Brown v Birmingham and Black Country Strategic Health Authority & Ors

Medical negligence requires proof that the defendant’s conduct fell outside the range of reasonable medical practice and caused the claimant’s injury. A court must assess the conduct by reference to information reasonably available at the time, rather than with hindsight. Where responsible medical opinion supports more than one reasonable approach, choosing one of those approaches is not negligent merely because another approach might have produced a better outcome. Delay may materially impair the evaluation of evidence in a stale claim. In that situation, the court should be cautious about drawing adverse inferences against the party disadvantaged by the delay, unless no reasonable alternative exists. The claimant must nevertheless prove breach and causation on the balance of probabilities.

The claimant sought damages for severe disability caused by meningitis and hydrocephalus following an undiagnosed congenital cervical dermal sinus. The claim alleged negligence by her general practitioner and by paediatricians at New Cross Hospital during admissions in December 1985 and January 1986.

The allegations included failure to recognise or refer the dermal sinus, failure to respond appropriately to later symptoms, failure to perform a CT scan or lumbar puncture, and failure to act on a telephone discussion between the general practitioner and consultant. The trial concerned liability only, after substantial delay had caused the death or retirement of important witnesses and impaired recollection.

1. Claim dismissed. All principal allegations of negligence against the general practitioner, the hospital authority and the hospital clinicians failed. The claimant did not establish that any breach caused the outcome.
2. The court found that the claimant’s parents had not proved that they showed the dermal sinus to the general practitioner. The allegations founded on that assertion therefore failed.
3. On 4 April 1986, the recorded symptoms included headache, neck pain, vomiting, poor appetite, irritability and fever, while the examination recorded injected tonsils and a temperature of 40°C. The expert evidence accepted that tonsillitis could account for relevant symptoms. If neck stiffness or signs of meningism had been present, admission would have been mandatory. The court was not satisfied that such signs had been missed. Treatment for tonsillitis without referral was therefore within reasonable medical practice.
4. The hospital’s failure to perform a CT scan or lumbar puncture during the January admission was not shown to be culpable. The evidence disclosed two respectable approaches: investigation where signs suggested intracranial pathology, and restraint where the signs were equivocal and the child improved. The claimant’s leading expert was materially influenced by hindsight. The court preferred the evidence that there were no specific signs requiring invasive investigation.
5. The court found that the general practitioner telephoned the consultant on or about 20 March 1986 and conveyed the relevant symptoms. The consultant should have arranged readmission, but the claimant failed to prove that earlier readmission, scanning or lumbar puncture would probably have altered the outcome. Causation therefore failed.
6. Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the court held that the clinicians, apart from the failure to respond to the 20 March telephone call, acted in accordance with a practice accepted as proper by a responsible body of medical opinion. The telephone-call breach was not causative.