Morris (A Child) v Blackpool Victoria Hospital NHS Trust

In clinical negligence, whether a late-pregnancy ultrasound should have been ordered must be judged by the information available at the time, without hindsight. A scan is not routine, but even a suspicion of fetal abnormality may require immediate investigation where facilities are available and potential benefits outweigh risks. The Bolam standard remains subject to the Bolitho requirement that supporting professional opinion be reasonable, responsible and logically based. A conceded error about the existence of intrauterine growth retardation did not undermine an independently supported finding that the clinical indicators were reassuring and did not create a duty to scan. The appeal was therefore dismissed.

Christopher Morris, born at Blackpool Victoria Hospital, developed severe cerebral palsy and related disabilities. Through his mother, he claimed that the hospital negligently failed on 19 and 20 May 1987 to reassess the pregnancy and arrange ultrasound scanning, which would have revealed intrauterine growth retardation, led to closer monitoring and earlier delivery, and prevented his brain damage.

After an eight-day trial on preliminary issues of negligence and causation, Silber J dismissed the claim in [2003] EWHC 1744 (QB). On appeal, the hospital conceded that the judge had wrongly found that no intrauterine growth retardation existed. The central issue was whether that error undermined the independent finding of no negligence, together with the judge’s alternative findings on treatment and causation.

The Court of Appeal unanimously dismissed the appeal. Rix LJ delivered the leading judgment. Carnwath LJ agreed that the finding of no negligence was sustainable, while expressing no concluded view on the difficult treatment and causation issues. Potter LJ agreed with Rix LJ.

1. Applicable standard. The assessment of clinical negligence had to be made prospectively, by reference to what the hospital knew or reasonably ought to have known on 19 and 20 May 1987. The wisdom of hindsight had to be avoided. The judge correctly directed himself by the Bolam test, as qualified by the requirement in Bolitho that professional opinion be reasonable, responsible and logically based.
2. Whether a scan was required. A late-pregnancy scan was not routine. However, the judge accepted that even a suspicion of fetal abnormality, particularly intrauterine growth retardation, would require an immediate scan where facilities were available and no material risk outweighed the potential benefit. On the evidence available at the relevant time, fundal height, maternal weight, liquor volume, examination findings and cardiotocograph traces were sufficiently reassuring. The supporting obstetric evidence met the Bolam and Bolitho standards. The later discovery of intrauterine growth retardation did not make the earlier management negligent.
3. Effect of the factual error. The judge’s finding that Christopher did not have intrauterine growth retardation was plainly wrong. His conclusion on disclosure of the condition therefore could not stand. His treatment reasoning was also unsatisfactory because it assumed that hypothetical close monitoring would have been reassuring and failed to engage properly with the evidence that a diagnosis would have prompted serious monitoring and possible earlier delivery.
4. Causation. Rix LJ considered that a claimant alleging failure to diagnose must prove that diagnosis would probably have changed treatment so as to improve the outcome. He doubted that the exceptional relaxation of ordinary causation proof discussed in Fairchild applied, but the point had not been argued. He also observed that post-birth timing would not by itself exclude responsibility if pre-birth pathology materially contributed to the injury. These observations were unnecessary to the result because the no-negligence finding stood.

• Court of Appeal (Civil Division): Appeal dismissed. The conceded error concerning intrauterine growth retardation did not undermine the finding of no negligence: [2004] EWCA Civ 1294.
• Queen’s Bench Division: Silber J dismissed the claim after trial on preliminary issues of negligence and causation: [2003] EWHC 1744 (QB).