Cox v The Secretary of State for Health

In a clinical negligence claim, the hospital and clinicians must be judged by the standards reasonably applicable at the time of the events. A claimant must establish breach on the balance of probabilities; the existence of a possible faster or different treatment does not itself establish negligence. A practice is not below the required standard merely because another approach might have reduced delay, unless the alleged precaution was required by accepted professional practice or otherwise formed part of reasonable care at the time. Expert evidence must remain independent of the litigation. Where the evidence shows prompt clinical decision-making and treatment consistent with the standards then prevailing, no breach is established.

The claimant suffered severe brain injury after her umbilical cord prolapsed shortly after the vaginal delivery of her twin sister in 1986. She alleged that the defendant was liable for failures in the organisation of the delivery suite and that the attending obstetrician should have performed a vaginal breech extraction rather than transferring her mother for emergency Caesarean section.

The parties agreed that delivery 10 minutes earlier would probably have avoided the injury. The issues were whether the hospital should have provided facilities for Caesarean section on the labour ward, whether such facilities would have achieved earlier delivery, whether the transfer and Caesarean decision breached the required standard, and whether breech extraction should have been attempted.

The claim was dismissed. The court held:

1. Applicable standard. Clinical negligence was to be assessed by the standard of the reasonably competent practitioner exercising the relevant skill, having regard to accepted professional practice and to the standards prevailing in May 1986. The burden remained on the claimant to prove breach on the balance of probabilities. The principles were taken from Sardar v NHS Commissioning Board [2014] EWHC 38.
2. Hospital arrangements. The labour ward handbook was not in use when the twins were born. Although the hospital had a larger room, an anaesthetic machine and appropriate clinical staff available for twin deliveries, there was no established practice of performing Caesarean sections in the delivery suite. The evidence did not establish that a reasonably competent obstetric unit in 1986 was required to maintain a rapidly convertible labour-room operating facility.
3. Timing. Even if such facilities ought to have been provided, the claimant had not shown that the necessary staff, equipment and preparation could have been assembled without materially extending the time required for anaesthesia and surgery. The proposed arrangement therefore had not been shown to deliver the child at least 10 minutes earlier.
4. Clinical decisions. The transfer to theatre was prompt and efficient. The decision not to attempt breech extraction was reasonable in light of the absence or paucity of liquor, the oblique presentation, the tangled cords and the risks of the procedure. No breach of duty was established.
5. Expert evidence. Expert evidence must be the independent product of the expert and uninfluenced by the exigencies of litigation. The court applied the principle stated in Whitehouse v Jordan [1981] 1 WLR 246 at 256. The relevant evidence was examined with particular care, but remained admissible and sufficient for determination.
6. The court rejected the defendant’s alternative argument that the timing evidence itself defeated the claim. Breach and causation were distinct questions: if the alleged breach had been proved and had probably achieved delivery 10 minutes earlier, causation would have followed.