Cowley v Cheshire & Merseyside Strategic Health Authority

In clinical negligence, a professional practice or policy is not negligent merely because another approach may appear preferable. The court must ask whether the supporting expert opinion has a logical basis, particularly where risks and benefits have been weighed. It is only in a rare case that genuinely held expert opinion will be rejected as incapable of logical support. A hospital policy restricting antenatal corticosteroids to diagnosed preterm labour may fall within the reasonable range, even if a more liberal policy addressing threatened preterm labour would also be reasonable. Causation requires proof on the balance of probabilities that the breach materially caused the injury; a mere loss of a chance is insufficient.

The claimant, Jamie Cowley, alleged that the defendant hospital negligently failed to administer betamethasone to his mother when she was admitted with symptoms said to indicate threatened preterm labour. The drug was administered approximately 24 hours later, after cervical change and diagnosed preterm labour. Jamie was subsequently born prematurely and developed cerebral palsy and other disabilities.

The trial concerned breach of duty and causation. The principal issues were whether the hospital’s 1991 policy, under which corticosteroids were given only after actual preterm labour was diagnosed, fell outside the reasonable range of obstetric practice, and whether earlier administration would have materially improved the outcome.

1. Breach of duty. The court applied the approach in Bolitho v City and Hackney HA (1988) AC 231. The court was not required to accept an expert body of opinion merely because it was genuinely held. The opinion had to possess a logical basis, particularly where it involved balancing clinical risks and benefits. It would nevertheless be rare for genuinely held views of a competent expert to be rejected as unreasonable.
2. The hospital’s policy had a logical basis. In 1991 there was no authoritative guidance requiring corticosteroids in threatened preterm labour. The clinical trials supporting antenatal corticosteroid treatment principally concerned actual preterm labour, ruptured membranes or elective preterm delivery. The policy also avoided unnecessary exposure to corticosteroids and potentially dangerous tocolytic drugs, and reduced the risk that a single course would lose its protective effect before delivery.
3. The policy was within the reasonable range of policies available to competent obstetric units. Dr Fishwick had correctly found that Mrs Cowley was not in active preterm labour: her pain had ceased, there was no significant cervical change, and no imminent delivery was indicated. Her admission for observation was reasonable, and the failure to administer betamethasone on 15 April 1991 was not a breach of duty.
4. Alternatively, even if a reasonable policy should have included threatened preterm labour, Mrs Cowley would not have qualified under an appropriately defined liberal policy. Her condition did not amount to threatened imminent labour, and tocolysis would not have been indicated.
5. On causation, the court found that earlier administration would probably have materially reduced the severity of Jamie’s respiratory distress syndrome and, through the resulting chain of effects, materially improved his brain injury and disability. The court therefore rejected the suggestion that the case involved only a loss of a chance. The claim nevertheless failed because breach of duty was not established.

Order: The action was dismissed.