In this blog post, Helen Waller of 12KBW discusses the case of NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB), regarding brain damage at birth due to clinical negligence. Although it is a case largely based on its own facts, it is nonetheless an example of careful judicial analysis of complex and detailed expert evidence. It demonstrates the importance of the parties and the court having a full understanding of the medical issues in order to properly address both breach and causation.
Background
This case concerned an expectant mother who, having given birth by caesarean section to her first child, was advised to and intended to have a natural birth for a second child (vaginal birth after caesarean section, “VBAC”). During labour, she developed a uterine rupture along the caesarean scar. As a result of this, her baby, the Claimant, suffered acute profound hypoxia resulting in permanent, significant brain damage, which left him with cerebral palsy, microcephaly, and cognitive impairment.
The case pivoted on the monitoring of the foetus during labour. The two options were continuous foetal monitoring (“CFM”) or monitoring by intermittent auscultation (“IA”). In accordance with the mother’s birth plan, delivery was to take place in a birthing centre, where, on the day, CFM was not an option and so IA was undertaken. The Claimant’s case was that CFM would have detected foetal heart rate abnormalities earlier and that, as a consequence, the uterine rupture would have been detected and delivery achieved sooner, thus avoiding some of the hypoxia and resultant brain damage. The Claimant’s secondary case was that IA should have been performed more frequently from the point at which his mother was known or assumed to be in the second stage of labour, which would have again resulted in earlier detection of the uterine rupture.
The Claimant alleged that the Defendant’s midwifery staff had not taken reasonable steps, either in advance of or during labour, to inform her that monitoring by IA rather than CFM would risk slower detection of a uterine rupture putting the baby at greater risk of sustaining permanent brain damage. Both factual and medical causation were in issue.
Expert evidence was provided orally in the fields of midwifery, obstetrics, neonatology and paediatric neonatology. There was, additionally, written neuroradiology evidence, which was essentially agreed.
The Law
The legal position was uncontroversial. The parties were agreed that Montgomery v Lanarkshire Health Board [2015] UKSC 1 makes clear that medical professionals owe a duty to take reasonable care to ensure that a patient is informed of any material risks and that a patient has understood what they have been told. Further, Bolam v Friern Hospital Management Committee [1957] gave the standard of reasonable care in this case as being that of a midwife of ordinary skill and care.
The Judgment
The matter was heard by Simeon Maskrey QC sitting as a Deputy High Court Judge for a determination on liability alone.
He gave judgment for the Claimant “on the basis that but for the breaches of duty that occurred … he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability” [123]. The parties were agreed as to what constituted mild as opposed to severe neurodisability and so no definition of those terms by the Court was necessary.
Antenatal Counselling
No breaches were found in respect of the antenatal counselling.
It was accepted that VBAC is considered to be high risk, because there is a small but real risk of a uterine rupture through the caesarean scar during labour. The Claimant’s mother had expressed an interest in having a water birth at the midwifery-led birthing centre. It was found that she had not been led to believe that this was a higher risk option, nor was she discouraged from it. Rather, she was led to understand that her birth plan would be subject to review upon her admission when she went into labour. This was relevant because it was possible – as indeed eventuated – that CFM would not be available on the day in the birthing centre, leaving only IA monitoring.
The midwife who had summarised the Claimant’s mother’s birth plan in writing had briefly noted “aware of RCOG guideline” in respect of monitoring. The midwife had in fact changed her notation practice since the index birth incident as a result of this case. Nonetheless, the Judge did not find that her approach at the time fell below a reasonable standard. He found, on the evidence, that the absence of specific reference to the risks and consequences of IA did not cause him “to doubt that the risks and consequences were discussed” (at [34(viii)]). It was found that the mother was aware of the risk of scar rupture and appreciated that there would be close monitoring of that.
Care and Counselling During Labour
The Defendant was found to be in breach of duty on this issue.
The Judge found that the Claimant’s mother was not wedded to a water birth; however, the triage and delivery suite were so busy at the relevant time that the midwives on shift “did not have the time or the incentive to discuss with the Claimant’s mother her birth plan and … they did not do so” (at [57]). The mother was not, therefore, given the chance to review or reconsider her birth plan.
Given the agreement between the midwifery experts that the birth plan required reconsideration when the mother went into labour, the Judge concluded that there was a breach of duty at that stage. He found that, with further counselling and a re-assessment of the risks, there was a very real possibility that the Claimant’s mother would have changed her mind on a water birth and IA given how busy the maternity unit was, and that there had been no assessment as to whether the relevant midwife was capable of managing a VBAC labour with IA (see [74]-[75]).
Management of Labour
The Defendant was also found to be in breach of duty in respect of the management of the index labour.
It was the Claimant’s case that his mother had entered the second stage of labour at 00:20 on the relevant day and that, thereafter, IA should have been carried out every 5 minutes. IA was in fact carried out every 15 – 20 minutes. The Judge found that the midwifery staff “should have either confirmed that the Claimant’s mother was in the second stage of labour before she entered the birthing pool or should have made that assumption and performed IA every 5 minutes thereafter” (at [79]). He found as a fact that, on the balance of probabilities, the Claimant’s mother was in the second stage of labour from 00:35.
The Judge further found that the Claimant’s mother was in continuous pain at or around 01:00. He held that it was a breach of duty not to have recognised that this was a sign of uterine rupture and called for obstetric assistance (at [82]).
The Decision Making
The Judge held the following counter-factual of what, on balance, would have occurred had the breaches not taken place [88]:
“I thus find that there should have been a re-statement of the risks to the Claimant’s parents on admission on the 23rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM. Accordingly, I find that in such circumstances there would probably have been continuous CTG monitoring.”
The Judge held that if there had been a vaginal examination at 00:45, as he found there should have been, it would have been appreciated that the Claimant’s mother was in the second stage of labour. Therefore, if he was wrong on his previous findings, there should instead have been IA monitoring every 5 minutes from 00:45.
The Judge then turned to consider whether continuous CTG monitoring, or IA every 5 minutes from 00:45 would, on the balance of probabilities, have resulted in the abnormal foetal heart rate being appreciated before 01:15 (when it in fact was). He then had to decide what the probable consequences of that would have been. This involved a careful consideration of conflicting expert obstetric evidence as to the nature, timing and duration of foetal heart rate abnormalities.
The Judge held that the uterine rupture probably occurred between 00:45 and 01:00, which would explain why the IAs were normal before 00:45 and why the Claimant’s mother came to be in continuous pain consequent upon the rupture by about 01:00. Although there was a normal IA recorded at 01:00, the Judge found that, despite that recording, there was in fact an atypical deceleration of foetal heartrate that was not detected. However, he held that it was not necessary to determine whether that failure in detection was itself a breach (at [101]). Accordingly, he found that, if the Claimant’s mother had been subject to CFM, it would have been apparent by 01:00 that there was a potential obstetric emergency, for which all reasonably competent midwives would have sought emergency assistance (at [103]).
The Judge did not criticise the reaction of obstetric staff that in fact took place at 01:15, and it was found that the same reaction would have taken place at 01:00, had the assistance been sought. He found that, with CFM, delivery would have been achieved at 01:31 and resuscitation by or about 01:32, and, with IA every 5 minutes, delivery would have been achieved at 01:36 and resuscitation by or about 01:37.
Causation
The Judge found that the Claimant would have sustained mild, rather than severe brain damage, if delivery and resuscitation had taken place by 01:32.
The Claimant’s experts, Dr Dear, expert neonatologist, and Dr Thomas, expert paediatric neurologist, were of the opinion that the Claimant had sustained 25 minutes of acute, profound hypoxia, following the method in the Myers at al paper (1971). Accordingly, they concluded that if delivery and resuscitation had occurred before 01:34, the Claimant would have avoided all permanent brain damage.
Dr Emmerson, expert neonatologist, and Dr Smith, paediatric neurologist, both for the Defendant, rejected that model. They opined that the Claimant sustained 35 minutes of acute, profound hypoxia, postulating that there must have been some oxygenation of the brain after 01:14 and therefore the Myers model could only be applied with an extension. Following this approach, they said that the Claimant needed to have been delivered by 01:28 to avoid all damage.
The Judge undertook a close and careful analysis of the competing opinions at [107] to [122]. On his analysis of the facts, the Judge preferred the extended Myers model, finding that the continuation of some oxygenation meant that the period before which foetal reserves were exhausted was extended (at [120]). He concluded [at 122]:
“It follows that if the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case.”
Comment
This was a technically involved case necessitating a close analysis of the facts and competing expert evidence. It is another reminder of the value of the legal team being on top of the fields of expertise and taking the time to get to grips with the literature upon which the experts relied. When medical causation pivots on action or inaction over just minutes and seconds, the expert and legal arguments are likely to be equally finely balanced.
Clinical Negligence Law 