Rich v Hull and East Yorkshire Hospitals NHS Trust

In assessing whether antenatal corticosteroids should be prescribed before an anticipated pre-term delivery, the question is one of clinical judgment. A clinician should consider corticosteroids where there is a clinical suspicion that delivery may occur within the next 1–7 days. A mere background risk of pre-term delivery is insufficient, and the relevant factors should not be reduced to a rigid numerical test.

For causation, epidemiological evidence must be evaluated on the available evidence. A court cannot adjust relative-risk figures through unsupported speculation or quasi-Bayesian reasoning. Where negligence materially contributes to the severity of an indivisible injury through a continuous pathological process, the principle in Bailey v Ministry of Defence may apply, even though the court cannot prove that the injury would have been avoided altogether.

The claimant was born prematurely by emergency Caesarean section in 1993 and later developed respiratory distress syndrome, requiring ventilation, followed by periventricular leukomalacia and cerebral palsy. She alleged that the defendant’s obstetrician should have considered antenatal corticosteroids when examining her mother on 8 June 1993.

The principal issues were whether the failure to consider corticosteroids constituted a breach of duty and, if so, whether treatment would probably have prevented or materially reduced the respiratory distress syndrome and resulting brain injury. The claim was tried on liability and causation, with quantum reserved.

1. Standard of care. By 1992, the evidence supporting antenatal corticosteroids for women at risk of delivery before 34 weeks was sufficiently robust that the treatment should have been within a competent obstetrician’s range of interventions. The 1992 recommendation did not, however, prescribe a rigid algorithm or timing rule.
2. Content of the duty. The relevant question was a single, integrated exercise of clinical judgment. The duty was to consider maternal corticosteroids where the obstetrician had, or ought to have had, a clinical suspicion that delivery might occur within the next 1–7 days. The requirement for some evidence crystallising the risk into something more than a theoretical possibility was reasonable and was supported by a responsible body of clinical opinion.
3. Breach. Although Professor Purdie’s practice and reasoning were unduly restrictive, the claimant failed to establish that he ought to have concluded that delivery might occur within the following seven days. His failure to consider corticosteroids on 8 June was therefore not negligent. The claim consequently failed on breach of duty.
4. Alternative causation findings. Had corticosteroids been required on 8 June, the claimant had not proved on the balance of probabilities that respiratory distress syndrome would have been avoided altogether. The available epidemiological evidence did not permit the court reliably to adjust the relative-risk figures or quantify the effect of treatment on the eighth day after administration.
5. On the assumed premise that treatment should have been given, the corticosteroids would have materially reduced the severity of the respiratory distress syndrome, which materially contributed to the severity of the periventricular leukomalacia. Applying the ratio of Bailey v Ministry of Defence [2009] 1 W.L.R. 1052, that would have entitled the claimant to recover in full. Those findings were alternative only. There was judgment for the defendant.