Shaw v South Tees Hospitals NHS Foundation Trust

In clinical negligence cases, expert agreement does not determine the standard of care. The court must assess the evidence itself and may accept a professional opinion only if it has a logical and defensible basis. A competent specialist who carefully performs a screening scan and reasonably concludes that the relevant structures have been visualised is not negligent merely because another expert would have ordered further investigation. Negligence is established only where no reasonably competent practitioner could have reached that conclusion on the information available at the time.

The claimant sought damages for the additional costs of caring for her daughter, who was born with Aicardi Syndrome following an undiagnosed absence of the cavum septum pellucidum. The defendant conceded causation. The preliminary issue was whether the consultant who performed the 21-week fetal anomaly scan had acted negligently by reporting normal brain development without referring the claimant for a further scan.

The court considered the applicable standard of care, the national screening guidance, and competing expert evidence concerning the quality and interpretation of the ultrasound images.

1. Applicable principles. The court applied the principles in Bolitho v Hackney Health Authority [1996] 4 All E R 771. A court must not simply accept an expert body of opinion. It must determine whether the opinion is responsible, reasonable and logically defensible. The court must undertake that assessment itself.
2. The further guidance in “C” v North Cumbria University Hospitals NHS Trust [2014] EWHC 61QB was applied. Relevant considerations included good faith, competence, responsibility, respectability, internal logic, consistency with the evidence, and whether the expert had addressed the relevant circumstances at the time of the alleged negligence.
3. Standard of care. The issue was whether the consultant exercised reasonable care and skill in carrying out the scan and deciding that there was sufficient evidence of the cavum septum pellucidum. If a scan is performed competently and carefully, and the practitioner reasonably concludes that the relevant structures have been seen, signing off the screening is not negligent merely because another competent practitioner would have arranged a further scan. The decisive question is whether no reasonably competent practitioner could have reached that conclusion.
4. Application. The judge found that the consultant was honest, diligent and careful. She took additional images, assessed the scan in real time, and genuinely believed that she had seen sufficient evidence of the relevant structure. The defendant’s expert gave a logical and persuasive explanation of the apparently abnormal echoes and the limitations caused by the fetal position, maternal body mass and interference in the images. The claimant’s expert’s opinion was materially affected by hindsight and was less persuasive.
5. The claimant therefore failed to prove breach of duty. The claim was dismissed.