DS (By mother and litigation friend FS) v Northern Lincolnshire & Goole NHS Foundation Trust (2016)
Implications
In the last edition of the Hong Kong Medical Law Brief we discussed the Judgment inWilliams v Bermuda Hospitals Board (2016) UKPC 4, where the defendant Hospital Board was unable to sustain a defence on causation where a negligent act or omission materially contributed to the overall process of harm to the patient.
In DS, the United Kingdom’s High Court held that a three minute negligent delay in the management of labour, did not materially contribute to the child’s brain damage and so the claim failed. This reinforces that, when dealing with multiple cumulative causes, the alleged negligent cause must, in itself, have made a material contribution to the injury. Establishing breach of duty alone, absent such a material contribution, will not be sufficient to establish liability.
Background
A child, acting by his mother and litigation friend, claimed damages for injury and loss caused by the Defendant’s alleged negligent mismanagement of his birth, which resulted in him suffering brain damage and spastic cerebral palsy.
The Claimant’s case was that there had been a negligent delay at the end of labour as the midwives, due to inadequate monitoring, failed to realise that his heartbeat had dropped to a dangerous level. Further, once they discovered the problem, they should have called for medical assistance minutes earlier and the doctor who then arrived should have decided to perform an emergency caesarean section at least two minutes sooner. It was alleged but for the negligent delay, the delivery would have been between six and nine minutes earlier, which would have been sufficient to reduce the period of damaging hypoxia to a materially less damaging injury.
Decision
Contrary to the Claimant’s claim, the High Court found there had been, at maximum, only a three minute negligent delay in the child’s delivery. The Claimant failed to prove that, absent that delay, his brain damage would not have been sustained, nor that the damage would have had a materially less severe impact on his ability and capacity. On the child’s case that there had been a six to nine minute delay, common sense suggested that a reduction in exposure by this amount of time would have made a difference to the child's cognitive abilities, but it was difficult to be certain that the difference would have been material. On the balance of probabilities, a saving of nine minutes (which was not accepted by the High Court) would have made a material difference to the child’s cognitive abilities, substantially improving the degree to which he would be able to join in his care. However a saving of six minutes would have made a proportionally minor difference and it was impossible to say that would have improved his condition. A saving of three minutes would have had no impact.
Read other items in Hong Kong Medical Law Brief - December 2016
