CDE v Surrey and Sussex Healthcare NHS Trust

14 November 2023

[2023] EWCA Civ 1330

Court of Appeal

A baby suffered brain damage due to hospital delays. The court agreed there was a mistake in how the judge decided whether those delays caused the injury, so they sent the case back for a more detailed look at whether even a small delay could have made a difference.

Key Facts

•Claimant suffered severe brain injury around the time of her delivery on 4 June 2018.
•Injury resulted from a short period of near-total hypoxic ischaemic injury (PHI).
•Claimant alleges negligent care caused delays in delivery, contributing to the injury.
•Key delay involved failure to transfer mother to labour ward promptly after a decision to do so at 16:50.
•CTG monitoring was not started until 17:50, delaying detection of foetal bradycardia.
•Consultant obstetrician, Miss Nicks, heard bradycardia at 17:51 and entered the room at 17:52.
•Claimant argued that if CTG had been in place earlier, Miss Nicks would have heard the bradycardia at 17:50 and acted immediately, resulting in a one-minute earlier delivery.
•Judge found that even with earlier detection, the same outcome would likely have occurred due to the underlying vascular malformation.

Legal Principles

Bolam test: A medical professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical men.

Bolam v Frien Hospital [1957] 1 WLR 582

Bolitho test: The court must be satisfied that the opinion relied upon has a logical basis, considering comparative risks and benefits.

Bolitho v City and Hackney HA [1998] AC 232

Causation in medical negligence: The claimant must prove that the breach of duty caused the injury.

Bolitho v City and Hackney HA [1998] AC 232

Outcomes

Appeal allowed in part.

The judge erred in applying the Bolam test instead of the Bolitho test regarding the consultant obstetrician's actions. A one-minute earlier delivery would have resulted if the CTG had been operational earlier. The case was remitted to the same judge for further expert evidence on whether a one-minute reduction in PHI would have materially affected the claimant's injuries.

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