McCoy v East Midlands Strategic Health Authority

Clinical negligence is assessed by reference to the facts known at the time, not hindsight. A clinician is negligent where the treatment falls below the practice accepted as reasonable by a responsible body of professional opinion and the reasoning supporting that practice fails logical scrutiny. A cardiotocograph must be assessed as a whole. Accelerations and fetal movements may be reassuring, but they do not exclude hypoxia, and an uncertain return of the fetal heart rate to baseline may require continued or repeated monitoring. Causation requires proof on the balance of probabilities that proper monitoring would have led to intervention before the injury occurred. A disparity between head and body growth may indicate placental insufficiency, but does not by itself establish oxygen deprivation at the relevant time.

The claimant, a child with diplegic cerebral palsy and learning difficulties, brought a clinical negligence claim under section 1 of the Congenital Disabilities (Civil Liability) Act 1976. She alleged that the defendant’s obstetrician negligently assessed a cardiotocograph as satisfactory on 17 March 1993 and failed to continue or repeat monitoring. The defendant disputed both breach and causation.

The court had to determine whether the trace should have led to further monitoring and, if so, whether further monitoring would probably have resulted in delivery before chronic partial hypoxia caused the claimant’s brain damage.

1. Negligence. The applicable test was the Bolam/Bolitho test: a clinician is not negligent if acting in accordance with a practice accepted as reasonable by a responsible body of peers, provided that the reasoning supporting the practice withstands logical scrutiny. The conduct must be judged by the information available at the time, rather than by hindsight.
2. Interpretation of the trace. The trace showed two decelerations, including one beginning shortly before the recording ended. Its reassuring features included a satisfactory baseline, fetal movements and accelerations. Those features did not eliminate the possibility of hypoxia. The trace had to be considered as a whole, and there was no fixed number, duration or depth of decelerations which automatically determined whether it was normal, suspicious or pathological.
3. Breach established. The obstetrician did not know whether the fetal heart rate had returned to baseline after the final deceleration. In those circumstances, the CTG should have been continued or repeated, or the mother admitted for further monitoring. Describing the trace as satisfactory and failing to do so was negligent.
4. Causation not established. The claimant had to prove that a further trace would probably have been suspicious or pathological and would have led to delivery before injury. The curtailed trace was reactive overall and contained several reassuring features. The claimant did not establish that a further trace would have been suspicious. Nor did the disparity between head circumference and body weight establish oxygen deprivation on 17 March; it indicated nutritional effects of placental insufficiency. The negligence therefore did not cause the brain damage.
5. Disposition. The claim was dismissed.