The test for material contribution in Clinical Negligence cases has been hugely simplified

4th March 2016

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Prove a breach of duty and prove that the breach materially contributed to your injury and you can recover 100% of damages (so long as your injury is indivisible) following the decision this week in – Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016] EWHC 407.

This case marks an important development in the law.

Background facts

The Claimant was a General Practitioner who has developed an intra-cranial infection at the age of 16 that required a left-sided craniotomy. He was left with mid, right-sided hemiparesis which required him to use his left hand (he had been right-handed) and caused him certain mobility difficulties. Nevertheless, he became a successful General Practitioner.

On 23rd December, 2007, he lost his footing when climbing the stairs to his flat and fell backwards. Two hours later, he was found by his neighbour (another Doctor) covered in vomit. An ambulance was called and the Claimant was taken to Manchester Royal Infirmary (MRI) where he was admitted, triaged and a management plan was formulated which included CT scanning of the Claimant’s brain. The Claimant’s CT scan was then cancelled despite the Claimant developing warning signs that he was suffering a head injury including confusion and disorientation. Only after he was transferred from A&E to another ward was the seriousness of the Claimant’s situation recognised and CT scan was reordered. By this time nearly 7 hours had elapsed since he was admitted.

The CT scan showed the Claimant had an acute sub-dural haematoma, causing raised intra-cranial pressured requiring urgent surgery.

At 3.17pm an ambulance was requested to carry out a ‘blue light’ transfer, but it did not arrive until 4.10pm. The ambulance waited at the MRI for 15 minutes only to be sent away again at 4.26pm. At 5.33pm MRI realised its mistake and called for another ambulance. Astoundingly this was also delayed an hour so that the claimant only reached the waiting neurosurgery team at 7.30pm.

The operation was a success but the Claimant soon developed a post-operative intra-cranial infection (a common product of raised intra-cranial pressure). He survived this but at trial it was agreed the Claimant could never work as a doctor again.

He was suffering significant cognitive and neuropsychological deficits, and Adjustment Disorder.

The Claimant brought a claim against the Defendant claiming damages for Clinical Negligence on the basis of a negligent delay. The Claimant’s Counsel argued that had an earlier CT scan been carried out, the Claimant would have been transferred to the specialist neurosurgery team much earlier and surgery therefore performed much sooner.

The key issue on Causation

In respect of medical causation, it was alleged that the Claimant suffered an extended period of raised intra-cranial pressure, which itself materially contributed to the cognitive and neuropsychological deficits, and Adjustment Disorder from which the Claimant now suffers. As a result of the same, he has been unable to resume work as a Doctor.

The Defendant denied causation arguing that it was not open to the Claimant to rely upon the doctrine of material contribution. Rather, it alleged that the post-operative infection operated both consecutively and concurrently to the Claimant’s cognitive and neuropsychological deficits. As a consequence of the same, the Claimant could not rely upon Bailey v The Ministry of Defence [2008] EWCA Civ 883 as there were multiple causes. This was, it was said, a Wilsher v Essex Area HA [1988] 1 AC 1074 type case of multiple, possible causes and the Claimant could not prove causation.

The Defendant also argued that even if the Claimant could succeed on material contribution, he could only do so to the extent that the Defendant’s negligence had materially contributed to the injury. Even if this could not be precisely quantified, it was said that the court should undertake some sort of apportionment exercise.

The Judge was found in favour of the claimant. He won. He established breach, which turned on the facts of the case, and then succeeded on medical causation.

Mr Justice Picken concluded the following in respect of the doctrine of material contribution and its application to the facts of John:

  • The doctrine of material contribution can be relied upon in Clinical Negligence cases where there are multiple, causative agents which are both negligent and non-negligent. There is no support in the case law to suggest otherwise (para 95 of the judgment).

  • Wilsher had been wrongly understood by the Defendant. Wilsher is not a barrier to Claimants succeeding in cases of multiple causes. Rather, Wilsher requires that Claimants prove, on a balance of probabilities, that an individual cause materially contributed to the injury. Possibility is not enough. Proof to the civil standard is required.

  • Clinical Negligence cases need to be considered separately to industrial disease cases (para 97 of the judgment). Clinical Negligence is concerned about material contribution to injury or damage and not about contribution to risk.

  • Apportionment in Clinical Negligence cases where material contribution is relied upon is wholly inappropriate (para 99 of the judgment) because the whole point of such cases is that medical science cannot quantify the various causative potencies of the causes.

  • It doesn’t really matter whether Bailey is a material contribution case or a classic, but for causation case. In similar cases, Claimants will succeed in recovering damages.

Going forward, a Claimant will need to prove-

  1. The Defendant has been negligent in its care towards him.

  2. The negligence has materially contributed to his injury.

  3. Proving the degree of the contribution on a traditional but for basis is a medical impossibility, but the contribution must be more than minimal.

This is a helpful decision which brings clarity to the law on material contribution.

For more information regarding this article, please do not hesitate to contact a member of our Medical Negligence Team.




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