1. This is another decision from Mr Justice Ritchie which, like CNZ v Bath, focusses on consent in an acute setting rather than the more leisurely context of the outpatient clinic.

2. The Claimant suffered spinal cord injury as a result of the penetration of her spinal cord by an anaesthetic needle.

3. An epidural had been recommended to provide post-operative pain relief following major bowel surgery. There were alternatives to an epidural, including patient controlled analgesia. The Claimant’s case was that it was a breach of duty to recommend epidural without giving any alternatives.

4. Doctors made a total of 10 attempts at placing the epidural. The first three attempts were made whilst the Claimant was conscious. There was no criticism of these attempts.

5. After these initial attempts the Claimant was distressed and in pain. Seven further attempts at placing the epidural were made after general anaesthesia had been induced.  The last four of these were by a second anaesthetist. One of the seven ‘unconscious’ attempts led to the spinal cord injury.

1. If you ever worry that you find it hard to get your head around material contribution then stop. You are not alone.

2. The Court of Appeal has now given welcome clarification and explained:
   1. That material contribution causation applies both to divisible and indivisible injuries.
   2. That this area of law “has been bedevilled by apparent inconsistency and imprecision at the highest level on multiple occasions.” [in other words it wasn’t just you and you weren’t imagining it].

McCulloch v Forth Valley Health Board

Mr McCulloch died in April 2012 after suffering a cardiac arrest. He had reported chest pain and received treatment at Forth Valley Hospital. His treating cardiologist, Dr Catherine Labinjoh, decided that his presentation was inconsistent with pericarditis. He was discharged a few days later, but then readmitted. Dr Labinjoh saw him the following day. Her evidence was that he was walking around the ward and looking well. He denied chest pain. She decided not to offer or prescribe non-steroidal inflammatory drugs (“NSAIDs”) but said in evidence that if he had complained of chest pain, she would have prescribed NSAIDs. The following day, he suffered a fatal cardiac arrest.

His widow brought a medical negligence claim against the Health Board on several grounds, but the primary argument  was Dr Labinjoh’s alleged failure to discuss reasonable alternative treatments for pericarditis. It was agreed at the court of first instance that the standard treatment for pericarditis was NSAIDs. Dr Labinjoh’s position was that she did not discuss the option of NSAIDs as, at the time of the second admission, his presentation was  not consistent with pericarditis. Mr McCulloch did not have chest pain and her practice was only to prescribe NSAIDs for pericarditis when pain was reported. Her actions/decision-making was supported by the expert cardiology witness for the Health Board.

CNZ v. Royal Bath Hospitals NHS FT and SoS for Health and Social Care, 11 January 2023

1. Mr Justice Ritchie has given judgment for the claimant in a historic CP case which has significant implications both for Montgomery and material contribution causation in clinical negligence cases, particularly those involving acute profound hypoxic ischaemia. The Claimant, a second twin, was born in 1996. She has profound disabilities as a result of about 16 minutes’ acute profound hypoxia.

2. In summary:

• Montgomery applied in 1996;
• Montgomery applies to both antenatal consultations and decisions made intrapartum in the delivery room/ operating theatre;
• Elective caesarean section was a ‘reasonable alternative treatment’ for twins in 1996 even where this was ‘not standard management’;
• acute profound hypoxic ischaemia is a ‘divisible injury’ to which material contribution applies;
• it is not possible to divide the functional outcome which would result from a shorter insult, so a claimant is entitled to damages in respect of 100% of her injury even if she would have suffered some injury in any event;
• in an acute profound hypoxic ischaemia case, ‘every minute counts’.

I wrote an article in June last year on material contribution after the case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB. Since then another first instance judge has again expressed obiter remarks on the topic in the case of Thorley v Sandwell and West Birmingham NHS Trust 2021 EWHC 2604 QB.

Like Davies, the judge in Thorley also expressed the view that material contribution only applies to divisible (in the sense of dose related) injuries. This article addresses whether that principle is correct and considers the leading authorities on the point – MOD v AB and Others 2010 EWCA Civ 1317 and Williams v Bermuda 2016 UKPC 4.