Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)

A premature baby developed blindness due to Retinopathy of Prematurity (ROP). His parents alleged the hospital was negligent for a minor delay in screening. The court held that even without the delay, the outcome would likely have been the same, so the claim failed on causation.

Facts

The claimant, Master Bishara, was born extremely prematurely at 25 weeks’ gestation. As a result, he was at a high risk of developing Retinopathy of Prematurity (ROP), a condition that can lead to blindness if not treated in time. National guidelines recommended that at-risk infants should have their first screening examination between 6 and 7 chronological weeks of age. The claimant’s first screening took place when he was 7 weeks and 3 days old. At this examination, he was found to have advanced, aggressive ROP in both eyes. Despite urgent laser treatment, he became blind. The claimant, through his litigation friend, sued the NHS Trust, alleging that the failure to screen him by the age of 6 to 7 weeks constituted a breach of duty and that this delay caused his blindness.

Issues

The primary legal issues before the court were:

1. Did the hospital trust breach its duty of care by failing to screen the claimant for ROP before he was 7 weeks and 3 days old?
2. If there was a breach of duty, did that breach cause the claimant’s blindness? This question of causation was the central point of the appeal.

Judgment

The Court of Appeal upheld the trial judge’s decision to dismiss the claim. Lord Justice Tuckey gave the leading judgment.

Breach of Duty

The trial judge had found that the hospital was in breach of its duty of care. The accepted standard, based on national guidelines, was to screen between 6 and 7 weeks. By screening at 7 weeks and 3 days, the hospital had failed to meet this standard. The Court of Appeal did not disturb this finding and proceeded on the assumption that the Trust was in breach of duty.

Causation

The determinative issue was causation. The claimant had to prove on the balance of probabilities that ‘but for’ the negligent delay, his blindness would have been avoided. The court meticulously analysed the expert evidence concerning the typical progression of ROP and the timing for effective treatment.

The trial judge had concluded that the claimant failed to satisfy this burden of proof. The evidence suggested that ROP can develop and progress very rapidly. The judge found that even if the screening had taken place a few days earlier, it was not more likely than not that the disease would have been caught at a treatable stage. It was equally, if not more, plausible that the aggressive form of the disease would either have already been too advanced for treatment or would have progressed to an untreatable stage in the short interval between an earlier screening and the administration of treatment.

Lord Justice Tuckey endorsed the trial judge’s approach to the evidence and his conclusion on causation. He stated:

…the basic question for the judge was whether the claimant had proved on a balance of probabilities that had he been screened at some time before 10 March his sight would have been saved.

In dismissing the appeal, Tuckey LJ affirmed the trial judge’s findings, concluding:

…the claimant had failed to prove that the delay in screening him had caused his blindness. On the crucial issue of causation the judge was entitled to conclude that he could not be satisfied that it was more likely than not that earlier screening would have resulted in a different and better outcome. For these reasons, which are substantially those given by the judge, I would dismiss this appeal.

Implications

The case is a clear illustration of the critical importance of the causation element in clinical negligence claims. It demonstrates that establishing a breach of duty, such as a failure to adhere to clinical guidelines, is insufficient on its own to found a successful claim. The claimant must also satisfy the ‘but for’ test by proving, on the balance of probabilities, that the breach directly caused the harm suffered. The decision highlights the evidentiary difficulties claimants face in cases involving rapidly progressing conditions where the therapeutic window is very narrow, making it hard to prove that a small delay was the definitive cause of the adverse outcome. It reinforces the principle that the court will not find causation based on speculation or the mere loss of a chance (unless falling under specific exceptions not applicable here).

Verdict: The appeal was dismissed; the claimant’s claim for clinical negligence failed.

Source: Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)