Loraine v Wirral University Teaching Hospital NHS Foundation Trust

A hospital may be liable where an unsafe system prevents clinicians from accessing material records of a patient’s previous treatment. Where those records would probably have revealed a significant obstetric complication, the hospital must assess the resulting risks and adopt reasonably prudent management, including admission where appropriate. Liability is not excluded because the precise mechanism producing the injury was unforeseeable. It is sufficient that the kind of harm was a foreseeable consequence of the breach, even though it arose through an unforeseeable mechanism.

The claimant, a child suffering from cerebral palsy caused by foetal asphyxia, claimed damages arising from the management of his mother’s pregnancy at Arrowe Park Hospital. The hospital’s records of her earlier pregnancies included a significant uterine fibroid and a previous footling breech presentation, but those records were not supplied to the clinicians managing her fifth pregnancy.

The claimant alleged that the defendant should have identified the fibroid and admitted his mother to hospital when an unstable oblique or transverse lie persisted at 37 weeks and five days. The principal issues were whether the hospital’s record-management system was negligent, whether admission would probably have avoided the injury, and whether liability was excluded because the injury resulted from placental abruption rather than the foreseeable risk of cord prolapse.

1. Liability established. Judgment was entered for the claimant on liability. The issue of quantum was left for further judgment if not agreed.
2. The hospital’s practice of relying on a patient to identify previous complications, and retrieving records only if the patient’s account suggested that they might be relevant, was an unsafe and flawed system. A hospital owes its patient a reasonable regime of care, including systems which make relevant information available to the clinicians responsible for management. The reasoning in Robertson v Nottingham Health Authority, [1997] 8 Med LR 1, materially supported that conclusion.
3. Had the earlier records been supplied, the fibroid would probably have been detected by ultrasound before 18 August 2000. Its size and location, together with the persistent unstable lie and previous footling presentation, would have indicated a real danger of obstructed delivery and cord prolapse. Reasonable prudence required admission to hospital on 18 August 2000. The conclusion was consistent with the standards described in Bolam v Friern Hospital Management Committee, [1957] 1 WLR 583, and Bolitho v City and Hackney Health Authority, [1998] AC 232.
4. The claimant’s injury was legally foreseeable. The relevant question was whether the kind of damage was foreseeable, not whether the precise mechanism was. Cerebral palsy resulting from foetal asphyxia was the foreseeable type of harm associated with the risk against which admission would have protected, although the actual asphyxia resulted from profound placental abruption rather than cord prolapse. The principle in Hughes v Lord Advocate, [1963] AC 837, was applied.
5. The authorities relied on by the defendant did not alter that conclusion. Brown v Lewisham, [1999] Lloyd’s LR Med 110, was explained; R v Croydon Health Authority, [1998] Lloyd’s LR Med 44, and Thompson v Bradford, [2005] EWCA Civ 1439, were distinguished on the basis that the relevant harm or the relationship between breach and harm was not comparable.

First-instance judgment. No prior appellate decision was stated in the judgment.