Dainton v Powell

In a clinical negligence claim involving infant screening for congenital dislocation of the hip, a normal or negative screening manoeuvre does not exclude an underlying abnormality. Where examination findings raise a suspicion of abnormality, the appropriate response is prompt referral to an orthopaedic specialist or a further examination within a short period. A review several months later is inadequate where the condition requires early diagnosis and treatment. A claimant must also establish that competent follow-up would probably have led to earlier diagnosis and a materially better outcome.

The claimant brought a clinical negligence claim against her former general practitioner. She alleged that, when she was nine weeks old in April 1988, the defendant failed to recognise signs of congenital dislocation of the right hip and failed to refer her for specialist assessment.

The claimant had been examined two weeks earlier by another GP, who recorded that her hips were rather stiff and advised re-examination. The defendant later recorded that the hips seemed acceptable that day and apparently advised a further check in nine to twelve months. The condition was diagnosed only when the claimant was seven years old, by which time surgery was required.

The court conducted a preliminary trial of breach of duty and causation.

1. Findings on the earlier examination. The note recording that the claimant’s hips were rather stiff showed that Dr Oppenheimer had completed an examination and observed limitation of abduction, rather than being unable to examine the claimant. Limitation of abduction was a classic sign of dislocation. The claimant’s right hip was already fully dislocated at that stage.
2. Defendant’s breach of duty. The defendant understood, or should have understood, that the earlier examination had raised a suspicion of abnormality. Although the Ortolani/Barlow test might have been negative, limitation of abduction remained present and should have been detected. The defendant’s proposal to check the hips only after several months demonstrated an inadequate understanding of the condition and the importance of early diagnosis. She should either have referred the claimant immediately to an orthopaedic specialist or arranged a further examination within two or three weeks.
3. Causation. On the balance of probabilities, a prompt referral would have resulted in an x-ray and diagnosis, or at least monitoring leading to diagnosis before walking commenced. Early treatment would probably have involved closed reduction, followed by immobilisation in plaster and splinting. That treatment would probably have avoided disability until middle age and materially improved the prognosis.
4. Disposition. Judgment was entered for the claimant on breach of duty and causation. Damages were to be assessed, and the parties were directed to seek directions for the quantum proceedings.