Lennie (A Child) v Royal Victoria Infirmary & Associated Hospitals NHS Trust

A party cannot ordinarily advance a materially new case on appeal where it was not put at trial and the opposing party had no opportunity to adduce evidence in response.

In clinical negligence claims, the court must assess the whole clinical picture. A transient episode of fetal bradycardia following an epidural did not require syntocinon to be stopped where a recent fetal blood sample was reassuring, the heart rate recovered after appropriate management, and no other signposts required discontinuance.

Causation cannot be established merely from a temporal association or from reports that an adverse event occurred after administration of a drug.

The claimant, a child born with cerebral palsy caused by placental abruption, brought a clinical negligence claim against the hospital trust. The trial judge, His Honour Judge Langan QC, dismissed the claim on 11 March 2006.

On appeal, the claimant challenged the attempted forceps delivery, the increase in syntocinon at about 17.48, the response to fetal bradycardia after an epidural, and the finding on causation. The forceps and causation arguments were reformulated on appeal. The central questions were whether the trial judge had erred in assessing the medical evidence and whether the claimant could advance cases not properly presented at trial.

The appeal was dismissed unanimously.

1. New forceps case. The claimant could not rely on a new argument that the failure of the forceps delivery itself permitted an inference of negligence. The argument had not been advanced at trial, the defendants had not been given notice of it, and evidence had not been adduced to meet it. The existing “head too high” case had been rejected by the trial judge and was not pursued on appeal.
2. Increase in syntocinon. The trial judge was entitled to find that increasing the dose to 9.6 millilitres per hour was not negligent. Labour progress was reasonably regarded as slow, the fetal blood sample was satisfactory, the single deceleration had rapidly recovered, and contractions were not consistently at the desired rate. The alleged significance of the fetal position had not been put to the treating doctor and the appellate court should not retry the expert evidence.
3. Bradycardia after the epidural. The trial judge was entitled to accept that the transient bradycardia was plausibly associated with the epidural and maternal movement. The recent normal fetal blood sample, recovery after placing the mother on her left side, and absence of other signposts meant that continuing syntocinon was defensible. The appellate court interpreted the trial judgment as accepting the whole of that reasoning and found no sufficient basis for interference.
4. Causation. The claimant’s argument that the baby would probably have been delivered safely before the abruption if syntocinon had been stopped was a new causation case and could not be raised on appeal or used to obtain a retrial. In any event, the evidence did not establish that syntocinon-induced hyperstimulation caused the abruption. A temporal association and drug-sheet reports of abruption after administration were insufficient without supporting evidence of mechanism or reliable clinical literature.

• Court of Appeal (Civil Division)—on 14 June 2006, dismissed the appeal: [2006] EWCA Civ 975.
• High Court, Newcastle upon Tyne District Registry—His Honour Judge Langan QC dismissed the negligence claim on 11 March 2006.