Ireland v Secretary of State for Health (Sued As South Tyneside NHS Foundation Trust)

Medical negligence is assessed by the standard of practice accepted by a responsible body of appropriately skilled medical practitioners, subject to the limits identified in Bolitho. The standard is judged by the medical knowledge reasonably available at the relevant time.

Where contemporary literature establishes that an obstetric technique should at least be considered in every case, a hospital’s blanket refusal to offer it may breach the duty of care. A breach does not establish liability without proof that it probably caused the injury. Where the alleged delay is modest, the claimant must establish a probable causal mechanism and a delay sufficient to account for the damage.

The claimant was born with cerebral palsy following hypoxic-ischaemic injury during an assisted breech delivery at South Tyneside District Hospital in August 1992. He alleged that the defendant’s staff were negligent by failing to offer external cephalic version, failing to arrange induction and delivery in a controlled daytime environment, and mishandling the labour and delivery.

The trial concerned liability and causation. The court considered whether external cephalic version should have been offered, whether induction or different staffing arrangements were required, whether the delivery was delayed by negligent conduct, and whether any delay caused the injury.

1. Applicable standard. The court applied the Bolam test, as approved in Maynard and refined in Bolitho. The relevant standard was that of responsible medical opinion in 1992, not present-day practice.
2. External cephalic version. By 1992, the medical literature showed that external cephalic version should at least be considered in each breech case. The defendant’s hospital had a blanket practice of not offering it and had failed to ensure that a consultant could perform it. That was a breach of duty. The claimant would probably have accepted the advice, but the court found that the unusually short umbilical cord, wrapped around the baby’s neck, meant that the procedure would probably have failed. The breach therefore caused no loss.
3. Induction and staffing. The evidence and literature did not establish that induction before 42 weeks was required on obstetric or medical grounds. Nor was there a duty to arrange delivery during working hours. The staffing arrangements and response times were satisfactory.
4. Actual delivery. The approximate timings did not establish delay by the midwife or doctors. Transfer to theatre was reasonable in the emergency. There was no cogent evidence that organised pushing was required or would have accelerated delivery.
5. Causation. The cerebral palsy resulted from hypoxic-ischaemic injury caused by compression and strangulation of the cord. The injury occurred over approximately five to ten minutes at the end of labour. The robust approach to causation in Roadrunner v Dean, Bailey v MoD, Drake v Harbour and Phethean-Hubble v Coles did not assist because the claimant had not proved a material delay or a probable causal mechanism linking any breach to the injury.
6. Disposition. The claim was dismissed.