Material Contribution in Clinical Negligence – Revisited

Material Contribution in Clinical Negligence – Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust

The test for material contribution in Clinical Negligence cases has been restated, reaffirmed and massively simplified by John: Prove a breach of duty and prove that the breach materially contributed to your injury means 100% of damages (so long as your injury is indivisible).

Introduction

Unaccustomed to trials, 2016 has been a breath of fresh air for Clinical Negligence practitioners with 10 High Court judgments handed down since the New Year. In by far the most significant of these judgments, Mr Justice Picken sitting in the Liverpool District Registry has produced a wonderfully sensible and digestible judgment in the case of Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016] EWHC 407.

John is an extremely important case. It’s the first judgment following Williams v The Bermuda Hospitals Board [2016] UKPC 4 to grapple with the doctrine of material contribution.

John marks an important development in the law and is the most significant, post-Bailey decision.

Facts & Breach Of Duty

Even by the standards of Clinical Negligence cases, John is a tragic case. The Claimant, a General Practitioner, 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 and Prison Doctor.

Early in the morning of the 23rd December, 2007, however, the Claimant’s life was irreversibly changed when he lost his footing when climbing the stairs to his flat and fell backwards. Some two hours later, the Claimant was found by his neighbour (another Doctor) covered in vomit and described as being ‘in a bad way’.

An ambulance was called and the Claimant was taken to Manchester Royal Infirmary (MRI) where he was admitted at about 6.52am in the morning. He was 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 it was 1.12pm, some 6 1/2 hours after he was admitted.

The CT scan showed the Claimant had an acute sub-dural haematoma, causing raised intra-cranial pressure, necessitating his immediate re-admission to ‘resus’ and transfer to a specialist neurosurgery team at another hospital. The Claimant’s condition was radically deteriorating, its seriousness summed up by the impressive MRI nurse taking care of him: ‘It’s a total priority we need to get this man to theatre, it’s a matter of life or death really.’

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 and inexplicably was sent away again at 4.26pm. Not until 5.33pm did the MRI realise its mistake and call for another ambulance. Farcically this was also delayed an hour so that the claimant only reached the waiting neurosurgery team at 7.30pm.

Though the operation itself was a success the Claimant soon developed a post-operative intra-cranial infection (a common product of raised intra-cranial pressure). He survived this but the damage done to the Claimant was both tragic and considerable. At the time of trial it was agreed the Claimant could never work as a doctor again. He now 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. He further alleged delay in summonsing a ‘blue light’ ambulance for transfer to another hospital. 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 Defendant denied breach of duty but the facts of the Defendant’s denial are not of particular relevance.

Medical 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 on a rather bold basis. In effect, it argued 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.

Further, the Defendant 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.

Result & Analysis

The Claimant won and won comprehensively. He established breach, which turned on the facts of the case, and then succeeded on medical causation.

In an impressive judgment, Mr Justice Picken concluded the following in respect of the doctrine of material contribution and its application to the facts of John:

• The doctrine 0f 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.

Conclusion

Mr Justice Picken’s sensible, accurate and simple summary of the principles of material contribution cases dovetails nicely with the more cerebral discussions in Williams v The Bermuda Hospitals Board ,[2016] UKPC 4. In order for a Claimant to succeed he must show that:

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.

In such circumstances, the Claimant will recover damages in full in the case of an indivisible injury and in cases of divisible injury, damages for that part of the injury that was attributable to the Defendant’s negligence.

In essence, there is no need to look to any of the industrial disease cases or obsess about fine distinctions between single or multiple causative agents.

Clarity for both the Claimant and Defendant at last, if it was not needed before.