NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB)

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.

Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery

In this post, Christopher Fleming of 12KBW discusses the recent decision in Metcalf v Royal Devon and Exeter NHS Foundation Trust [2019] EWHC 3549 (QB).

The case concerned a hypothetical situation that would have existed had the Claimant been referred for necessary investigations sooner. The test to be applied was set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46. The two-stage test, as applied to this case, was:

(a) what would the treating clinicians have done had the breach of duty not occurred? And

(b) if the treating clinicians had not discussed with the Claimant the option of surgery or radical radiotherapy, would that have been negligent?

The Court held that the Bolam test has no relevance to the first of those questions but was relevant to the second question, however, it should now be considered by reference to the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Continue reading “Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery”

The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)

In this post Charley Turton of 12KBW discusses the recent decision of HHJ Coe QC (sitting as a High Court Judge) in Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB). The Claimant suffered permanent nerve palsy of the hypoglossal nerves during laryngectomy. In 145 years of the operation being conducted such an injury had never been reported. C argued that in these circumstances human error was the most likely cause and a “presumption of negligence” arose.

Continue reading “The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)”

“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

Continue reading ““But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31”

Fact-finding in consent cases and confirmation, no free-standing claim for damages arising from a failure to warn: Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585

This blog is by Helen Waller and John-Paul Swoboda of 12 KBW

The Court of Appeal held that there was no free-standing claim for damages arising from a failure to warn of risks associated with a procedure that, on the facts, the Claimant would have undergone in any event.

The facts giving rise to this appeal were that the Claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair.

At first instance HHJ Freedman, sitting as a High Court Judge, held that the Claimant was entitled to damages in respect of a two-month delay in identifying and treating her hernia. The Judge also concluded that the operating surgeon had not provided appropriate information for the purpose of informed consent, but that there was no causation such as to give rise to an action for damages. This was so since, on the facts as held, had the Claimant been so informed then she would have chosen to proceed with the same mesh repair which in fact took place. The evidence before the Court was that the operating surgeon’s view was that a suture repair would be liable to fail, with a very high recurrence risk of the hernia and that the vast majority of surgeons would elect to repair the Claimant’s hernia with a mesh.

There are two points of particular interest. Firstly, the Court of Appeal’s approval of the trial judge’s approach to factual causation, which involved a consideration of the rationality of the decision about treatment. Secondly, the reiteration that the line of case law stemming from Montgomery v Lanarkshire Health Board [2015] 2 WLR 162 and Chester v Afshar [2005] 1 AC 134 does not give rise to a free-standing claim for damages arising from a failure to obtain fully informed consent without more.

The trial judge, in considering what the Claimant would have chosen to do had she been properly informed, considered the rationality of each possible decision: opting for the mesh repair or a suture repair. He found that to opt for the suture repair would have been irrational and that the Claimant herself was not a person who would act irrationally ([2017] EWHC 1495 (QB) at [49]). This was so even though at trial the Claimant gave evidence that she would have chosen the suture repair. In the Judge’s view, this evidence was coloured by her being (possibly erroneously) told in the interim period by another medical professional that it would be inadvisable for her to become pregnant because of the mesh (at [46]). Lady Justice Davies, giving the judgment on appeal, held at [22] that,

The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation. No valid criticism of the judge’s approach, still less his assessment of the factual evidence can be made.

The Appellant abandoned her challenge to the Judge’s finding that there is no free-standing right to claim for damages to compensate her for an invasion of her right to personal autonomy or choice but did contend a right to damages on the basis that her shock distress and consequent depression was “intimately connected” to the failure to obtain informed consent. The Court of Appeal set out the relevant case law reiterating that the “but for” test still applies to causation in consent cases (at [15]) but also reiterated that this is not usually sufficient as it is also normally necessary to show that the breach was an effective cause (which is to say a cause whereby the claimant would have altered the risk s/he exposed themselves to): cf Duce v Wostershire Acute Hospital NHS Trust [2018] EWCA Civ 1307. In this case the appellant did not cross the first hurdle in showing that but for the breach the injury would not have occurred as she would nevertheless have undergone the surgery. Further if the appellant wanted to fit themselves into the exception in Chester v Afshar [2005] 1 AC 134 they would have needed to show a) that the breach was a ‘but for’ cause (on a probabilistic analysis) and b) that the operation would have been deferred had there been full disclosure of risk. In this case there was no evidence the appellant would have deferred the operation on full disclosure of risk but rather that the Claimant would have proceeded with the operation. The appellant’s argument that it was sufficient to show that injury was intimately connected with failure to fully disclose the risks was dismissed as being ‘without merit’.

This is, therefore, a helpful decision confirming the ability of first instance judges to take a logical and pragmatic approach to questions of fact, even when that goes against what a party is subjectively telling the court at trial and in providing clarity around the contours of causation in cases where there has been a failure to provide full disclosure of risk and/or alternative treatments.

Forged Consent & Damages for the Cost of Raising a Healthy Child

In this blog Ted Cunningham of 12KBW examines the recent decision in ARB v IVF Hammersmith v R [2018] EWCA Civ 2803 in which the Court of Appeal confirmed that a parent cannot recover the pecuniary cost of bringing up a healthy child, regardless of whether that alleged loss arose in tort or out of a breach of contract.

Continue reading “Forged Consent & Damages for the Cost of Raising a Healthy Child”

Mothers in Childbirth – Primary or Secondary Victims? Yah v Medway NHS Foundation Trust

In this blog Vanessa Cashman of 12KBW examines the recent decision of Whipple J in Yah v Medway NHS Foundation Trust [2018] EWHC 2964 (QB), a case concerning a claim by a mother for psychiatric damage arising out of the birth of her daughter.

Continue reading “Mothers in Childbirth – Primary or Secondary Victims? Yah v Medway NHS Foundation Trust”

Witnesses of fact: to call, or not to call? Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882

In this post Isaac Hogarth of 12 KBW examines the recent case of Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882 in which the Court of Appeal considered whether to interfere with the trial judge’s findings in relation to whether there had been a negligent failure to detect and remove a portion of retained placenta following childbirth. The Court also considered in particular whether the trial judge ought to have drawn an adverse inference from the Defendant’s decision not to call a particular doctor as a witness.

Continue reading “Witnesses of fact: to call, or not to call? Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882”

Clarity for illegality as stare decisis lives to fight another day: Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841

This blog is written by Helen Waller, a pupil barrister at 12 King’s Bench Walk.

In Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841 the Court of Appeal reviewed the jurisprudence on the defence of illegality in tort, having been invited to reconsider the present position in light of arguments based on the doctrine of precedent. The Court rejected these arguments and provided a clear statement of the operation of the defence.

The Factual Background

This was a tragic case with a set of facts presenting legal questions that would not look out of place in an undergraduate Law exam. The claimant, Ms Henderson, was a long-time sufferer of mental health conditions variously diagnosed as paranoid schizophrenia or schizoaffective disorder. At the relevant time in 2010 her condition had recently worsened and on 25 August of that year, whilst experiencing a serious psychotic episode, she stabbed her mother to death. Ms Henderson was, at that time, under the care of a mental health team managed and operated by the defendant Trust. An independent NHS investigation found failings by the Trust in Ms Henderson’s care and treatment. However, it also found that, “while the killing of Ms Henderson’s mother could not have been predicted, a serious untoward incident of some kind was foreseeable based upon Ms Henderson’s previous behaviour when experiencing a psychotic episode” (at [4] of the judgment). Continue reading “Clarity for illegality as stare decisis lives to fight another day: Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841”