Applying the relevant standards – from the relevant time - DAC Beachcroft

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Applying the relevant standards – from the relevant time

Published 11 April 2017

The recent High Court decision in the case of Finna Sullivan v Guy's & St Thomas' NHS Foundation Trust (2017) is a stark reminder that hindsight is of no use when determining whether there has been a breach of duty, and that any treatment must be judged according to established practice as at the date it is carried out.

The case of Finna Sullivan (as personal representative of the estate of Aiden Sullivan) v Guy's & St Thomas' NHS Foundation Trust (2017) came before Mr Justice Foskett at the beginning of 2017 and concerned a claim brought by Ms. Sullivan, the mother of Aiden, who suffered a serious brain injury during a surgical procedure in 1998.

Aiden was born in 1997 with a severe congenital heart disorder for which he required surgery and, in 1998, a Consultant Paediatrician carried out the necessary Hemi-Fontan procedure, for which he was required to be placed into cardiac arrest. During surgery Aiden's body was cooled to 24°, at which temperature the body's vital organs have a lesser demand for oxygen and brain damage is significantly less likely to occur.  The cardiac surgery was successful however,  tragically, Aiden suffered serious brain damage and died on 6 May 2015, shortly before his 18th birthday.

The Claimant's expert considered that the general view in 1998 was that putting an infant into circulatory arrest should be avoided where it was reasonable to do so, however if it could not be avoided, it should be done for the shortest possible time. He agreed with the Defendant's expert that it was reasonable in this case to put Aiden into circulatory arrest.

The issue before the Court was whether, during the period of circulatory arrest, Aiden's body was sufficiently cooled; the Claimant's case was that in 1998, 18° was the accepted temperature to safely perform the surgery. It was of note that the Consultant who performed the procedure (lasting 25 minutes) was a very skilled surgeon, and the Court found that it was not unreasonable for him to "take a view" on what temperature Aiden should be cooled to – subject to there being no established learning or other evidence that the temperature chosen was too risky.

Mr Justice Foskett held that in determining whether there was an established practice in 1998, factors to be considered included that the National Institute for Health and Care Excellence (NICE) had not produced guidelines, and that there was no written protocol at the Defendant Hospital. However these points were not determinative; it was clear in 1998 that there was no 'established pattern of practice'. The general consensus within the paediatric cardiac surgery community was the longer the surgery, the cooler the body needed to be. The Claimant was unable to satisfy the Court that there was an established practice that cooling the body to 24° carried too high a risk of significant neurological damage. It was noted that many surgeons may not have done what this particular surgeon did, but that the surgeon's actions were logical, based on the existing knowledge in 1998 and were supported by a body of responsible opinion.

What can we learn from Sullivan?

This case is a stark reminder that hindsight is of no use when determining whether there has been a breach of duty. The Court must determine what the established practice was at the time of the alleged negligence before it can be said that there has been any breach. In order to determine this issue, the Court will take into account evidence from a number of sources, for example NICE guidelines, local protocols and expert evidence. It is important that the experts instructed to assist the Court have practiced at the relevant time and can therefore give direct evidence as to the knowledge and practice at the time. Clearly this can present difficulties when trying to locate experts in cases where the treatment dates back many years. We are assisted to some extent by the Limitation Act but there remains a cohort of cases where time does not run against Claimants meaning on occasion it is necessary to seek expert evidence of practices dating back decades. Literature can help as can old texts; nevertheless investigation can still prove challenging particularly with very old cases where the documentation in medical records is not of the same quality as that expected now.

Rachel Thompson
rathompson@dacbeachcroft.com

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