Sidney Conway v Yeovil District Hospitals NHS Foundation Trust & Anor

In a clinical negligence claim involving injury caused by a third party, the scope of a medical duty is defined by the risks which the defendant undertook to address. It is not retrospectively enlarged by facts unknown, and not reasonably suspected, at the relevant time. A defendant’s duty to investigate or treat a patient’s medical condition does not generally extend to protecting the patient from every consequence of discharge into another person’s care.

The scope-of-duty issue may defeat a claim before factual causation is considered. Separately, under Bolam as refined by Bolitho, a claimant must show that the defendant’s treatment fell outside a responsible, logical and defensible body of medical opinion.

Sidney Conway brought a clinical negligence claim against Yeovil District Hospitals NHS Foundation Trust and University Hospitals Bristol and Weston NHS Foundation Trust. He alleged that, during hospital treatment in January 2015, the defendants negligently failed to arrange a prompt ultrasound scan of his head after investigations did not confirm the suspected diagnosis of pyloric stenosis.

It was accepted that a scan would probably have revealed earlier abusive head trauma and triggered protective procedures. Sidney was nevertheless discharged, after which his mother inflicted further catastrophic injuries. The issues were whether the defendants owed a duty encompassing the risk of those later injuries and, if so, whether the decision to monitor his head circumference rather than arrange an urgent scan was negligent.

1. Scope of duty. Applying the analytical framework in Meadows v Khan [2022] AC 852, the relevant duty was to take reasonable steps, in the Bolam/Bolitho sense, to respond to the risk of deterioration in or failure to recover from an ongoing medical condition. It was not a duty to protect Sidney from every consequence of discharge into parental care.
2. The scope of duty was not retrospectively enlarged by the fact that Sidney’s mother had inflicted the earlier injuries. The defendants neither knew nor ought reasonably to have suspected that risk. The later assault provided an opportunity for harm but was unrelated to the nature of the medical duty owed. The claim therefore failed at the scope-of-duty stage, before factual causation arose.
3. Breach. In any event, the defendants’ approach was reasonable. By discharge, all signs of raised intracranial pressure other than the head-circumference measurement had resolved, the fontanelle was normal, and follow-up by the health visitor within one or two weeks was a defensible plan. The claimant’s expert’s substantial concessions weakened the criticism, while the defendants’ expert evidence remained reasonable, logical and consistent.
4. The court did not prefer the defendants’ expert merely because he was a recognised expert. Where medical opinions conflict, the court must explain why one is preferred, as emphasised in Smith v Southampton University Hospital NHS Trust. The evidence and reasoning in this case justified preferring the defendants’ expert.
5. The remaining questions in Meadows, including duty nexus and legal responsibility, did not require determination. The claim was dismissed.