CJL (A Child) v West Midlands Strategic Health Authority

Medical negligence is assessed by asking whether the conduct fell outside the range of practice accepted as proper by a responsible body of reasonably competent practitioners, judged by the knowledge and standards prevailing at the relevant time. Causation requires the court to determine what should and probably would have happened absent the breach, on the balance of probabilities. In an emergency, the required response must be assessed against the particular clinical circumstances, including the seriousness of the risk, rather than by mechanically applying average timings from other cases.

The claimant suffered cerebral palsy following an acute hypoxic-ischaemic injury during labour in 1987. The claim against the defendant health authority concerned liability for clinical negligence by the attending midwives and the on-call obstetrician.

The parties agreed that the obstetrician should have attended within five minutes of being called. The issues were when the call should have been made, whether the midwives were in breach, and what the obstetrician should and probably would have done had she arrived at the proper time. The judgment determined liability only.

1. Applicable legal test. The court applied the approach stated in Bolitho v City and Hackney HA [1998] AC 232. The question was whether the acts or omissions fell outside the range of reasonably competent practitioners in midwifery and obstetrics in 1987. On causation, the court had to determine what should and probably would have happened absent the breach, and whether that would have avoided or materially reduced the injury.
2. Midwives. The emergency call was probably made at about 21.35. Both expert midwives gave responsible and reasonable opinions, although one would have required an earlier call. The court preferred, if necessary, the view that a call was not required before 21.35. The midwives therefore acted within the range of acceptable practice and were not in breach.
3. Obstetrician. The obstetrician should have arrived at 21.40. A reasonably competent obstetrician should then have recognised an obstetric emergency and decided to intervene within three minutes, including the vaginal examination. More than one further contraction, or two minutes, to prepare for intervention and apply the forceps would have fallen outside acceptable practice.
4. Causation and timing. The particular facts were more important than average decision-to-delivery intervals in medical literature. The claimant’s head was in a favourable position and advancing well, and natural delivery followed within 15 minutes of the assumed arrival time. Two forceps tractions were more likely than one. Delivery should and probably would have occurred at 21.49, followed by resuscitation at 21.50, six minutes earlier than in fact.

The findings established breach by the defendant through the obstetrician’s delayed attendance and established causation on the balance of probabilities. The judgment determined liability only.