CDE v Surrey and Sussex Healthcare NHS Trust

In a clinical negligence claim, breach of duty does not establish causation. The claimant must prove, on the balance of probabilities, that the breach caused the injury. A hospital and its clinicians may be liable where staff fail to implement an appropriate consultant decision, fail to reassess a patient whose condition materially changes, or maintain misleading and inadequate clinical records. The standard remains that of the reasonably competent practitioner exercising the relevant skill, assessed by reference to the post being performed. Expert opinion relied upon to establish reasonable practice must have a logical and defensible basis. Where a defendant’s breach makes relevant evidence difficult to obtain, the court may assess the claimant’s evidence benevolently and draw appropriate adverse inferences. On the facts, breaches were established, but the claimant failed to prove that earlier assessment or delivery would have avoided the brain injury.

The claimant, a child represented by her mother, brought a liability claim against an NHS Trust arising from severe hypoxic-ischaemic injury sustained before, during and shortly after her birth by emergency caesarean section. The claim alleged that the Trust delayed transferring her mother from the antenatal ward to the labour ward, failed to undertake timely monitoring and assessment, and thereby delayed delivery. The central issues were whether the relevant midwifery and obstetric care fell below the required standard and, if so, whether the delay caused or materially contributed to the claimant’s cerebral palsy.

1. Breach. Applying Bolam v Frien Hospital [1957] 1 WLR 582 and Bolitho v City and Hackney HA [1998] AC 232, the court held that the Trust breached its duty. The midwife failed to implement the consultant’s decision to transfer the mother to the labour ward, failed to reassess her or commence appropriate monitoring during the delay, and kept inadequate clinical records. The acting registrar failed to ensure the transfer, failed to inform the incoming consultant of the increased pain, and made a misleading rewritten note.
2. The standard applicable to a junior doctor is the standard of skill and care appropriate to the post being performed, irrespective of the doctor’s personal experience: FB v Princess Alexander Hospital NHS Trust [2017] EWCA Civ 334.
3. Causation. The claimant had to prove factual causation. The court found that an earlier transfer would probably have led to earlier monitoring and assessment, but the evidence did not establish that a category one caesarean section would have been decided upon before the bradycardia emerged. The emergency was sudden and exceptionally rare. Delivery would probably have occurred at substantially the same time even on the counterfactual scenario.
4. The court considered the evidential principles in Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 and Wisniewski v Central Manchester Health Authority [1998] PIQR p 324, including the possibility of adverse inferences where relevant evidence is unavailable through the defendant’s conduct or omission.
5. The claim therefore failed on factual causation, despite the breaches of duty being established. The court did not need to determine the disputed law on material contribution.