Telles v South West Strategic Health Authority

Medical negligence is assessed by the standards and medical knowledge prevailing at the time of treatment. A clinician is not negligent merely because a decision later proves wrong, particularly where it involved a fine clinical judgment and was supported by a responsible body of professional opinion. The court must examine the reasoning behind expert opinion and consider whether the approach has a logical basis. Where negligent treatment causes indivisible damage, and the court cannot make a principled apportionment between tortious and non-tortious causes, the claimant may recover in full. A recognised surgical complication may nevertheless establish negligence where reasonable precautions should have detected and eliminated the relevant risk.

The claimant brought a clinical negligence claim arising from treatment for a congenital heart defect shortly after her birth in 1985. She alleged negligence in the performance of the first shunt operation, in the management between that operation and a further operation, and in a later open-heart operation.

The central issues were whether the treatment fell below the applicable professional standard, whether the alleged breaches caused neurological damage, and whether any damage could be apportioned between pre-operative and post-operative hypoxia. The court determined liability only.

1. Applicable standard. The court applied the principles in Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582, as followed and explained in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and Bolitho v City and Hackney Health Authority [1998] AC 232. Treatment had to be judged by the standards and state of medical knowledge in 1985, not with the benefit of subsequent knowledge.
2. It was not negligent to permit an experienced Senior Registrar to undertake the relevant operation where he had the necessary experience, training and ability. Nor was the decision not to proceed with a closed valvotomy negligent: it was a cautious exercise of surgical judgment supported by the evidence.
3. The first shunt was too long and kinked. The surgeon should have checked for redundancy before completely closing the chest. On the balance of probabilities, he negligently failed to recognise and correct the risk of kinking.
4. The decision not to restart prostaglandin or re-operate before 12 May 1985 was not negligent. Although later shown to have been wrong, it was a fine clinical judgment made in light of the knowledge available in 1985, the child’s general condition, possible respiratory contribution to the hypoxia and the risks of further intervention.
5. The court found that periventricular leukomalacia was caused by hypoxia, which could occur without ischaemia or acidosis. The claimant suffered damage throughout the relevant period, but medical evidence could not establish what proportion was attributable to the period before the negligent operation. Applying the agreed principle derived from Dingle v Associated Newspapers [1961] 2 QB 169, the claimant was entitled to recover in full for the PVL damage.
6. The allegation concerning the later operation failed. The court was not satisfied that an air embolism caused the neurological insult, or that any resulting damage was proved on the balance of probabilities. Global damage associated with the congenital heart defect was not recoverable.

First-instance liability judgment. No prior or subsequent appellate decision is stated in the judgment.