Professional practice Breach of duty by failing to deliver premature baby by caesarean section


The claimant (B) claimed that the medical care provided by the defendant hospital (N) to him and his mother (X) was negligent and caused him to suffer an intraventricular haemorrhage which resulted in him sustaining brain damage leading to cerebral palsy. In 1987, when X was 14 years old and approximately 28 weeks pregnant, she was admitted to N suffering loss of blood and period-like pains. She had further episodes of bleeding, and two days later late decelerations of the foetal heart were seen. A consultant (R) allowed the pregnancy to progress as he believed the risks to B were less than those involved in a caesarean given X’s age. The problems appeared to settle until five days later when fresh blood loss and irregular contractions were recorded. Over the next 24 hours the situation worsened with X showing signs of fulminating pre-eclampsia. R discussed the matter with colleagues and decided it was safest for B to be delivered vaginally. The foetal heart decelerated and syntocinon, a drug used to induce labour, was administered. Repeated decelerations of the foetal heart were recorded and the syntocinon dose was at first halved but then increased again. B was born later that day, eight days after X was admitted to hospital. Experts were agreed that when decelerations of the foetal heart were first detected the foetus was hypoxic but that it did not necessarily follow that hypoxic damage was being caused. However, B’s expert gave evidence that the decision to give syntocinon was inappropriate given the clear evidence of deceleration and a reasonable obstetrician would have opted for a caesarian at that point. B submitted that N had negligently failed to act on indications that he should be delivered by caesarean section which would have avoided hypoxic damage.


Whether N had negligently failed to act on indications that B should be delivered by caesarean section which would have avoided hypoxic damage.

HELD (judgment for claimant)

(1) When decelerations of the foetal heart were first recorded it was at a relatively early stage and it was reasonable for R to hope that no further hypoxia would occur and that no significant damage had been done that day. It could not be said that at that time, and with the particular patient and the particular signs, that the decision to adopt the approach that R adopted in the hope the foetus would gain further gestational maturity was not a decision which would also have been taken by a reasonable proportion of his obstetric colleagues of the time, Boland v Friern Hospital Management Committee [1957] 1 WLR 582 QBD and Bolitho (Deceased) v City and Hackney HA [1998] AC 232 applied. Therefore there was no breach of duty at that stage.

(2) An emergency caesarean section could have been achieved within 30 to 45 minutes of a decision being made to do so at the time the syntocinon was commenced, or, at the latest, when a further drop in the foetal heart rate made R anxious. It was plain that substantial further hypoxia and probably hypoxic damage would have been avoided by the decision to proceed with a caesarean. X would have accepted advice to that effect if it had been given. The team had been clinging to a strategy which was no longer defensible given both X and the foetus were at risk at that stage. There had been a negligent breach of duty by virtue of the failure to proceed to an emergency caesarean section either at the time the syntocinon was commenced or when there was a further drop in the foetal heart rate.

(3) On the evidence, there were concurrent cumulative causes of the intraventricular haemorrhage. B had satisfied the burden of proving that N’s breach of duty made a material contribution to his disabilities, Bonnington Castings Ltd v Wardlaw [1956] AC 613 applied.

E A Gumbel QC and H J Witcomb (instructed by Irwin Mitchell) for the claimant. R Seabrook QC (instructed by Eversheds) for the defendant.


Posted in Clinical negligence, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:46PM BST 14/05/2008
Queen’s Bench Division Henriques J April 25, 2008
Queen’s Bench Division

Henriques J

April 25, 2008

Clinical negligence – Diagnosis – General practitioners – Medical treatment – General practitioner’s failure to diagnose meningitis at consultation


The claimant infant (C) claimed damages for personal injury based on the alleged negligence of the defendant general practitioner (W) in failing to properly examine and diagnose her. C’s mother (L) and grandmother (G) had taken C to be examined by doctors on several occasions over a period of two weeks, complaining that C was suffering from symptoms not dissimilar to a cold.

The symptoms had not dissipated by the time G took C to be examined by W. W diagnosed C as suffering from a viral infection and prescribed a course of Calpol. W’s note of his examination recorded that C had been suffering from acute nasopharyngitis and that he had conducted a chest and ear examination. C’s condition deteriorated and G took her to hospital. Once admitted to hospital C was intubated with inotropic support and diagnosed as suffering from meningococcal septicaemia.

Although C was eventually stabilised she had suffered significant scarring and physical injury and there remained the possibility that her mental development would be impaired as a result. C submitted that at the time she had been taken to be examined by W, she was manifesting symptoms which after a scrupulous and careful examination would and should have mandated an immediate admission to hospital, and that W had failed in his duty to properly examine and diagnose C.

W submitted that if C had been in the condition described by L and G in their evidence, he could not have failed to observe and note such symptoms and properly act on them.

W argued that his note disclosed no more than a common minor childhood upper respiratory tract infection and there was nothing to suggest that he had negligently discharged his duties on that basis such that L and G must have exaggerated their claims as to C’s state of health.


Whether W was liable in negligence to C for his failure to properly examine her during a consultation.

HELD (judgment for claimant)

Having considered all the material in relation to L and G’s evidence there was no reason to doubt the veracity of their claims regarding C’s state of health at the time she was examined by W.

G’s evidence was consistent and transparently honest. Furthermore, in view of the expert evidence in relation to the proper examination of patients suffering from meningitis, W had failed to take sufficient steps to assess C’s responsiveness.

In light of those findings, W’s note of the consultation was inadequate and should have recorded the history of the duration of the illness and the additional symptoms as described to him by L and G during the consultation.

On the balance of probabilities W had failed to exercise the ordinary skill of an ordinary competent general practitioner in carrying out the consultation.

Robin Oppenheim QC (instructed by Parlett Kent) for the claimant. John Grace QC (instructed by Medical Defence Union) for the defendant.


Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Auld, May and Longmore LJJ
May 18, 2007

Brain damage – Breach of duty of care – causation – Clinical negligence – Expert evidence – Hospitals – Failure of nursing staff to monitor vital signs – Judge’s findings of fact on causation


The appellant (S) appealed against the dismissal of his negligence claim against the respondent hospital (B) in respect of personal injuries sustained after a routine knee operation. Following the successful performance of the operation, during which S was given a general anaesthetic, S was taken to a recovery area, where it was noted that his oxygen saturation levels had dropped to 90 per cent. S was nonetheless discharged to a hospital ward, where he remained overnight. S was able to self-administer morphine. At 06.00, the nursing staff observed that S was asleep and, as he had not slept for most of the night, decided not to wake him to carry out vital signs monitoring. He subsequently suffered severe and permanent hypoxic brain damage which the parties agreed had resulted from regurgitated gastric contents being aspirated into his lungs. Because S was in a deep sleep and had been affected by the morphine, his gag reflex had been impaired. The judge below had found that in deciding not to perform vital signs monitoring, the nursing staff had exercised reasonable clinical judgment, in accordance with a reasonable body of nursing opinion. Furthermore, based on the opinion evidence of a preferred anaesthetist expert, the judge had found that even if the nurses had carried out the vital signs observations, they would have been able to rouse S, but the aspiration and resulting brain damage would still have occurred.

S submitted that

  1. (1) the cause of the injury could be traced back to negligence in the recovery room following the operation, when oxygen saturation was measured at 90 per cent, but no remedial action was taken. But for that initial negligence, S would not have been regarded as a routine patient and his levels of consciousness would have been monitored;
  2. (2) the judge had been wrong to accept a nurse’s evidence that it was reasonably justifiable nursing practice to have left S to sleep without monitoring, which should have included observations on his levels of consciousness and rousability. That monitoring would have detected a reduced level of consciousness in time to take remedial action before the brain-damaging aspiration occurred. Based on the principles propounded in Bolitho (Deceased) v City and Hackney HA [1998] AC 232, the judge should have rejected the nurse’s opinion as not having a logical basis, and therefore not representing a body of responsible opinion, as the risks of not performing those observations had far outweighed any risk of performing them;
  3. (3) the judge had erred in failing to recognise that there were degrees of rousability, and that S’s consciousness should have been assessed with this in mind. Specifically, the judge had been wrong to accept and prefer the opinion evidence of the expert anaesthetist, that although the morphine had suppressed the gag and cough reflex, it would not have made S unrousable. S’s level of consciousness could be judged from the fact that he did not cough or wake up when he vomited.


Whether the judge had been entitled to rely on the opinion evidence of an anaesthetist expert witness in finding that there was no causative link between the omission and the injury.

HELD (appeal dismissed)

(i) The judge had been entitled to find, on the evidence, that S’s oxygen saturation must have recovered on the ward during the night, and well before 06.00.

(ii) The lack of vital-signs monitoring by nursing staff did not involve questions of diagnosis and treatment. The risk had been that S might not in fact have had a satisfactory normal pulse, temperature or blood pressure, but the judge had accepted that, at the relevant time, on the evidence they would have been within normal limits. As the risks involved were not of the kind that fell for consideration under the principles set out in Bolitho, they were therefore irrelevant. The nurse’s opinion that it had been within proper nursing competence to leave S without making those observations had a logical basis, in that it had been reasonable to decide to let a patient who had had little sleep since his operation continue to sleep. It was plain that the nurse had weighed up the risks and benefits.

(iii) It was clear that the judge had dealt with degrees of rousability. The judge’s finding as regards S’s rousability after 06.00, which was critical to the issue of causation and to his conclusions, had a firm evidential base, and had not been shown to be wrong. The judge had been entitled to accept the expert anaesthetist’s opinion as (a) the judge had been entitled to regard him as in general the more persuasive of the expert anaesthetists; (b) expert witnesses from other disciplines had deferred to the anaesthetists on the critical issues in the instant case; (c) the preferred expert had experience of the effect of morphine in the quantities taken by S on consciousness and levels of sedation. He was therefore entitled to say, based on his experience and opinion, that the amount of morphine taken by S would not make a patient such as him deeply unconscious; (d) if morphine did suppress the gag and cough reflex, it was not illogical for it to do so when the effect on a patient’s consciousness was less than profound, because a reflex was an action or function that occurred apart from consciousness; (e) the preferred expert’s evidence was supported by that of another expert, who had referred to S’s breathing rate as indicative that his consciousness was not severely depressed.

John Grace QC and Laura Davidson (instructed by Boyes Turner) for the appellant. Susan Rodway QC and Vikram Sachdeva (instructed by DLA Piper Rudnick Gray Cary) for the respondent.

Supervening event effect

From The TimesMay 14, 2008

Supervening event effect
Whitehead and Another v Hibbert Pownall & Newton (a Firm) in the Court of Appeal
Court of Appeal

Published May 14, 2008

Whitehead and Another v Hibbert Pownall & Newton (a Firm)

Before Lord Justice Laws, Lord Justice Rix and Lord Justice Rimer

Judgment April 4, 2008

Where solicitors had negligently failed to prosecute a claim for damages for clinical negligence on behalf of a mother in respect of future losses for a wrongful birth, those losses were curtailed by the death of the mother; the solicitors were not liable in a subsequent claim for professional negligence brought on behalf of the mother’s estate for what amounted to a windfall in that, had her claim been brought to a successful conclusion before her death, the recoverable damages would have not have been curtailed by her death but would have extended to cover the costs of care into the future.

The Court of Appeal so held allowing the appeal of the defendant, Hibbert Pownall & Newton, formerly a firm of solicitors in Ashton-under-Lyne, and dismissing the cross-appeal of the first claimant, Eric Whitehead, suing on his own behalf and as administrator of the estate of Paula McLeish, deceased, from Mr Justice Griffith Williams who, on May 9, 2007, awarded damages to Mr Whitehead in his capacity as administrator, and dismissed the claim in his personal capacity.

Mr Bernard Livesey, QC and Mr Michael Harrison for the solicitors; Mr Gordon Bebb, QC and Mr James Counsell for Mr Whitehead.

LORD JUSTICE LAWS said that the Court of Appeal in Charles v Hugh James Jones & Jenkins ([2000] 1 WLR 1278, 1290) left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which, if taken into account in the later professional negligence claim, would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action.

That further question had arisen in the present case. It was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they happened since the notional original trial and so were by definition unknowable at that time.

Lord Justice Rix delivered a judgment concurring in the result; Lord Justice Rimer delivered a concurring judgment.

Solicitors: Davies Arnold Cooper; Donns LLP, Manchester.


Posted in Clinical negligence, Measure of damages, Psychiatric harm, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division
King J
March 20, 2008

Clinical negligence – Measure of damages – Psychiatric harm – Death of newborn baby – Prolonged pathological grief reaction – Recoverable damages – Fatal Accidents Act 1976 – s. 3(1) Fatal Accidents Act 1976


The court was required to determine the quantum of damages to be awarded to the claimant (J) in respect of her claim for damages for bereavement and psychiatric injuries with consequential loss arising from the death of her daughter (B) through the admitted negligence of the defendant NHS trust (D). B had suffered from hypoxic ischemic encephalopathy at birth, which meant that she could only survive on life support and the outlook for her was hopeless. The life support was withdrawn the day after B’s birth resulting in her death. A coroner’s inquest into B’s death did not begin until two years afterwards and D did not admit liability for B’s death until three years after it occurred. The medical experts jointly agreed that J suffered from an adjustment disorder that manifested itself through a number of symptoms that included sleeping disorders, loss of concentration and anxiety. J contended that she was entitled to damages for (1) psychiatric injury she had suffered through B’s death and the prolonged investigation into that death; (2) counselling sessions and other non-medical therapies that she had completed; (3) the cost of a wake following B’s death.


(1) Whether J was entitled to damages for psychiatric injury she had suffered through B’s death and the prolonged investigation into that death.

(2) Whether J was entitled to counselling sessions and other non-medical therapies that she had completed.

(3) Whether J was entitled to the cost of a wake following B’s death.

HELD (damages assessed)

(1) J suffered from the effects of a prolonged pathological grief reaction exacerbated by the effects of trauma, guilt and self-blame, and regardless of whether J’s mental health symptoms warranted a diagnostic term she continued to be affected in a negative way by her experiences. Applying the Judicial Studies Guidelines, that psychiatric injury fell within the moderately severe category and J was entitled to recover general damages of £20,000 in respect of it.

(2) There was no strict test that, for the cost of non-medical therapies to be recoverable they had to have been recommended by a medical practitioner, McMahon v Brett [2003] EWHC 2706 (QB) considered. The appropriate test was whether such treatment was reasonable, not remote and was proportionate. That assessment included a consideration of whether the alternative therapies were akin to medical expenses in that an individual had shown that he obtained positive benefit from them in the relief of his condition, whether for physical or psychological reasons. J had undoubtedly obtained real benefit from the counselling that she received from various therapists and she was entitled to damages of £2,000.

(3) J was entitled pursuant to the Fatal Accidents Act 1976 to bereavement damages of £10,000 and a further £2,763 in respect of the costs of B’s funeral and the erection of a headstone. However, the cost of a wake was not a recoverable expense within the meaning of s. 3(1) of the Act.

Simon Readhead QC (instructed by Parlett Kent, Exeter) for the claimant. Abhijeet Mukherjee (instructed by in-house solicitor) for the defendant.