Material contribution in clinical negligence causation
An interesting case on causation (John v Central Manchester & Manchester Children’s University Hospitals NHS Foundation Trust) was resolved last month, the first case of material contribution following the Privy Council’s decision in Williams v The Bermuda Hospitals Board .
Dr Sido John had been very unfortunate at age 16, having developed an intra-cranial infection that had required surgery in the form of a left-sided craniotomy. He was left with a mild right-sided hemiparesis which, although it improved over time, required him to learn to use his left hand (having been right-handed) and caused him to have a right foot drop with consequential walking difficulties. Nevertheless, he had become a very successful GP working as a locum over 5 different surgeries and as a prison doctor.
Unfortunately, early in the morning on Sunday 23 December 2007, Dr John lost his footing as he was climbing some stairs in the common hallway to his flat and fell backwards. He was found by a neighbour, another doctor, some 2 hours later, having vomited and unable to say anything intelligible. The neighbour called an ambulance and Dr John was taken to Manchester Royal Infirmary and admitted at about 06:52. He was triaged and then seen by a doctor who proposed a CT brain scan. However, the CT scan did not go ahead until 13:12.
Dr John alleged that the delay in performing the scan and arranging for a blue-light ambulance was the result of negligence on the part of the Defendant’s staff at the Hospital. He argued that, had the CT scan been carried out sooner, he would have been transferred to The Hope Hospital in Salford much earlier than was in fact the case, would have had surgery earlier than he did (at 19:30) and would have had his acute subdural haematoma evacuated. The extended period of raised intracranial pressure (RICP), he alleged had materially contributed to his cognitive and neuropsychological deficits which have meant that he will likely never work as a doctor again.
The Trust denied breach of duty but also, importantly, denied causation, arguing that it was necessary to apportion damages between the damaging RICP (caused by negligence) on the one hand and the initial head injury and post-operative infection (not caused by any negligence) on the other. Dr John relied on the case of Bailey v The Ministry of Defence, in which the claimant was entitled to recover in full for his injuries where, as Waller LJ put it, at [46], “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 judge in the present case, Picken J., concluded on breach of duty that a CT brain scan should have been performed on Dr John earlier, specifically by not later than about 10:00, the delay being as a result of negligence on the part of the Defendant. He also concluded that there was a negligent delay in arranging a transfer to Hope Hospital. Additionally, the judge found that Dr John had been suffering from damaging RICP from at least 12:15 or so, which was for a period of in excess of 7 hours by the time that he came to be operated upon at about 19:30. In relation to factual causation, the judge determined that Dr John would have avoided a period of RICP of between about 5¾ and 6 hours, assuming 15 minutes for initial decompression (as the experts had agreed) during the surgery at 19:30; even on the ambulance delay case, Dr John probably would have avoided an hour of RICP.
The key issue in the case was, in the circumstances where there was no question that the initial brain injury and the post-operative infection caused some brain damage which would have resulted in some degree of cognitive and neuropsychological impairment, whether the damaging RICP due to the Defendant’s negligence made a “material contribution” to such impairment. The judge held that it did, applying Bailey and the recent case of Williams, which had only been decided the week before. The finding was on the basis that the experts were agreed that, if the judge decided that there was a period of damaging RICP prior to the surgery at 19:30, this would have made an unquantifiable yet more than de minimis contribution to Dr John’s impairments and it was not possible to separate out the relative contributions of the three factors of: (a) the initial trauma; (b) an extended period of RICP; and (c) the post-operative infection. Accordingly, the test of material contribution had been satisfied and Dr John could recover for all of his injuries (which amounted to £454,858.65, inclusive of interest).
The case is important because it was the first case of material contribution decided following the Privy Council’s judgment in Williams and is a helpful exposition of how to analyse causation in such cases. It also demonstrates that even if only relatively short period of the overall time can still amount to full recovery if the damage is indivisible. At a time in which it is ever harder to bring a successful case for clinical negligence claimants, the stance on material contribution is a welcome one.