Amanda McGuinn v Lewisham and Greenwich NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker |
| Judgment Date | 26 January 2017 |
| Neutral Citation | [2017] EWHC 88 (QB) |
| Docket Number | Case No: HQ13X02027 |
| Court | Queen's Bench Division |
| Date | 26 January 2017 |
[2017] EWHC 88 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jeremy Baker
Case No: HQ13X02027
Mr Angus McCullough QC (instructed by Leigh Day) for the Claimant
Mr John Whitting QC (instructed by Clyde & Co) for the Defendant
Hearing dates:
– 7 October and 8 November 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Jeremy BakerAnnexed to this judgment is a list of medical acronyms.
Amanda McGuinn ("the claimant") is 38 years of age, (dob 14 th August 1978), and has two children, namely Cillian and Matilda.
The claimant's first pregnancy was largely uneventful; albeit, during the 3 rd trimester, she suffered from pregnancy induced hypertension. However, at 39 weeks, the claimant gave birth to a healthy son, Cillian, on 20 th February 2007.
Later that year the claimant again became pregnant, and, during the course of 2008, underwent a series of ultrasound scans at Lewisham Hospital, where she was under the care of medical staff for whom the Lewisham & Greenwich NHS Trust ("the defendant") is responsible.
Unfortunately, after Matilda was born, on 16 th August 2008, she was found to suffer from severe neurodevelopmental impairment, and is profoundly physically and cognitively disabled. Although the precise cause of these disabilities is unclear, at birth Matilda's head circumference was found to be well below the 0.4 th centile, and, subsequently, her head was diagnosed to be microcephalic; a condition which is known to give rise to a substantial risk of physical and mental abnormalities.
It is the claimant's case that, bearing in mind the features revealed on the scans, including, the small fetal head circumference, the decrease in growth rate, the slightly enlarged cerebral ventricles, and the presence of a single umbilical artery, those responsible for her medical care during the course of her second pregnancy should have been aware that the fetus was at risk of suffering from microcephaly. In which case she should have been referred for further investigations and assessment at tertiary level care, and thereafter been informed of the substantial risk of physical and mental abnormalities associated with this condition. It is the claimant's case that if she had been aware of this risk, then she would have elected to terminate her pregnancy.
The claimant alleges that the failure, on the part of those responsible for her medical care, to appreciate that the fetus was at risk suffering from microcephaly and refer the claimant for tertiary level investigation and assessment, amounts to clinical negligence, and she seeks damages for the wrongful birth of her child. The defendant denies negligence, asserting that, antenatally, there was no or insufficient evidence that the fetus was at risk of suffering from microcephaly.
Although various issues including causation are in dispute between the parties, at this stage the only determination which is required, is whether the claimant is able to establish, on the balance of probabilities, that those responsible for her medical care were in breach of their duty of care in failing to appreciate that the fetus was at risk of suffering from microcephaly, and refer the claimant for tertiary level investigation and assessment.
Legal principles
This being a case in which clinical negligence is alleged, the starting point for the correct approach to the assessment of liability, is the case of Bolam v Friern Hospital Management Committee [1957] 1WLR 583, in which McNair J. stated that,
"I would myself prefer to put it this way, he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in this particular art……Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view."
As Lord Scarman in Maynard v West Midlands RHA [1984] 1WLR 634 expressed it,
"Differences of opinion and practice exist and will always exist in the medical and other professions. There is seldom only one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
However, as was made clear by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232, as it is ultimately the court which has to determine the issue of negligence, it is necessary for the court to be satisfied that the responsible body of medical opinion relied upon by a clinician, has a sufficiently logical basis. As Lord Browne-Wilkinson stated,
"……..the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts directed their minds to the question of comparative risks and benefit and have reached a defensible conclusion on the matter……
In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily pre-supposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible."
In this context, a recent and helpful analysis of the matters which are likely to be relevant to the Court's consideration of medical evidence has been provided by Green J. in the case of C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61, in which he stated that,
"25. In the present case I have received evidence from 4 experts, 2 on each side. It seems to me that in the light of the case law the following principles and considerations apply to the assessment of such expert evidence in a case such as the present:
i) Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion.
ii) This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent.
iii) The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself.
iv) In making an assessment of whether to accept an expert's opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is "responsible", "competent" and/or "respectable"; and whether the opinion is reasonable and logical.
v) Good faith: A sine qua non for treating an expert's opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a defendant's conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice.
vi) Responsible/competent/respectable: In Bolitho Lord Brown Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was "logical". It seems to me that whilst they may be relevant to whether an opinion is "logical" they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as "logical". Nonetheless these are material considerations. In the course of my discussions with Counsel, both of whom are hugely experienced in matters of clinical negligence, I queried the sorts of matters that might fall within these headings. The following are illustrations which arose from that discussion. "Competence" is a matter which flows from qualifications and experience. In the context of allegations of clinical negligence in an NHS setting particular weight may be accorded to an expert with a lengthy experience in the NHS. Such a person expressing an opinion about normal clinical conditions will be doing so with first hand knowledge of the environment that medical professionals work under within the NHS and with a broad range of experience of the issue in dispute. This does not mean to say that an expert with a lesser level of NHS experience necessarily lacks the same degree of competence; but I do accept that lengthy experience within the NHS is a matter of significance. By the same token an expert who retired 10 years ago and whose retirement is spent expressing expert opinions may turn out to be far removed from the fray and much more likely to form an opinion divorced from current practical reality. "Respectability" is also a matter to be taken into account. Its absence might be a rare occurrence, but many judges and litigators have come across so called experts who can...
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