Doctor cleared in cerebral palsy case

The Privy Council has cleared Dr Marwan Abdulla in a long-running medical negligence case involving Aeden Balwah, who was born with cerebral palsy in 2002.

Balwah was delivered by Caesarean section at Surgi-Med Clinic, where Abdulla had served as his mother’s obstetrician throughout the pregnancy. After the diagnosis, Balwah’s mother, Shelly-Ann Balwah, sued both Abdulla and the clinic.

In 2020, High Court Judge Kevin Ramcharan found that Abdulla and Surgi-Med had breached their duty of care, but ruled that the evidence did not prove the breach caused Balwah’s cerebral palsy. The judge found that Abdulla arrived at 4:30 a.m., leaving too little time for the injury to have occurred during delivery. The condition was attributed to an event before birth rather than negligence during delivery.

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In no sense could the decision that Dr Abdulla had arrived at 4.30 a.m. and attended delivery thereafter be categorised as rationally unsupportable. There was ample evidence to support it.

The Court of Appeal upheld the findings against Surgi-Med but changed the finding concerning Abdulla. It concluded that he had arrived at 4 a.m., by which time partial prolonged hypoxic ischaemia had occurred, and that negligent management of labour and delivery had caused the cerebral palsy.

The Privy Council rejected that approach. It said the High Court’s finding about Abdulla’s arrival time was supported by “ample evidence” and was not “rationally unsupportable.” The council also said the Court of Appeal should not have entered judgment against Abdulla on the substituted finding. Abdulla’s appeal was allowed, while the decision concerning Surgi-Med remained in place.

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The Board concludes that the Court of Appeal went too far too fast in entering judgment against Dr Abdulla on the basis of the substituted finding.