Two bites of the apple- limitation in professional negligence cases
Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust  EWHC 407 (QB)
Dr Sido John was a GP who, when he was 16 years old, developed a mild right-sided hemiparesis, meaning that he could only effectively use his left hand and that his walking was slightly impaired. As an adult, he had a serious fall when returning home from a night out, causing him to hit his head. He was found slumped at the bottom of his stairs, unintelligible and unable to stand. He was rushed to A&E but despite a low GCS (a scale measuring eye opening, verbal response, and motor response) a CT scan was not performed until approximately 7 hours later. The subsequent scan revealed that he had sustained a sub-dural haematoma (a blood clot in his brain) and an urgent referral was made to a specialist surgeon. Because Dr John suffered a seizure shortly before the ambulance arrived, his transport to the specialist neurological unit had to be postponed. However, a second ambulance was not called until over an hour later and did not itself appear for yet another hour. When Dr John finally arrived at the hospital, he was transferred to theatre and underwent a left fronto-parietal craniotomy. Following numerous and intensive investigations, surgeries and treatments, Dr John was discharged with a diagnosis of permanent cognitive and neuropsychological impairment (brain damage).
Dr John brought a claim against Central Manchester and Manchester Children’s University Hospital NHS Foundation Trust (‘the Trust’) in respect of:
a) their delay in carrying out the CT scan (the first delay); and
b) their delay in transferring him to the specialist neurological unit (the second delay).
He claimed that these delays caused or significantly contributed to the cognitive and neuropsychological deficits which he subsequently developed and which made it improbable that he would ever be able to work as a doctor again.
The judge presiding over the case held that according to the standard of practice “accepted as proper by a reasonable body of medical men skilled in that particular art” (Bolam v Friern Hospital Management Committee  1 WLR 582), a CT scan should have been arranged within three hours of Dr John being assessed with a low GSC. He also concluded that the hour long delay in arranging for Dr John’s transport to the hospital was also a breach of the duty owed, although the Trust could not be blamed for the subsequent delay by the ambulance service.
It was relatively clear-cut that the Trust had breached its duty of care towards Dr John. However, notwithstanding his existing condition, Dr John had incurred a very serious head injury before the Trust was ever involved. The question for the court was: to what extent, if any, did the Trust’s delay cause the brain damage he ultimately sustained?
The evidence: “treat the man not the scan”
Dr John’s condition was complicated. It was argued that on arrival at A&E he had been presenting with “intra-cranial pressure” (ICP) which, left untreated for almost seven hours, contributed to his neurological damage. The Trust rejected this view, holding that ICP was not evident in the CT scans and that Dr John was not experiencing ICP when he arrived at A&E. Dr John’s expert declared “treat the man not the scan” and insisted that his dysphasia and general presentation were enough to indicate that an urgent scan and subsequent treatment was required. However, what proved especially compelling for the court was the evidence from Dr John’s surgeon who observed the presence of ICP during the operation that was eventually performed.
Causation: material contribution v but for
It was proposed by Dr John that the Trust’s delay in treatment enabled a dangerous build-up of ICP, exacerbating the injuries he had already sustained. He relied upon the principle of material contribution. Under this concept, where medical science cannot demonstrate that the but for test is met (ie. but for the Trust’s negligence, the damage would not have occurred) but can show that the negligence was a significant contributor to the damage ultimately suffered, the claim will succeed (Bailey v the Ministry of Defence  EWCA Civ 883,  1 WLR 1-52).
On the other hand, the Trust contended that material contribution did not apply in the circumstances of this case because the initial head injury, the post-operative sub-dural infection and the delay were all disparate possible factors. In any event, even if material contribution was the correct test, Bailey (2008) is distinct because the factors in that case were cumulative, concurrent or in close succession making it impossible to apportion liability. The delay was separate from the other factors causing Dr John’s injury, namely his fall, and therefore any damages claimed ought to be apportioned accordingly (Holtby v Brigham & Cowan Ltd  ICR 1086).
In the end, the judge agreed with Dr John, finding that:
Dr John was awarded damages for (1) pain, suffering and loss of amenity; (2) care and assistance; (3) loss of earnings; and (4) other matters (including travel expenses, future treatment and future travel). In total the Claimant was awarded damages of £454,858.65 (inclusive of interest).
A disability that has occurred as a result of numerous incidents can be so complex that to untangle the different contributing factors is like untying a Gordian knot. In Reaney v University Hospital of North Staffordshire NHS Trust  Med LR, the court had to unravel such a knot to decide which elements of Mrs Reaney’s care were required because of the defendant’s breach, and which elements were inevitable as a result of her pre-existing paraplegia. It came to the conclusion that the “egg-shell skull” principle applied. Therefore it did not matter that Mrs Reaney already had care requirements, the trust in this case had made her care needs worse and “must make full compensation for that worsened condition”.
This decision was overturned by the Court of Appeal who clarified the position in relation to quantum. The correct test is whether the injuries following the negligent act are “quantitatively” or “qualitatively” different. Injuries which are qualitatively different or “more of the same” cannot be compensated by the defendant. In cases involving pre-existing injuries a defendant is only liable for injuries that are qualitatively different and flow from the negligent act. For example, Mrs Reany could only recover damages regarding the additional care she required as a result of the negligent act. On this basis the trial judge’s use of “material contribution” within the quantum context was overturned.
Interestingly, where the trial judge in Reaney (2014) considered how the material contribution principle applied to quantum, Dr John’s case looked at how the concept affected liability. This is significant because, generally speaking, the issue of liability in clinical negligence claims is the most contentious. Dr John was able to demonstrate that the existence of raised ICP meant that his injury after his fall and his injury following the Trust’s extended delays were significantly different, even though it was impossible to quantify the exact impact of the ICP. His case re-affirms Bailey (2008) and reminds claimants that they now have an alternative and potentially easier test than the but-for test to prove causation. However, it remains to be seen how “material” or “significant” will be interpreted by future courts considering liability, especially where the before and after scenarios cannot be clearly untwined.
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