Aspinall v Secretary of State for Health

In a clinical negligence claim, breach of duty must be assessed by reference to the standard of the ordinary competent practitioner possessing the relevant skill. A practice is not justified merely because some practitioners support it; it must have a responsible, reasonable and logical basis.

Causation remains a separate requirement. The modified approach for cumulative causes applies only where medical evidence cannot establish whether the injury would probably have occurred without the negligence, but can establish a more than negligible contribution. It does not apply where the evidence shows that the injury would probably have occurred in any event.

The claimant, who had cerebral palsy and other serious injuries following his premature birth in 1982, alleged that negligent neonatal treatment caused an intraventricular haemorrhage and resulting brain injury. The claim focused principally on the management of a 45-minute period during which his condition deteriorated and an endotracheal tube was said to have become displaced.

The court also considered allegations concerning resuscitation, hypothermia and later ventilator management. The central questions were whether the treatment fell below the required standard and, if so, whether any breach caused the claimant’s injury.

1. Claim dismissed. The claimant failed to establish either a breach of duty causing injury or that the alleged negligent treatment caused the brain injury.
2. The applicable standard was that in Bolam v Freirn Hospital Management Committee [1957] 1 WLR 582: the ordinary skill of a competent practitioner exercising the relevant special skill. Under Bolitho v City and Hackney Health Authority [1998] AC 232, professional practice relied upon must also have a responsible, reasonable and logical basis.
3. The allegations concerning the number of intubations, hypothermia and later ventilator settings were not made out. Hypothermia did not itself establish negligence, particularly where the evidence showed that it could occur despite reasonable precautions.
4. The central allegation concerning the period between 23:30 and 00:15 failed. The claimant’s theory that the tube had become displaced at 23:30 was speculative. The judge accepted that the doctor would have observed the claimant’s chest movements and breathing, and had acted competently in investigating the deterioration.
5. In any event, the claimant would probably have suffered the intraventricular haemorrhage and brain injury regardless of that period. The modified cumulative-causation approach described in Bailey v The Ministry of Defence [2008] EWCA Civ 883 did not apply because the evidence permitted a clear conclusion that the injury would have occurred in any event.
6. The defendant was entitled to costs, subject to detailed assessment if not agreed and the usual provisions concerning the claimant’s legally aided status.