Canning-Kishver v Sandwell & West Birmingham Hospitals NHS Trust

In a medical negligence claim, breach is established where nursing staff failed to respond reasonably to objective signs of serious deterioration in a premature neonate. Normal oxygen saturation or apparently normal colour did not displace the significance of sustained and drastic falls in heart and respiratory rates. On causation, where medical science cannot establish that the injury would probably have been avoided but for the breach, the claimant may nevertheless succeed by proving that the negligent contribution was more than negligible. The court applied that modified approach to the evidence of cerebellar injury and awarded damages to be assessed.

The claimant, born at 25 weeks’ gestation, alleged that negligent neonatal treatment caused cerebellar injury and permanent disability. Liability was tried as a preliminary issue, with quantum to follow. The alleged breaches included failure to investigate and treat metabolic acidosis, failure to administer antibiotics, and failure by nursing staff to summon urgent medical assistance when the claimant deteriorated during the night of 22–23 July 1997.

The central questions were whether the defendant’s staff breached the admitted duty of care and whether the breach caused or materially contributed to the claimant’s brain injury.

1. The claim succeeded on liability, with judgment for the claimant and damages to be assessed.

2. The allegations that the doctors should have investigated and cured the metabolic acidosis, or administered second-line antibiotics, were rejected. The contemporaneous clinical approach did not support that case and was not shown to fall below the standard accepted as proper by a responsible body of medical practitioners, applying Bolam v Friern Hospital Management Committee (1957) 2 All ER 118.

3. The nursing staff were in breach of duty. By about 5.00 am the sodium bicarbonate had only temporarily alleviated the acidosis. By 6.00 am the heart rate had fallen from 161 to 111, and the fall was maintained at 7.00 am. The respiratory rate was also falling sharply. By 7.00 am decompensation was serious and manifest. Reasonable care required the urgent summoning of a doctor, notwithstanding acceptable oxygen saturation and the recorded colour of the claimant as pink. The failure to record blood pressure was also relevant.

4. The court was satisfied that timely medical intervention could have arrested and reversed the deterioration without the later trauma of drastic resuscitation. Breach and factual causation were established on the balance of probabilities.

5. For legal causation, the court applied the approach stated by the Court of Appeal in Bailey v Ministry of Defence [2008] EWCA Civ 883. The evidence did not show that immaturity alone probably caused the cerebellar injury, but residual possibilities prevented success on a strict but-for analysis. The claimant’s experts nevertheless established that the collapse occasioned by the breach made a contribution to the cerebellar atrophy which was more than negligible. That was sufficient for the claim to succeed.