Clinical negligence update

In the novel case of Smith and another v University of Leicester NHS Trust [2016] EWHC 817 (QB), Judge Mckenna concluded that a hospital did not owe a duty of care to its patient's wider family even though the diagnosis of its patient's genetic condition should have been made earlier, which would have resulted in testing of the patient's wider family and which,
in turn, would have resulted in positive diagnoses for two second cousins of the patient. Earlier diagnosis of those cousins (who were brothers) would have enabled earlier treatment by some two or three years, avoiding the death of one.

The judge found for the defendant, concluding that there was no duty between a hospital and someone who was not its patient: a third party could not recover damages for personal injury suffered because of an omission in the treatment
of another. There was neither sufficient proximity between the parties nor would it be 'fair, just, and reasonable' to impose such a duty (ABC v St George's Healthcare NHS Trust [2015] All ER (D) 172 (May) applied; Michael v Chief Constable of South Wales Police [2015] All ER (D) 215 (Jan) considered).

Obstetric cases

Mrs Justice McGowan had to consider in FE
(by his litigation friend PE) v St George's University Hospitals NHS Trust [2016] EWHC 553 (QB) when the claimant's mother (JE) should have been assessed by a senior obstetrician and how quickly after
that assessment the claimant (FE) should have been delivered.

FE's case was that, on receiving appropriate information from the midwife, either the obstetrician should have left another patient sooner to assess JE and commence delivery earlier or the delivery should have occurred more quickly after that assessment. The judge commented on the inadequate standard of record keeping, which made for a difficult analysis of the case. However, a midwife had been expressing an increasing level of concern, which had not been communicated to or understood by the obstetricians; if they could not respond to such concern, another senior obstetrician should have done so.

The judge found for FE in that, notwithstanding the pressures of a busy labour ward, the system of communication and the response to messages sent between the teams had been inadequate.
This had resulted in acute hypoxic-ischaemic insult at the end of labour which had led to neurological damage. With proper management, delivery would have occurred at least five minutes earlier, which would have avoided FE's injuries.

In Cox (A protected party by her father and litigation friend Cox) v Secretary of State for Health [2016] EWHC 924 (QB), Mr Justice Garnham had
to consider the events surrounding delivery
of a second twin in 1986. The main issue to be considered was whether the hospital had failed to ensure that delivery of the claimant second twin (C) could be carried out in the delivery suite in
a safe environment (i.e. in the presence of an anaesthetist and where anaesthesia for a caesarean section (CS) could be administered without delay).

It was common ground that, had C been delivered ten minutes earlier than she in fact was, she would probably have been spared damage.
C sought to rely upon the hospital's labour ward handbook, endorsed '1986-1992', which described the appropriate standard of care at the time.

However, the judge concluded that the handbook had in fact not been in use before 1987. Rather, in 1986 there was no established practice that a delivery suite could or should be converted to be used for an emergency CS, even if this
may have been carried out in some hospitals. Accordingly, there was no deficiency in the
system of care operated at the hospital and no breach of duty.

In any event, even if it had been possible to perform emergency CS safely in the delivery suite, use of it in this case would not have resulted in C being delivered ten minutes earlier than had in fact occurred (Whitehouse v Jordan [1981] 1 All ER 267 and Sardar v NHS Commissioning Board [2014] All ER (D) 98 (Jan) considered). In another obstetric case, DS (by her mother and litigation friend FS) v Northern Lincolnshire and Goole NHS Foundation Trust [2016] EWHC 1246 (QB), the claimant (DS) alleged that there was a negligent delay in delivery, in that the midwives failed to recognise significant bradycardia and seek obstetric assistance, such that, but for the delay, DS's delivery would have been six or nine minutes earlier, which would resulted in a materially less damaging hypoxic injury. However, in finding against DS, Mrs Justice Cheema-Grubb concluded that, while the midwives should have sought obstetric assistance earlier, the negligent delay was of only three minutes, which had no impact on DS's outcome.

In an 'exceptional' case, Hall v North Hertfordshire NHS Trust (27 May 2016), Judge Forster QC had to consider whether H's attending midwife was negligent in moving away from
H during labour to turn on a resuscitaire in preparation for delivery when it should have been clear that birth was imminent; accordingly, she had failed to catch H's baby as he was delivered. The baby landed on a pillow on the floor and suffered only a minor head bruise, but H alleged she suffered post-traumatic stress disorder due
to witnessing the manner of the delivery. However, in finding against H, the judge considered that it was an exceptional case, in that H had spontaneously delivered in one contraction while standing up and, accordingly, it had not been reasonably foreseeable that delivery was imminent within minutes and the midwife had acted reasonably.

In MC and JC v Birmingham Women's NHS Foundation Trust [2016] EWHC 1334 (QB), Mr Justice Turner had to consider whether JC's cerebral palsy and MC's dangerous blood loss and emergency hysterectomy were attributable to substandard advice. The three main issues to be determined were:

• Had MC given informed consent to undergo induction due to the risk of pre-eclampsia;

• Was MC adequately cared for following induction; and

• If not, would adequate care have prevented
  MC and JC's injuries?

The judge held that it had been reasonable to have advised MC to undergo induction notwithstanding a busy delivery suite and, on the basis of MC's evidence, which he found to be inaccurate, it was unlikely MC would have failed to ask why an induction was indicated if no explanation had been volunteered (Montgomery v Lanarkshire Health Board [2015] 2 All ER 1031 applied).

The claim also failed on the other aspects as both national and local guidelines had been adequately followed (Sardar applied).

In a claim that turned on the size of retained placenta, Manzi v King's College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB), Mr Justice Nicol dismissed the claim on the basis of expert evidence that the piece of retained placenta was no more than 'small' rather than 'substantial', small being around 2cm long and substantial being around 7cm, the parties having agreed that for the claimant to succeed she required the finding that a 'substantial' amount of placenta was retained.Surgical cases

In Hosseini (a protected party, by her litigation friend O'Connor) v Central Manchester University Hospitals NHS Foundation Trust [2016] EWHC 974 (QB), Mr Justice Soole concluded that there had been no breach of duty in the performance of a correctional operation which left the claimant (H) with cauda equina damage. There had been no failure by the operating orthopaedic surgeon to appreciate that the perioperative spinal cord monitoring was not providing any useful information; it had been a matter of reasonable professional judgement not to consider a 'wake-up' test as necessary; and it had been appropriate not to abandon the operation altogether, as surgery was needed.

In Stucken v East Kent Hospitals University NHS Foundation Trust [2016] EWHC 1057 (QB), Mr Justice Jay dismissed the claimant's (S) case on the basis that, as fact, S had not suffered a posterior vitreous detachment (PVD) and therefore it was reasonable to perform a 'cryo-buckle' procedure rather than a primary vitrectomy.

In another case before Judge Forster QC, it had been reasonable for a surgeon not to diagnose acute diverticular disease and perform a colostomy during a laparotomy, even though an earlier CT scan had shown a perforated colon and the claimant had needed a resection nine months later. In Reginald Parker v London North West Healthcare NHS Trust (20 May 2016), the judge concluded
that the operation note was consistent with the surgeon conducting a careful examination of the colon and bowel and, based on the information obtained, a reasonable body of surgeons would not have undertaken a resection of the colon or performed a colostomy.

GP claim

Finally, in a claim against a GP relating to the claimant's acute ischaemic stroke from infective endocarditis, Tucker v Griffiths [2016] EWHC 1214 (QB), Garnham J determined for the defendant,
in that she had had infective endocarditis in her mind as a possible, if unlikely, diagnosis and it had been the response of a competent GP to direct another routine appointment to discuss blood results rather than arrange immediate admission to hospital.

Dr Jock Mackenzie is a dual-qualified doctor of medicine and solicitor. He is a partner at Anthony Gold @AnthonyGoldLaw anthonygold.co.uk