Keh v Homerton University Hospitals NHS Foundation Trust

In clinical negligence, a patient must receive sufficient information about material risks and reasonable alternatives to make an informed choice. Where induction of labour carries a significantly increased risk of emergency caesarean section, that risk and planned caesarean section as an alternative should be communicated in an appropriate clinical manner.

Compliance with a responsible body of medical opinion does not conclude the issue if the opinion lacks a logical basis. The court must evaluate the expert evidence itself, including its internal consistency and compatibility with the evidence as a whole. On the facts, the inadequate consent discussion was a breach, but the patient would probably have chosen induction in any event. The other allegations, including the alleged failure to perform hysterectomy, failed.

The claimant, the administrator of the estate of Adeline Keh and a dependent, brought negligence claims against the defendant NHS foundation trust following Mrs Keh’s death from sepsis after a caesarean section.

The claim concerned three matters: advice and choice between induction and caesarean section; the timing and duration of the caesarean section; and the alleged failure to consider or perform hysterectomy during the subsequent infection. Damages had been agreed, subject to liability.

The central questions were whether the defendant had breached its duties of care and, if so, whether the breach had caused the death.

1. Consent and choice of delivery. The court applied the approach in Montgomery v Lanarkshire Health Board [2015] UKSC 11. Mrs Keh should have been told that induction carried a significantly greater-than-average risk of emergency caesarean section and that planned caesarean section was an alternative. The information could be conveyed in reassuring clinical language and did not necessarily require precise numerical percentages. The failure to provide that information was a breach of duty.
2. On the evidence, however, Mrs Keh would probably have followed the recommended plan of induction even if properly advised. The breach therefore did not cause loss on this issue.
3. Medical opinion and breach. Applying Bolam v Friern Hospital Management Committee [1957] 1WLR 583, Maynard v West Midlands RHA [1984] 1WLR 634 and Bolitho v City and Hackney Health Authority [1998] AC 232, the court had to decide the issue itself. A body of professional opinion would attract substantial weight, but only if its reasoning was responsible, reasonable and logically defensible.
4. The delay before the caesarean section did not establish breach. The 75-minute period was a target rather than an absolute requirement, and the 93-minute interval was not shown to be unreasonable. The evidence also did not establish that earlier intervention would probably have avoided the infection in the relevant circumstances.
5. The failure to arrange an earlier CT scan and consultant review was accepted or found to be substandard, but the evidence did not establish that hysterectomy should have been performed. Continuing antibiotic and conservative treatment was within reasonable practice. The claim was dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.