PXE v University Hospitals Birmingham NHS Foundation Trust

In a clinical negligence claim, the Bolam standard is applied by reference to the ordinary competent practitioner occupying the relevant post at the material time. A court must scrutinise whether the supporting expert opinion has a logical basis and reaches a defensible conclusion, including by addressing comparative risks and benefits. It must not prefer one tenable clinical view over another merely because it considers that view preferable.

A genuine difference of professional opinion may therefore defeat a claim where the defendant’s approach falls within the range of reasonable practice. The assessment must reflect the clinical resources and working conditions existing at the time.

The claimant, who suffered permanent brain damage following foetal growth restriction and perinatal hypoxia, alleged that the defendant’s midwives and obstetricians negligently failed to treat his mother’s reported history of recurrent cystitis and kidney scarring as requiring consultant-led care and serial growth scans.

The trial concerned liability only. The central issue was whether a reasonably competent obstetrician working in a district general hospital in 2008 should have recognised that reflux nephropathy without renal impairment carried an increased risk of intrauterine growth restriction and therefore required growth scans from about 28 weeks. The court also considered factual causation if breach had been established.

1. Claim dismissed. The claimant failed to establish breach of duty. The burden was on him to prove negligence on the balance of probabilities.
2. The applicable standard was the ordinary skill and care of a reasonably competent midwife or obstetrician exercising the relevant special skill at the material time. The standard was judged by reference to the post being fulfilled, rather than the individual practitioner’s personal experience.
3. Under the Bolam and Bolitho principles, a body of professional opinion could defeat the claim only if it had a logical basis and reached a defensible conclusion. The court was not required to choose between two tenable clinical approaches.
4. The mother’s reported kidney scarring had to be taken at face value in real time unless displaced by further investigation. It was therefore incumbent on the midwife to refer her for further obstetric review before finalising the low-risk classification. That failure did not cause the injury because the consultant subsequently reviewed the case.
5. The consultant’s decision to retain the pregnancy on the low-risk, midwife-led pathway was nevertheless reasonable. The mother had no evidence of renal impairment, proteinuria, hypertension or urinary infection at the relevant time. The contemporaneous literature did not clearly establish that reflux nephropathy without impaired renal function increased the risk of intrauterine growth restriction. The contrary expert views represented a genuine difference of opinion, and the defendant’s approach had a logical and defensible basis in the clinical circumstances and resources available in 2008.
6. Alternatively, if breach had been established, factual causation would also have been established. A face-to-face review would probably have produced the same low-risk management, but the court accepted that, if a known association between reflux nephropathy and growth restriction had existed, growth scans would probably have led to earlier delivery and avoided the injury.
7. Medical causation would likewise have been established if necessary, since earlier detection of the small fetus would probably have led to monitoring, recognition of deterioration and earlier delivery.