Material Contribution – the cases

Causation in Surgical cases – a special place for material contributionPresented byDr Simon Fox QC @clinnegsilk

Material Contribution – the cases • Bailey v MOD 2008 EWCA Civ 883 • Canning-Kishver v Sandwell Trust 2008 EWHC 2384 QB • Williams v Bermuda 2016 UKPC 4 • Sido John v Central Manchester Trust 2016 EWHC 407 QB

Bailey v MOD 2007 EWHC 2913 QB • 35 year old woman suffering from jaundice, thought to be obstructive due to gall stones • 11th Jan – ERCP – bleeding 1-1.5L, abandoned • Following 24 hours – negligent lack of resuscitation/fluid replacement (none) • Develops pancreatitis (5-10% - 10-15% mortality)

Bailey v MoD • 12th - PTC (percutaneous transhepatic cholangiogram) • complicated by tear to liver • 13th– transfused 3 units • 14th - gastroscopy

Bailey v MoD • 16th laparotomy –sphincterotomyoversewn + cholecystectomy + liver packed – “touch and go” • 17th– dialysis starts • 19th– laparotomy for pack removal • All on background of acute pancreatitis

Bailey v MoD • 26th– transferred from ITU to renal ward • Falls asleep, vomits, aspirates - resulting in cardiac arrest and hypoxic brain damage

Bailey v MoD • Foskett J found that, if C had been properly resuscitated (IVI and catheter) after ERCP on 11th, C would have undergone further ERCP on 12th avoiding PTC + liver tear + both laparotomies

Bailey v MoD • Would still have developed acute pancreatitis sufficient for admission to ITU

Bailey v MoD • “What I am prepared to accept, because it seems to me to be a common sense assumption, is that the Claimant’s generally weakened and debilitated condition on 26thcaused her not to be able to respond naturally and effectively to the emergence of vomit from her gut with the consequence that she inhaled it.”

Bailey v MoD • “The question then arises as to whether the Claimant can be said to have proved to the relevant standard that the negligence that occurred on 11 and 12 January caused or materially contributed to her inability to deal with the vomiting in this way.”

Bailey v MoD • “… clear that it cannot have been the sole reason for her weakness. She had suffered acute and severe pancreatitis throughout the same period and, on any view, the effect of that must have played a part in her continued weakness…”

Bailey v MoD • “The Claimant submits that I do not have to be satisfied that the effects of the established negligence represent the sole cause of her weakness; it is submitted that if it can be shown that those effects made a ‘material contribution’ to her weakness that would be sufficient.”

Bailey v MoD • Foskett J distinguishes this from a Wilsher scenario (Wilsher v Essex AHA 1988 AC 1074) - ie more than one possible cause for injury, one of which is negligent, and C cannot prove negligent one was likely

Bailey v MoD • “there is nothing in Wilsher that would prevent the Claimant in this case from establishing a sufficient causal link between the established negligence here and the ultimate weakness if I was able to conclude that it made a material contribution to it even if the other non-negligent source of the weakness also made a material contribution.”

Bailey v MoD • “I do not think it can be doubted that there were two components to the weakness … One component was the weakness engendered by the consequences of the negligence on 11-12 January”

Bailey v MoD • “I cannot say whether the contribution made by this component was more or less than that made by the pancreatitis … All I can say is that the natural inference is that each contributed materially to the overall weakness and it was the overall weakness that caused the aspiration … and that is sufficient to establish the causal link…”

Bailey v MOD 2008 EWCA Civ 883 • The Court of Appeal’s approach • Mat Con is not an application of the “but for” test • “Was this a case in which the judge was entitled to depart from the “but for” test ?”

Bailey v MoD– Waller LJ • ”It seems to me thus respectfully that Lord Rodger in Fairchild accurately summarises the position when he says in paragraph 129 that in the cumulative cause case such as Wardlawthe “but for” test is modified” • “In my view on cannot draw a distinction between medical negligence cases and others”

“I would summarise the position in relation to cumulative cause cases as follows. • If the evidence demonstrates that on a balance of probabilities that the injury would have occurred as result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotsonexemplifies such a situation.”

“If the evidence demonstrates that ’but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden”

“In a case where 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 ‘but for’ test is modified, and the claimant will succeed”

Canning-Kishver v Sandwell Trust 2008 EWHC 2384 QB • Baby born prematurely (25/40) and immediately admitted to NICU with several complications • Extubated at 6 days • Thereafter negligent failure to detect and act on deterioration in cardiac and respiratory function resulting in cardiac collapse requiring resuscitation

Canning-Kishver v Sandwell Trust • Baby developed cerebral atrophy (the injury) • Consensus that was very difficult to explain cause and mechanism of CA • C experts relied on evidence suggesting caused by haemorrhage and that this occurred at time of collapse (blood at LP)

Canning-Kishver v Sandwell Trust • C’s experts gave a number of potential mechanisms by which collapse caused haemorrhage • D’s expert considered unlikely and could be caused by immaturity

Canning-Kishver v Sandwell Trust • Judge held evidence did not establish that this was probably caused by immaturity (non negligent cause) • Accepted cardiac collapse (negligent cause) probably constituted a contribution to the cerebral atrophy that was more than negligible, so C won

Canning-Kishver v Sandwell Trust • Good example of using Mat Con where the mechanism of an injury is uncertain

Williams v Bermuda 2016 UKPC 4 • Mr Williams admitted to hospital in Bermuda with acute appendicitis • Appendix burst and C developed sepsis • Eventually made a full recovery • Alleged negligent delay in surgery

Williams v Bermuda • 1117 - arrived A+E • 1140 – examined • 1310 – CT ordered • 1727 – CT performed • 1930 – CT report received

Williams v Bermuda • A+E doctor discusses with surgeons • Surgical assessment • 2130 – theatre • Found ruptured appendix and pus and phlegmon (present for some time)

Williams v Bermuda • Pus accumulation > sepsis > myocardial ischaemia • Myocardial ischaemic event and lung complications > ITU stay • Judge found ruptured appendix caused sepsis which caused injury to heart and lungs

Williams v Bermuda • Judge found negligent delay in obtaining CT had delayed surgery by between 2 and 4 hours • But C failed to prove that cardiac and respiratory injuries would probably have been avoided • First instance judge awarded $2,000 for extra PSLA during culpable delay but found causation of sespis and consequences not proved

Williams v Bermuda • Court of Appeal held proper test of causation was whether breaches contributed materially to the injury (Bailey v MoD) • A relaxation of the ‘but for’ test • CA overturned decision, $60,000 awarded • Mr Williams donated this to charity • D appeals CA decision on causation

Williams v Bermuda • At PC - • D argued on Bonnington v Wardlaw that negligent and non negligent cause had to be concurrent, whereas here was consecutive • C argued cumulative cause case – injury caused by worsening sepsis caused in part by negligence • PC found for C

Williams v Bermuda 2016 UKPC 4 • Non negligent followed by negligent period of sepsis • Negligent period materially contributed to the process and thus the injury • Irrelevant whether non negligent and negligent causes are concurrent or consecutive • Confusing and unhelpful comment from Court that Bailey was not a departure from the “But For” test

Sido John v Central Manchester Trust 2016 EWHC 407 QB • 30yo doctor suffers head injury after night out • Fall results in sub dural haematoma • C left with brain injury due to – • - SDH • - period raised ICP • -post op infection

Sido John v Central Manchester Trust • C alleges negligent delay in CT and transfer – accepted by Judge • C asserts this caused 7 hour period of raised ICP which made mat con to BI • C did not rely on ‘but for’ test • C entitled to recover in full

Sido John v Central Manchester Trust • D asserts mat con only applies to “single agency” case, like – • Bonnington– dust • Bailey – weakness • Williams – sepsis • This was multiple agency so not MC not available

Sido John v Central Manchester Trust • D also argued Court had to apportion damage to each of the 3 causes of the BI

Sido John v Central Manchester Trust • Judge rejected both arguments as matter of legal principle • Found 7 hour negligent period of raised ICP materially contributed to BI • and C entitled to recover in full

Material Contribution – My Own Experience at Trial • OS v ECNHST • 30 year old nurse • Main allegation of delay in performing ERCP • Minor allegation of dehydration over weekend before • C developed MOF and suffered MI

C’s expert concedes main allegation not negligent in first 5 mins of evidence • Minor allegation only remains • 300ml of fluid in 48 hours not negligent because “no worse than in many hospitals across the country” – D’s surgical expert • D maintains no breach

Causation for negligent dehydration not addressed by experts in reports • Proving dehydration material by reference to Glasgow scoring system for severity of pancreatitis - included raised urea

Dehydration > raised urea > severe pancreatitis • C’s urea before and after weekend • Dehydration increased severity of C’s pancreatitis • Succeeded on material contribution

Material Contribution – Prerequisite • “But For” test does not provide answer to causation • But for negligence, injury probably avoided – C wins • But for negligence, injury probably the same – C loses • Expert evidence does not provide either of above

Material Contribution – Only 3 Ingredients • There were probably a number of causes for the Claimant’s injury • Which were more than negligible • One was due to negligence

Material Contribution – Points to Note • Consecutive or concurrent – doesn’t matter • Single or multiple agent – doesn’t matter • The essential ingredients have to be probable • So it is still a balance of probabilities test

Material Contribution – Points to Note • Does not apply if injury is divisible – can attribute specific elements or proportions of injury to different causes • Does apply if indivisible or cumulative cause

Material Contribution – Points to Note • For Claimant, ask experts to address both tests • Whether negligence probably caused injury • If cannot say or is rejected by Judge, was the negligence one of the causes which contributed to the injury

Material Contribution – Common Applications • Gut cases with multi organ failure are most common • Especially pancreatitis, also appendicitis • But not restricted to those - egSido John and Canning-Kishver

Finally • It is not as complicated as you think • Consider in any case • Claimant – always plead it • Make sure experts address it • You never know when you might need it

Material Contribution – the cases