Scope of Duty since K v MNX: where are we now? A two part series: Part 2

I will preface Part 2 of this blog by adding a note that due to the sheer number of relevant cases (I have referenced 5 in total) this blog has been split into two parts. I would urge you to read both parts for the complete overview.

In part 1 of this blog, I have referenced the two significant cases of Kennedy v Frankel and DD v NHS Fife Health Board. Below you will find my final round up of key decisions since  K v MNX, which I first wrote about in 2021.

Milan Radia v Professor David Ian Marks [2022] EWHC 145 (QB)

Background facts

The Claimant (C) worked for an investment bank and was diagnosed with Acute Myeloid Leukaemia (AML). C commenced proceedings in the Employment Tribunal in relation to disability discrimination. As part of those Employment Tribunal proceedings, the Tribunal made various findings about C’s credibility. C subsequently brought a claim for damages against the Defendant (D), who was the expert witness who had prepared a report for the Employment Tribunal on the impact of C’s AML on his ability to work. D’s expert report misreported C’s account of his post chemotherapy weight loss. C submitted that it was the discrepancy within D’s report that was the root cause of the Tribunal’s credibility findings and it was a result of this that his evidence was excluded and there were adverse findings and costs order made against him.

The decision

As part of her decision, Mrs Justice Lambert considered the scope of D’s duty to C. I think it would be fair to report that Mrs Justice Lambert generally felt that this was a decision that was novel and one which fell outside of the scope of claims K v MNX was contemplating. The Court concluded that it was not controversial that D owed a duty to C, but the key question was whether or not the loss C sustained fell within the scope of that duty. Mrs Justice Lambert concluded that the Tribunal’s findings and the “loss” C sustained was the finding that C was a dishonest witness; however, D’s duty did not extend to protecting C from the risk of a credibility finding. Within her Judgment, Mrs Justice Lambert carefully examines the role of an expert witness and as part of her judgment she considered the solicitors letter of instruction. As well as no doubt being a relief to experts generally, it is a timely reminder to practitioners of the importance of our letter of instruction and checking expert reports carefully for any errors.

D v Grampian Health Board [2022] CSOH 63

This final case is a Scottish birth injury decision and one which will be more familiar to those of us who work in a clinical negligence field.

Background facts

LD’s mother brought a claim on behalf of LD alleging negligent failures by the midwifery staff which resulted in a period of severe acute asphyxia, as a result of cord compression shortly before birth. D suffered from consequential quadriplegic dyskinetic cerebral palsy.

Legal arguments and the decision

C’s case on breach of duty was that but for the breaches D would have been born, uninjured, before 4:40 on 24 August 2008. The allegations of breach of duty against the midwives related to an unreasonable delay to induction, and with respect to the obstetricians regarding an unreasonable delay to delivery.

As part of their Defence, D referred to K v MNX and asserted that the cause of LD’s injuries was the unforeseeable and dramatic pace of labour after 04:10 such that SD’s cervix was fully dilated in 30 minutes which led to LD’s head rapidly descending into the pelvis and the umbilical cord occlusion occurring. It was not in dispute that prior to this point, LD was uninjured. D argued that the midwife who saw the patient on the ward on 22 and 23 August 2008 and whose purpose was to manage the induction of labour, could not be responsible for injuries the baby sustained on the labour ward the following day, as the injuries were caused by something which could not be predicted. D asserted that based upon the 6 principles in K v MNX there was not sufficient nexus between the harm and the subject matter of the midwives’ care (induction), as the midwives had no ongoing involvement once SD was transferred to the labour ward and their obligations to SD ceased on transfer. The scope of the midwife’s duty did not extend to delivery of the baby, and they assumed no responsibility with respect to that.

LD argued in response that all parties had accepted that the risk of cord compression is linked to prolonged pregnancy and the midwifery breaches of duty took place on the background of that known risk. By allowing the induction of labour to be delayed, the midwives exposed LD and SD to the specific harm that prompt induction would have avoided. It was also argued that it was artificial to distinguish between the induction of labour and the labour itself.

Lady Wise rejected C’s case on breach of duty in relation to the midwifery care but went on to consider the principles in K v MNX in case her findings on breach of duty were wrong. She concluded on the basis of unchallenged evidence as to when the harm to SD occurred, that the harm suffered by SD was too remote and there was not sufficient nexus between the breaches of duty alleged against the midwives and SD’s adverse outcome. She accepted the general propositions that induction of labour and the subsequent delivery of a baby are linked, to a point, and there was a general duty on the part of the midwives to take into account risk factors and not to prolong induction; however, as the only midwifery breaches related to a delay in transfer to the labour ward, she considered there was no evidence as to how and why an earlier transfer would have altered the outcome to SD.

In her Judgment, Lady Wise contrasted the scope of the midwives’ duties with that of the obstetricians and noted that unlike the obstetricians there was a direct relationship between the breaches of duty and the ultimately outcome i.e. had a decision been taken by the obstetrician to deliver the baby at 04:10 SD would have been unharmed.

Comments

On its face, this Judgment appears to be rather bizarre as it appears to draw an artificial line between the induction of labour process and that of labour and delivery. It also fails to acknowledge how a breach of duty early within the sequence of events can have a knock-on effect later down the chain; however, on closer inspection, and without seeing the totality of the served evidence, it appears the issue here is that SD was unable to establish on the basis of their expert evidence and there being a lack of evidence as to what hypothetically would have occurred and how labour would have hypothetically progressed “but for” the midwives breaches of duty and had LD been transferred to the labour ward sooner. This case is a timely reminder to practitioners of the importance of factual causation and ensuring that experts cover within their reports what would and should have happened absent any breaches.

Wider Implications of Scope of Duty Decisions in Clinical Negligence

Up until a few days ago, I would have concluded this blog by saying that perhaps my concerns about scope of duty 2 years ago were unfounded, but then came the decision in Paul, Polmear and Purchase and the conclusion that:

“We are not able to accept the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.” [§138].

It appears, or at least it appears to this practitioner, that the scope of a doctor’s duty has found considerable traction over the last few years and Claimant practitioners will need to consider carefully precisely how far that doctor’s duty extends. Lines may artificially end up being drawn by Defendants in rather odd places and experts are going to need to grapple with precisely how far is too far when it comes to the scope of a clinician’s duty.