Clinical Risk >
Volume 14, Number 6 >
Pp. 239-242
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AvMA Medical & Legal Journal |
 | Introduction |
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Each of these three cases is interesting, and the writer should disclose that he was the leading counsel for the Claimant in Bailey both at first instance and in the Court of Appeal; and this article will try to show the importance of each in the area of causation in clinical negligence cases and remind readers that all is not necessarily lost on behalf of the Claimant if the experts cannot say that the injury would not have happened but for the negligence, or cannot say exactly what difference to the outcome the negligence made.
| Telles |
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She underwent three operations: at three days old, at seven days old and then some time later at 10 months old. This was one of the cases that were the subject of inquiry into children's heart surgery at Bristol Royal Infirmary between the years 1984 and 1995. The report was published in July 2001 and many issues were considered and investigated in what was a wide-ranging inquiry, but the scope of the allegations in the claim brought on behalf of Marianna Telles can be stated quite shortly.
The Claimant alleged negligence in the conduct of the first operation (which was a cardiac shunt procedure), further negligence in the care between the first and second operations, and negligence in the conduct of the third operation. In the end the Judge found only negligence in the conduct of the first operation: the effect of this was that the Claimant remained hypoxic because the first operation was ineffective because of a kinked and blocked shunt, and she remained hypoxic until the second operation.
The Claimant had suffered from periventricular leukomalacia (PVL) and the issue on causation then became whether she had suffered it before the first operation (i.e. unassociated with any negligence on the part of the Defendant), or whether the damage had developed after the first operation and before the second operation – in which case it would have been caused by the negligence.
The judge found on the evidence that the damaging hypoxia which caused the PVL had lasted from about 2.5 days before the first operation until the second operation – except for the period before the first operation when she was on a prostaglandin infusion. Roughly speaking, the damaging hypoxia before the second operation was calculated as being about 15% of the whole of the damaging period.
The judge accepted expert evidence that from a scientific point of view there was no way that the amount of damage that was caused in that first period (and which would have been caused in the absence of any negligence) could be calculated or quantified, and in particular that it was unlikely that damage would have been suffered equally over the whole period. It was agreed between the parties that if the judge was unable to make any apportionment between the two periods then the Claimant was entitled to recover in full – and this was the finding that was made.
| Bailey |
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It was not alleged that the surgeon was negligent because he neither removed the stone, nor was the bleed the result of negligence; and the development of pancreatitis was an accepted hazard of the ERCP procedure.
But the surgeon was negligent in failing to ensure that the Claimant received appropriate postoperative resuscitation. In fact she did not begin to receive appropriate resuscitation until about 24 hours later, and as a result of this failure she was more ill than she otherwise would have been after the operation.
She then had a stormy period in which she was extremely unwell and had to undergo further operative procedures at a different hospital. On 14 January she underwent a gastroscopy, and was still found to be bleeding internally. A percutaneous transhepatic cholangiogram (PTC) was undertaken on 15 January, but this resulted in a tear in the liver which caused significant further bleeding. An emergency laparotomy was undertaken in the early hours of 16 January, by which time she was very ill and given only a 50/50 prospect of survival. During this definitive surgery the gallstones were finally removed and the blockage cured, and the bleeding was stopped.
Thereafter the Claimant was still very ill, but appeared to be slowly improving. Haemofiltration was started on 17 January and on 19 January she underwent a further laparotomy to remove the packs around her liver. She remained in the intensive treatment unit (ITU) but was taken off the ventilator on 24 January. She was then discharged from ITU, but on 26 January she suffered a cardiac arrest resulting in severe and permanent brain damage.
The judge held that if the Claimant had been properly treated she would have been appropriately resuscitated after the ERCP, and she would then have been fit for a further procedure which should have been carried out on the following day definitively to remove the stone, and to check to see if she was still bleeding. This would have avoided the need for the PTC and would have meant that the damage caused to the liver in that procedure would not have happened. But it would not have prevented the development of the acute pancreatitis that would have developed anyway.
Foskett J held that it had not been established that the Claimant would not have had her arrest if there had not been negligence on the part of the Defendant, but he held that the claim succeeded because the negligence had materially contributed to the Claimant's arrest. The evidence was that the Claimant had arrested when she aspirated after vomiting, and that she aspirated because of debilitating weakness – which was caused partly by the pancreatitis, and partly by the consequences of the Defendant's negligence.
| Boustead |
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TopIntroductionTellesBaileyBousteadDiscussionReferences |
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The judge rejected allegations that the Defendant should have transferred the mother to a tertiary centre, and that there had been negligence in failing to carry out a Caesarean section when there had been some evidence of fetal distress after she had been in hospital for two days. But the judge did hold that there was negligence when the Defendant responded to the mother's developing fulminating pre-eclampsia just under a week later by inducing labour and delivering vaginally, when he held that there should have been a Caesarean section which would have ensured delivery of the Claimant at least four hours earlier than was in fact the case.
The Claimant suffered intraventricular haemorrhage in the first day of life, and this led to hydrocephalous, cerebral infarction and periventricular leucomalacia.
The judge held that the hypoxia at birth, which would have been avoided if there had been a delivery by Caesarean section, as there should have been, had made a material contribution to the development of the IVH and that accordingly the causation was established and the Defendants were responsible for the Claimant's injuries.
| Discussion |
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Cases like this will always be fact-specific, and the important aspects here seem to have been that the damage developed over a short period of time (unlike the damage in Vibration White Finger (VWF) cases in which it develops over years), the judge appears to have felt unable even to draw an inference that some significant damage must have been done before the negligence occurred, and a high percentage (some 85%) of the exposure to the damaging hypoxia was caused by the negligence.
In other cases, with ostensible similarities, the same approach will not be used. For example, in the case of Rugby Joinery Limited v Pamela Whitfield,5 the Claimant had been exposed to vibrating tools and the risk of VWF for a period with respect to which the Defendant was not negligent; there was then a period in respect of which the Defendant was negligent, and the issue arose as to the extent of the Defendant's liability. The trial judge refused to apply a ‘straight line’ approach and made an assessment that appeared (at least to the Defendants) to be generous to the Claimant. Neuberger LJ said:
In this case, as in almost any case where only part of the claimant's medical condition can be attributed to the defendant's negligence, questions of causation and apportionment are difficult. The topic, albeit not in connection with VWF, was discussed by Mustill J in Thompson v Smiths Ship Repairers (North Shields) Ltd [1984] QB 405 at 437–448, where he said this at 438D:
‘The defendants as well as the plaintiffs are entitled to a just result. If we know... that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position... what justice does demand, to my mind, is that the courts should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the plaintiffs of the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that it has to be regarded as a jury question, and I propose to approach it as such.’
In Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421, Stuart-Smith LJ approved the approach of Mustill J, and said this in paragraph 20:
‘In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day and on consideration of all the evidence the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense...’
The situations in which the evidence will reflect what happened in Telles will probably be exceedingly rare. It is probably the case that if the evidence demonstrates that some significant injury must have been caused to the Claimant even if the Defendant had not been negligent, then the Court will make the ‘best estimate’ that it can and approach it as a ‘jury question’ in order to do justice to the Defendant as well as the Claimant.
But the case is important. The evidence showed that the negligence had, at least, made a material contribution to the injuries suffered by the Claimant. It was impossible, on the basis of the existing science, to determine or quantify what proportion of the injuries would have been suffered in the absence of the negligence, and the suggestion of the writer is that the special considerations outlined above made it a case in which it was appropriate and just to determine the causation in favour of the Claimant rather than adopt the ‘jury’ approach described above. The key is that the negligence made a material contribution to the injury, and that part of the injury that would have been caused in the absence of the negligence was unquantifiable.
In Bailey Foskett J referred expressly to the fact that the issue of causation in clinical negligence cases has been considered at the highest level on a number of occasions in recent years, including the cases of Fairchild v Glenhaven Funeral Services Ltd,6 and Gregg v Scott.7 The judge referred to the inescapable fact that it can be a difficult issue in such cases,8 and that if the material contribution approach to causation is permitted it does, of course, mean that the ‘but for’ test is not being applied.9
Gregg v Scott produced the division in the House of Lords on the question of damages for the delayed cancer diagnosis where the Claimant's already poor chance of long-term survival was further reduced. It is a difficult case that was not material to the issues in Bailey. And Foskett J was unpersuaded by the defence argument that it should only be in cases like Fairchild (which it was said Bailey was not) where matters of public policy applied that the Court should depart from the traditional ‘but for’ test. He rejected the argument that it was only in exceptional cases (like Fairchild) where the Court could equate increasing risk with a material contribution to causation that the ‘but for’ test could be abandoned.
We considered that the material contribution approach that was adopted by Foskett J in Bailey and Mackay J in Boustead was entirely in accordance with the principle clearly set out by Lord Bridge in the case of Hotson v East Berkshire Area Health Authority.10 In that case it will be remembered that the Claimant could not establish, on the balance of probabilities, that the negligence had any bearing on the development of the avascular necrosis that had developed, which was a risk after any fracture of the sort that he had suffered. But Lord Bridge said this:
As I have said, there was in this case an inescapable issue of causation first to be resolved. But if the plaintiff had proved on a balance of probabilities that the authority's negligent failure to diagnose and treat his injury promptly had materially contributed to the development of avascular necrosis, I know of no principle of English law which would have entitled the authority to a discount from the full measure of damage to reflect the chance that, even given prompt treatment, avascular necrosis might well still have developed. The decisions of this House in Bonnington Castings Ltd. V Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1 give no support to such a view.
In order to take advantage of this doctrine the evidence has to demonstrate that the negligence was part of a cumulative effect that was the cause of the injury. In Boustead's case it does not seem to have been disputed that the various factors affecting the Claimant (prematurity, hypoxia at birth, respiratory illness due to lung immaturity) were cumulative and led to the IVH. It was actually asserted that this was the case in the defence, and then agreed by the experts in the joint meeting.
The opposite situation, in which the principle of ‘material contribution’ will not work for a Claimant, is that in the case of Wilsher v Essex AHA.11 In that case the Claimant received too much oxygen in the new-born stage and suffered retrolental fibroplasia (blindness). This case is frequently referred to as a case where there were a number of possible causes of the blindness, of which the negligence was only one, and where the Claimant failed to prove that the negligence was causative. It was not a case where the different ‘risk factors’ were cumulative. The case (in which the outcome is now mystifying to many) may in part be explained on the basis of the attempt by the trial judge to shift the burden of proof onto the Defendant of demonstrating that their breach of duty did not cause the injury. In fact the case is not inconsistent with the principle of ‘material contribution’. In the House of Lords the Defence accepted that the question was whether the Defendant's negligence had caused, or materially contributed, to the Claimant's blindness. The House of Lords found that it had not been established that it had.
In Bailey's case the MOD vigorously disputed any causal connection between the negligence and the eventual, disastrous, cardiac arrest. The contention was that the effect of the negligence had, in effect, been spent and that the cause of the aspiration was the severe pancreatitis. This was rejected by the judge who found that the negligence had made a material contribution to the cumulative effect. The Defendant's appeal was in part on fact, but there was also an appeal on a point of law relating to the principle of material contribution.
It was argued on behalf of the Defendant that there was no reason why the Claimant should not be required to overcome the ‘but for’ hurdle. It was said that, correctly understood, all that ‘material contribution’ meant in circumstances such as this was that there could be other, non-negligent, contributory causes; but that the Claimant still had to prove that the negligence made the difference, and that without the negligence, the injury would not have occurred.
The Court of Appeal rejected this argument. After considering the cases Waller LJ concluded that it was wrong to draw a distinction between medical negligence cases and other cases. He said that the position was as follows:
If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed ... If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.
Causation in clinical negligence cases can sometimes be formidably difficult. Where there are a number of factors in play the precise effect of one of them can be elusive. Bailey is a reminder that all is not necessarily lost for the Claimant if the expert says that he simply cannot say that without the Defendant's negligence the Claimant's injury would not have occurred, as long as it can be established that the negligence made a material contribution – more than de minimis – to the Claimant's injury.
| Footnotes |
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| References |
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