KA & Anor v East Midlands Ambulance Service NHS Trust

In medical negligence, a conscientious clinical judgment made in an emergency is not immune from liability merely because the practitioner faced a genuine dilemma or chose between courses carrying different risks. The question remains whether the decision accorded with the practice accepted as proper by a responsible body of suitably skilled professionals. Good intentions and an honest attempt to protect the patient do not displace that objective standard. A court need not quantify the precise extent of every competing risk before applying it. On a second appeal, permission requires an important point of principle or practice not already established by the Court of Appeal, or another compelling reason.

A mother and her child brought negligence proceedings after an antenatal emergency and delay in transporting the mother to hospital. The High Court, per Mitting J, entered judgment for the child with damages to be assessed, finding that the delay determined the child’s devastating injury. The defendant sought permission to challenge the admission of an unredacted expert report, following case-management decisions by District Judge Phillips, Master Cook and Mitting J, and to challenge the finding of negligence. The Court of Appeal considered the second-appeal threshold under Civil Procedure Rules 1998, r 52.13(2), and whether the proposed first appeal had any prospect of showing the judgment wrong or disclosed another compelling reason.

The applications for permission to appeal were dismissed.

1. The challenge to the admission of Dr Longstaff’s unredacted report was a proposed second appeal. Under Civil Procedure Rules 1998, r 52.13(2), permission required either an important point of principle or practice, meaning a point not yet established by the Court of Appeal, or some other compelling reason. The proposed equality-of-arms point had already been dealt with by the Court of Appeal. Mitting J had addressed the relevant prejudice and reached a conclusion within his case-management jurisdiction. Neither limb was satisfied.
2. The negligence challenge was based on the submission that the ambulance technicians faced a genuine dilemma between immediate transfer and administering intravenous fluids first. The judge had recognised that dilemma, their conscientious intentions and the risks attached to both courses. Those matters did not prevent an objective finding of negligence.
3. Applying the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587, the question was whether the technicians acted in accordance with a practice accepted as proper by a responsible body of emergency medical technicians skilled in their profession. The expert evidence established that immediate transfer was the only reasonable response. The judge was therefore entitled to find that the technicians’ decision fell below the objective professional standard and caused injury, despite their good faith.
4. The judge was not required to quantify the precise extent of each competing risk or address every submission individually. It was sufficient that he identified the basis of his decision and dealt with the material evidence and criticisms. There was no prospect of successfully showing that the judgment was wrong and no other compelling reason to grant permission for a first appeal. The decision of Tomlinson LJ on the papers was confirmed.

1. High Court of Justice, Queen’s Bench Division: On 27 November 2015, Mitting J ordered judgment for the second claimant, with damages to be assessed, after finding that the delay in transport caused the relevant injury. In related case-management proceedings, he allowed the challenge to Master Cook’s redaction of Dr Longstaff’s report and directed that the report be admitted unredacted.
2. Court of Appeal (Civil Division): The renewed applications for permission to bring a second appeal on the expert-evidence issue and a first appeal on the negligence finding were dismissed.