Wright (A Child) v Cambridge Medical Group (A Partnership)

A negligent delay in referring a deteriorating patient may remain a cause of permanent injury despite a hospital’s subsequent negligence. Later negligence does not automatically break the chain of causation. The court must determine both whether the first breach materially contributed to the injury and whether the injury falls within the scope of the duty.

An urgent-referral duty protects the patient’s opportunity for effective treatment and an adequate margin for human error. Where delay substantially shortens the available treatment window, its effect may continue despite later clinical failings. The first clinician may therefore remain liable, with responsibility between successive tortfeasors addressed through contribution.

The claimant, an infant suffering from an infection that progressed to osteomyelitis and septic arthritis, was not referred to hospital by the defendant general practitioners on 15 April 1998, as she should have been. She was referred two days later, when effective treatment could still have prevented permanent injury. The hospital then failed to diagnose and treat her promptly, causing severe permanent damage to her hip.

Mackay J dismissed the clinical negligence claim in [2010] EWHC 1507 (QB). He inferred from the hospital’s actual performance that it would probably also have treated the claimant inadequately had she been referred on 15 April. The appeal concerned factual causation, the scope of the general practitioners’ duty, successive clinical negligence, divisibility of damage and, alternatively, loss of a chance.

1. By a majority, the appeal was allowed and judgment on liability entered for the claimant. Lord Neuberger MR and Dame Janet Smith held that the general practitioners’ negligent delay materially contributed to the permanent hip injury and that the injury fell within the scope of their duty. Elias LJ dissented on the scope-of-duty issue.

2. Later clinical negligence does not automatically extinguish the causative effect of an earlier tort. The inquiry is fact-sensitive. Here, the delay by the general practitioners and the hospital’s subsequent failings had a continuing and mutually aggravating effect. The hospital’s negligence was neither sufficiently unusual nor sufficiently egregious to destroy the causal link.

3. The duty to refer a deteriorating patient urgently protects more than the patient against damage that has already become inevitable. Prompt referral widens the available safety margin and gives the patient the best opportunity for recovery. The delay of just over two days consumed a substantial part of the treatment window and materially reduced the hospital’s opportunity to correct an error before permanent harm became unavoidable.

4. The judge was not entitled to infer that the hospital would probably have treated the claimant negligently following a Wednesday admission. Where diagnosis is straightforward and treatment simple, competent treatment is presumed unless contrary evidence displaces that inference. The availability of different doctors and weekday consultants, the greater treatment window and the medical evidence concerning the progressive risk of damage meant that the defendants had not displaced it.

5. The claimant’s initial pain and any need for drainage were divisible from her permanent hip injury. Proof that the defendants caused some injury did not, without more, make them liable for every later injury.

6. The proposed loss-of-a-chance claim was unnecessary to the decision. All three members considered that the approach in Gregg v Scott [2005] UKHL 2 effectively prevented the Court of Appeal from extending loss-of-chance principles to personal injury and clinical negligence.

7. Elias LJ would have dismissed the appeal. Although the delay was a factual cause and reduced the opportunity to correct subsequent negligence, he considered the permanent injury outside the referring doctor’s duty once the claimant had reached hospital in time for effective treatment.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal in [2011] EWCA Civ 669 and entered judgment on liability for the claimant.
2. High Court, Queen’s Bench Division: Mackay J dismissed the claim in [2010] EWHC 1507 (QB), holding that causation had not been established because the hospital probably would have provided inadequate treatment even after a timely referral.