AB v East Lancashire Hospitals NHS Trust

In a clinical negligence claim, the Bolam test requires the court to determine whether the treatment accorded with a practice accepted as proper by a responsible body of skilled practitioners. The court must evaluate the logic of expert evidence under Bolitho, but must not prefer one responsible body of opinion merely because it appears more persuasive. The significance of a clinical finding must be assessed in its proper gestational and clinical context. A retroplacental haematoma at 16 weeks, without vaginal bleeding, did not require consultant-led care or serial growth scans. Cardiotocograph features in a pre-term fetus had to be assessed by reference to that gestational age. A widely held medical hypothesis, unsupported by sufficient scientific evidence, did not establish causation on the balance of probabilities.

The claimant, an eight-and-a-half-year-old child with right-sided hemiplegic cerebral palsy caused by perinatal arterial ischaemic stroke, brought a claim through her litigation friend against the defendant NHS Trust. She alleged negligent antenatal care in November 2010, when a scan identified a small retroplacental haematoma at 16 weeks, and in February 2011, when she presented with abdominal pain and cardiotocograph traces were recorded at 30 weeks.

The trial concerned liability only. The claimant alleged that consultant-led care and serial growth scans should have followed, leading to earlier delivery and avoidance of the stroke. The defendant denied breach and causation. The central issues were whether the antenatal management fell below the required standard and whether placental embolisation probably caused the stroke.

1. Outcome. The claim was dismissed. The claimant failed to establish breach of duty on either alleged occasion and failed to establish medical causation.
2. Applicable standard. Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, the question was whether no reasonably competent obstetrician would have acted as the treating clinicians did, or as the hypothetical consultants said they would have acted. Differences between responsible bodies of medical opinion were not, by themselves, sufficient for negligence. Under Bolitho v City and Hackney HA [1998] AC 232, the court retained responsibility for evaluating whether expert opinion was reasonable and logically supported.
3. November 2010. A small retroplacental haematoma at 16 weeks, in the absence of vaginal bleeding, was noteworthy but clinically innocuous. The definition and management of antepartum haemorrhage after 24 weeks could not simply be transferred to an early-pregnancy finding. The terms retroplacental haematoma, antepartum haemorrhage and placental abruption were not interchangeable for the purposes of risk, investigation and management. Routine antenatal care was reasonable.
4. February 2011. The cardiotocographs were to be assessed in light of the fetus being pre-term. The features relied upon by the claimant were generally compatible with a healthy fetus at that gestation. The absence of accelerations was, at most, equivocal and did not require enhanced antenatal care. The resolved abdominal pain, viewed with the normal traces and earlier scan finding, did not alter that conclusion.
5. Causation. The evidence established only that placental embolisation was possible or hypothesised. It did not establish a well-founded causal link between placental pathology and perinatal stroke, nor that placental embolisation was more probable than the other possible causes. Applying Wilsher v Essex Area Health Authority [1988] AC 1074, causation was not proved. The court did not need to resolve the separate dispute about the delay between the alleged brain injury and the appearance of neurological signs.

First-instance judgment on liability. The judgment records no prior appellate decision.