Evidence of breach in paediatric claims: avoiding the trap of hindsight bias

The mechanism of hindsight bias in clinical evidence

In paediatric clinical negligence, an expert’s assessment of breach of duty is often susceptible to hindsight bias. This cognitive trap occurs when knowledge of an adverse outcome influences the evaluation of clinical decisions made at the material time. For instructing solicitors and counsel, ensuring that an expert report is insulated from this influence is vital for the integrity of evidence in England and Wales under CPR Part 35. An expert must distinguish between the information available to the clinician at the time and the eventual outcome, which was often unknown to the treating team.

Applying the Bolam and Bolitho framework

Under the principle established in Bolam v Friern Hospital Management Committee [1957], a practitioner is generally not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion. Bolitho v City and Hackney Health Authority [1998] introduced a qualification: the court may reject an expert’s opinion if it is not capable of withstanding logical analysis. In paediatric claims, an expert report should demonstrate that the clinical decision-making was supported by a body of opinion and is internally consistent. The report should evaluate whether the clinician’s choices were defensible given the diagnostic uncertainties prevailing at the time, rather than measuring them against a standard of perfection.

Evidence requirements and managing gaps in records

The credibility of a breach of duty opinion depends on the completeness of the evidential base. In complex paediatric cases, this includes neonatal intensive care charts, observational notes, and serial imaging reports. Where clinical records are absent, an expert should identify the nature of the missing evidence rather than speculating. A report that assumes facts not found in contemporaneous notes without identifying those assumptions risks being deemed unhelpful to the court under CPR 35.10. Experts should clarify where their reasoning relies on specific assumptions regarding the state of the child at a given interval.

Expert discipline boundaries

Paediatric claims often involve multi-disciplinary care, including obstetrics, neonatology, and paediatric neurology. A common point of failure is when an expert in one discipline opines on the standard of care in another. While an obstetrician may address intrapartum management, the assessment of a neonate’s physiological response to birth often falls within the expertise of a neonatologist. When a question of breach involves the interpretation of fetal heart rate monitoring, the obstetric expert’s view is central; however, if the focus shifts to neonatal resuscitation, the report should defer to the neonatological evidence. Clear instruction regarding these boundaries helps ensure expert evidence remains within the witness’s proven field of practice.

Procedural safeguards and expert interaction

Under CPR 35.3, an expert’s primary duty is to the court, overriding any obligation to the party instructing them. Where the court directs a discussion under CPR 35.12, the objective is to narrow the issues and clarify technical disagreements. This process is intended to assist the court and should not be used to resolve disputes of fact. When a court directs that evidence be given by a single joint expert under CPR 35.7, instructions to that expert must be provided in accordance with CPR 35.8. When experts are asked written questions under CPR 35.6, they must be proportionate; these questions should not seek to re-argue the case or introduce retrospective information to influence clinical judgement. An opinion on breach of duty must remain tethered to the clinical context at the time of the incident to ensure the evidence is robust and objective.