DA (a child ) v North East London Strategic Health Authority

In assessing clinical negligence, the court must apply the professional negligence principles stated in Bolam v Friern Hospital Management Committee and Bolitho v City & Hackney Health Authority. A trial of scar does not require management fundamentally different from other labour. Midwives must exercise professional judgment and need not summon medical assistance merely because an event might indicate a problem. Doctors may generally rely on the absence of concerns communicated by midwives. Departure from a clinical protocol is not necessarily negligent. Liability requires both breach of duty and causation.

The claimant suffered dyskinetic cerebral palsy following profound asphyxia shortly before birth at Homerton Hospital. She alleged that hospital staff should have summoned medical assistance earlier, or that the registrar should have reviewed her before undertaking an emergency caesarean section on another patient. Liability and causation were tried as preliminary issues. The central questions were whether the midwife or registrar had acted negligently and, if so, whether earlier intervention would probably have avoided the injury.

1. Claim dismissed. The claimant failed to establish negligence or causation.
2. The applicable principles were those stated in Bolam v Friern Hospital Management Committee and Bolitho v City & Hackney Health Authority. The court preferred the defendant’s expert evidence where the experts disagreed.
3. The midwife was not negligent in failing to call for medical assistance before the other caesarean section began. The fetal trace was reassuring until the relevant deceleration, and it was reasonable to wait briefly to assess whether decelerations persisted. A trial of scar required awareness of potential risks but did not impose a fundamentally different management approach. The midwife was required to act on professional concerns, not to summon assistance whenever an event might be a sign of difficulty.
4. The registrar was not negligent in failing to review the claimant before starting the other operation. Doctors and midwives worked through co-operation, and, absent a communication of sufficient concern, the registrar was generally entitled to rely on the midwife’s silence. The need to undertake an operation which might temporarily make him unavailable did not itself require a further review.
5. Non-compliance with the hospital protocol requiring regular assessment at least three-hourly was not, without more, negligent. The protocol was a guideline, and the expert evidence supported flexibility in clinical practice.
6. In any event, even if the registrar had reviewed the claimant before the operation, he would reasonably have continued with the other operation. Causation was therefore not established.

not stated in the judgment.