PXW v Kingston Hospital NHS Foundation Trust

In a clinical negligence claim, breach of duty is assessed prospectively by reference to what was known, or ought to have been known, at the time. A professional practice relied upon by a defendant must be responsible, reasonable and respectable, and capable of withstanding logical analysis. The court must decide the issue for itself and must not simply defer to expert opinion. Where competing expert views exist, substantial weight may be given to a responsible body of opinion, but the court must examine its good faith, competence, logic, internal consistency and consistency with the evidence as it emerges at trial. Hindsight cannot establish breach or causation.

The claimant, a child born with cerebral palsy, brought a clinical negligence claim against Kingston Hospital NHS Foundation Trust. The claim concerned the management of his mother during an initial attendance at the maternity assessment unit and alleged that she should not have been advised to return home while in the latent stage of labour.

The claimant alleged that, had she remained at hospital, monitoring would have detected fetal abnormalities and led to earlier delivery. The claim concerning the later admission was abandoned during the trial. The court therefore determined whether the first assessment involved breach of duty and, alternatively, whether earlier admission would probably have avoided the injury.

1. Claim dismissed. The claimant failed to establish actionable breach of duty in relation to the first admission.
2. The court applied the principles in Bolam v Freirn Hospital Management Committee [1957] 1 WLR 583 and Bolitho v City and Hackney Health Authority [1998] AC 232. A professional practice must be responsible, reasonable and respectable, have a logical basis, and, where comparative risks are involved, reflect a defensible assessment of those risks. The court remains responsible for deciding whether the opinion and conduct are reasonable.
3. The court adopted the structured considerations identified in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61. These included good faith, competence, responsibility, respectability, logic, internal consistency and consistency with the contemporaneous records and the evidence at trial. Expert evidence must be assessed prospectively and must not be founded on hindsight.
4. The mother was assessed as being in the latent phase of labour. The assessment took approximately 25 minutes, included the necessary maternal and fetal checks, and accorded with the relevant national and local guidance. There was no clinical indication to advise her to remain in hospital. The court preferred the defendant’s midwifery evidence and rejected the criticisms advanced by the claimant’s expert, which were materially affected by hindsight and unsupported assumptions.
5. The hospital’s root-cause investigation did not establish negligence. It had a different purpose, was prepared without evidence from the assessing midwife, and did not apply the legal test. The local flow chart did not assist because the mother had not expressed a wish to remain at hospital.
6. Alternatively, causation was not established. Had the mother remained at hospital, intermittent auscultation would probably not have identified abnormalities by 20:00 and there would have been no basis for commencing CTG monitoring. The acute cord occlusion and damaging hypoxia occurred shortly before birth, and the proposed earlier intervention was not supported by a coherent analysis of the clinical evidence.
7. The court accordingly dismissed the claim and anticipated that the parties would agree an order dealing with the substance of the judgment and costs.