Lillywhite & Anor v University College London Hospitals NHS Trust

In a clinical negligence claim concerning the interpretation of fetal ultrasound images, careful performance of the scan is not enough where the alleged breach concerns professional skill and judgment. A claimant retains the burden of proving negligence on the balance of probabilities. However, where the result calls for an explanation, the defendant must identify an explanation that is reasonably available on the evidence and does not itself involve negligence. A merely theoretical possibility is insufficient. In a focused tertiary referral, the court must assess whether a reasonably competent specialist could have interpreted the relevant mimicking echoes as genuine anatomical structures. The appeal was allowed because the proposed explanations did not plausibly account for all three absent structures.

The appellants claimed damages arising from their daughter’s severe congenital brain malformation. An earlier ultrasound scan by Mrs Wright had failed to show the cavum septum pellucidum and the anterior horns of the lateral ventricles, prompting a tertiary referral to Professor Rodeck. Professor Rodeck concluded that the relevant structures were present and advised that there was no material abnormality. The child was later diagnosed with semilobar holoprosencephaly.

Jack J dismissed the claim in the High Court, in a judgment reported at [2004] EWHC 2452(QB). The central issue on appeal was whether the judge was entitled to accept possible mimicking echoes as an explanation for the incorrect interpretation, despite the absence of the structures which Professor Rodeck believed he had identified.

1. By a majority, the appeal was allowed. The question was not whether Professor Rodeck had performed the ultrasound carefully in a mechanical sense, but whether he had exercised the skill and judgment expected of a consultant sonologist at a tertiary referral centre.
2. The referral was focused because Mrs Wright had identified possible absent brain structures. That context required a high standard of care and skill. The fact that other experienced sonologists had reached the same conclusion was a powerful consideration, but it could not by itself determine the issue.
3. The maxim res ipsa loquitur did not decide the case. The claimant retained the burden of proof. Nevertheless, the incorrect identification of absent structures called for an explanation. Consistently with Ratcliffe v Plymouth and Torbay Health Authority [1998] Lloyd’s LR: Med 162 and Pithers v Leeds Teaching Hospitals NHS Trust [2004] EWHC (QB) 1392, the defendant had to advance an explanation reasonably available on the evidence, rather than merely theoretical or remotely possible. It was not necessary to prove that the explanation was the most probable one.
4. The proposed explanations had to account for the falx, the cavum septum and the anterior horns of the lateral ventricles. No adequate explanation existed for the anterior falx. The 13-90 echoes were a recognised pitfall by 1991, so treating them as the anterior horns would itself indicate a failure to exercise reasonable care. The reasoning concerning the monoventricle’s beak and the cavum septum was not supported by the evidence, particularly the undisputed anatomical relationship between the cavum septum and the thalami.
5. Accordingly, the identified echoes should not, with reasonable care and skill, have been interpreted as the relevant structures. The trial judge’s evaluation was therefore unsustainable and the order dismissing the claim was set aside.
6. Lady Justice Arden dissented. She considered that the claimant retained the onus of proof and that the evidence of careful scanning, possible mimicking echoes and similar diagnoses by other sonologists provided an evidential basis for the trial judge’s conclusion. She would have dismissed the appeal.

• Court of Appeal (Civil Division): by a majority, the appeal was allowed and the High Court order dismissing the claim was set aside.
• High Court, Queen’s Bench Division: Jack J dismissed the claim after finding that negligence had not been established; the judgment is reported at [2004] EWHC 2452(QB).