Maguire v North West Strategic Health Authority

A contribution or indemnity claim requires the statutory conditions under the Civil Liability (Contribution) Act 1978, including liability by the proposed contributor for the same damage. In clinical negligence, a court should not prefer one professionally respectable body of opinion to another. A clinical opinion may be rejected only if it cannot be logically supported. A non-urgent follow-up appointment and discharge advice permitting contact with either hospital or general practitioner may be reasonable where the clinical risk, resources and safety-net arrangements justify them. Hindsight cannot convert a reasonable clinical system into negligence.

The claimant general practitioner sought an indemnity or contribution from the defendant health authority in respect of sums paid following the compromise of a child’s clinical negligence claim. The underlying injury followed meningitis after a recurrent cerebro-spinal fluid leak was not identified during a home visit by the claimant.

The claimant alleged that the hospital was negligent in arranging a delayed follow-up appointment and in failing to require the child’s parents to return directly to hospital if leakage recurred. The central issues were breach of duty, causation and the statutory entitlement to contribution.

1. The claim for contribution or indemnity failed. Under section 1(1) of the Civil Liability (Contribution) Act 1978, the claimant had to establish, among other matters, that the defendant was liable for the same damage. No servant or agent of the defendant was negligent.
2. The October 1993 appointment was a routine, non-urgent review. In the circumstances, arranging it several months after discharge did not fall below the required standard. The parents had been told to seek medical advice if they were worried, and the timing reflected the absence of continuing leakage, the intended purpose of the appointment and available clinical resources.
3. A responsible body of clinicians could reasonably decline to perform a tilt test at an earlier appointment where there was no history of recurrent leakage. Such a test could disrupt healing and provoke a serious recurrence. Applying the principles in Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, Bolitho (Deceased) v City and Hackney HA [1998] A.C. 232 and Maynard v West Midlands RHA [1984] 1 WLR 634, the court was not entitled simply to prefer the claimant’s expert opinion. The defendant’s approach was logically supportable.
4. The discharge advice was adequate. It was reasonable to allow the parents to contact either the hospital or a general practitioner. A competent general practitioner could recognise the significance of a possible cerebro-spinal fluid leak, seek hospital advice or arrange readmission. The advice did not have to exclude general practitioners from the assessment process.
5. The claimant had himself been negligent during the home visit, but that finding could not establish a contribution claim where the defendant’s breach was not proved. The claim was dismissed. The parties were directed to seek agreement on the consequential order, with the matter to be relisted urgently if necessary.