Ruwena Khan reviews Clinical Negligence Birth Injury ClaimTalia Webster
Clinical Negligence: Birth Injury Claim
Ruwena Khan reviews NKX (By his L/F NMK) v Barts Health NHS Trust  EWHC 828 (QB)
Clinical negligence litigation continues apace as Simeon Maskrey QC, sitting as a Deputy High Court Judge, handed down Judgment last week in a clinical negligence birth injury case (severe neuro-disability consequent upon an acute near total hypoxic-ischaemic insult) following a two-week trial which concluded early last month. This case highlights the ever-increasing importance placed on a patient’s right to autonomy in the decision-making process and the need to ensure that any information provided, including as to the risks to themselves and their baby, is properly understood and appreciated (Montgomery v Lanarkshire Health Board  UKSC 1 considered).
The Judgment can be found here: https://www.bailii.org/ew/cases/EWHC/QB/2020/828.pdf
It was the Claimant’s case that:
- his mother was given no or no sufficient warning that she should have continuous foetal monitoring (CFM) when she was in labour;
- if she had been given appropriate warnings, she would have accepted CFM rather than, as in fact occurred, monitoring by intermittent auscultation (IA);
- CFM monitoring would have detected abnormalities of the foetal heart earlier than abnormalities were in fact noted;
- as a consequence, a uterine rupture would have been detected more quickly than in fact was the case; and,
- delivery would therefore have been achieved more quickly, thus avoiding some of the acute profound hypoxia that accompanied the uterine rupture and some or all of the permanent brain damage resulting from it.
Further to the above, it was argued that had IA been increased in frequency from the point at which midwifery staff should have known or assumed that his mother was in the second stage of labour, that this would also have resulted in earlier detection of the uterine rupture.
The Defendant’s case was that:
- the Claimant’s mother opted for delivery in the birthing centre monitored only by IA fully aware of the risks and benefits of so doing and exercising her undoubted right to choose how and where she would undergo labour and with what monitoring;
- had she been the subject of CFM there was no reason to suppose that there would have been significant early warning of the impending uterine rupture and thus no reason to suppose that delivery would have been achieved sufficiently early to have avoided damaging hypoxia; and,
- the period of hypoxia was more likely to have lasted 35 minutes rather than the 25 minutes contended for by the Claimant (and thus brain injury brought about by the hypoxia would not have been avoidable in any event).
Time has moved on since the opinions of the medical profession were the unique proponent of assessing the standard of care in clinical negligence claims (Bolam v Friern Hospital Management Committee  1 WLR 583]). Lord Scarman’s dissenting judgment in Sidaway  AC 871, taking as a starting point the patient’s basic human right to make his own decision, led to ever increasing number of cases seeking to mould the test as the years passed.
Finally, in Montgomery, the Supreme Court emphasised that an adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and their consent had to be obtained before treatment interfering with their bodily integrity was undertaken. Doctors were under a duty to take reasonable care to ensure that patients were aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality was whether, in the circumstances, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient would be likely to attach significance to it.
The Claimant’s mother was seen by Midwife Finney and she was booked into the VBAC clinic (vaginal birth after caesarean section). A VBAC was considered to be ‘high risk’ because there was a small but real risk of uterine rupture through the caesarean scar during labour. The Claimant’s mother appreciated these factors in addition to the fact that there would be “close monitoring”.
At a later appointment with Midwife Hart, the risks and benefits of a VBAC delivery were discussed and a proforma was completed which suggested that the risk of uterine rupture was discussed. The Claimant’s parents stated, however, that they did not appreciate what CTG monitoring entailed and did not appreciate that it was designed to give early warning where possible of uterine rupture. They also denied appreciating that a risk of rupture was permanent brain damage. They were adamant that Midwife Hart did not explain what continuous CTG monitoring was or how it might mitigate the risk of brain damage being the consequence of uterine rupture. They also stated that there were no discussions about the differences between CTG monitoring and IA.
The Judge accepted the Claimant’s parent’s account. Likewise, he accepted that they did not appreciate that hypoxic-ischaemic encephalopathy (HIE) might result in their baby suffering brain damage. The proforma did not mention brain damage or the consequences of HIE. He further went on to find that by the time the Claimant’s mother came to have a consultation with the Consultant Midwife, she had been informed that VBAC was regarded by many women as the more positive experience and that having a water birth in the birthing centre was a reasonable option that would be considered in detail at the consultation.
However, the Judge viewed the consultation with the Consultant Midwife as the “crucial consultation” with its purpose being to discuss the birth plan and agree it if possible. He held that “it was essential that the Claimant’s mother be alerted to the risks and benefits of the plan and it was essential that she understood the risks…” (paragraph 25).
The Consultant Midwife and the Claimant’s mother had starkly differing accounts of the advice that was given during their consultation. The Claimant’s mother stated that she did not appreciate that IA carried with it more risk for the baby and she did not know why there needed to be more staff if there was to be IA. She did not appreciate the difference between continuous and intermittent monitoring although she heard the words. She did not understand or reflect upon the difference it made in terms of risk of injury consequent upon uterine rupture.
Breach of Duty
The Judge concluded that the Consultant Midwife told the Claimant’s mother that IA was not recommended by the RCOG; that a uterine rupture was a small possibility but that CFM reduced the risk of a rupture damaging the baby; and, if she wanted to labour in the birthing centre without CFM (where it might not be available) that would only be possible if staffing levels permitted. He also concluded that the Claimant’s mother did appreciate the difference between CFM and IA and did appreciate that CFM carried a greater chance of detecting a rupture than IA. These conclusions were reached on a number of bases, including the fact that the Claimant’s mother was intelligent and would appreciate the difference between ‘continuous’ and ‘intermittent’; she had been provided with a leaflet that stated a VBAC would necessitate continuous heartbeat monitoring; the Consultant Midwife had also texted to emphasise that CFM was the standard care offered; the birth plan summary made it clear that the Consultant Midwife’s preference was for continuous rather than intermittent monitoring.
There was no breach of duty in relation to the antenatal counselling.
Care and Counselling During Labour
The Claimant’s mother went into labour at 41 weeks’ gestation over a bank holiday weekend. It was alleged that she immediately wished for IA and the birth centre. Midwife Havire stated that she explained to the Claimant’s mother the risks of not having continuous CTG monitoring and that IA only took place every 15 minutes. The Claimant’s mother consented to initial CTG monitoring only after, it was alleged, Midwife Havire explained there were additional risk factors, namely that she was contracting and that she was 7 days overdue. The birthing notes did not record that the Claimant’s mother was insisting on IA or was declining CFM. The Claimant’s parents denied that there was any request or insistence to be transferred to the birthing centre or to have IA only.
The Judge accepted the Claimant’s parents’ evidence, noting Midwife Havire took no steps to escalate her worries to the Midwife Coordinator or to an obstetrician prior to the transfer to the birthing centre. The first time she mentioned anything out of the ordinary was at about 1am when the Claimant’s mother was in the birthing centre. This did not tally with her allegations about the Claimant’s mother. Similarly, the Judge was not persuaded by the evidence of the other Midwives as to the events that took place on triage. It was found that the midwifery staff simply considered the birth plan had been agreed with the Consultant Midwife and that they did not warn the Claimant’s mother of the risks or potential consequences of IA nor did they recommend she should have CFM in order to reduce the risk to the baby.
Breach of Duty
As there was no counselling or re-assessment of risks when the Claimant’s mother came to the hospital in labour, it was held that there was a breach of duty on the part of the Defendant during the night of labour. Counselling and a re-assessment of risks was necessary because there was a very real possibility that the Claimant’s mother would change her mind if provided with a sober re-assessment of the risks and benefits of IA given that the maternity unit was very busy and there was no assessment as to whether Midwife Bigwood (who took over from Midwife Havire) was or was not someone capable of managing a VBAC labour with IA. Further, CFM simply could not happen in the pool because there was no available wireless CTG monitor.
It was held that had the Claimant’s parents been given counselling and re-assessment on the night of labour, in conjunction with the fact that the Claimant’s mother was not as closely monitored as had been anticipated during this period of time, there would have been acceptance of whatever additional monitoring could be provided whatever the previous thought processes had been. This was particularly so if they had been told that there were no midwives present who had had the experience of caring for a VBAC labour without CFM. Therefore, there would probably have been continuous CTG monitoring as a consequence of which there would have been a vaginal examination at 00.45 hours, and it would have been appreciated that the cervix was fully dilated. Even if he was wrong as to the choice of CTG, the Judge held that there should have been IA every 5 minutes from 00.45 hours.
Once the Claimant’s mother had entered the second stage of labour, as noted above, it was the Claimant’s case that the IA should have been every 5 minutes. Thus, heart abnormalities would or should have been detected from 00.30 hours even without CFM and a decision to deliver should have been made by 01.00 hours as the Clamant alleged the second stage of labour commenced at 00.20 hours. Whether or not she was in the second stage of labour, an obstetrician should have been called soon after 01.00 hours because of the complaint made by the Claimant’s mother that she was in continuous pain.
It was agreed between the expert paediatric neurologists that effective resuscitation was probably achieved at three minutes of age at 01.49 hours. The Claimant was transferred to the neonatal unit and then to RLH for therapeutic cooling. HIE was noted. An MRI was performed approximately one week later which revealed changes suggestive of the Claimant having sustained brain damage consequent upon an acute near total hypoxic-ischaemic insult. It was confirmed that the Claimant was suffering from four-limb cerebral palsy.
Breach of Duty
The Judge found that the Claimant’s mother was in the second stage of labour from 00.35 hours (paragraph 81) given that it was recorded that she was pushing with contractions. He held that IA should have taken place every 5 minutes thereafter. Further, it was a breach of duty not to have recognised that being in continuous pain at or around 01.00 hours was a sign of uterine rupture and to have called for obstetric assistance. The Judge concluded on the evidence that the rupture probably occurred between 00.45 hours and 01.00 hours and that the normal auscultation recorded at 01.00 hours was not a bar to that finding.
If the Claimant’s mother had been the subject of CFM it would have been apparent by 01.00 hours that there was a potential obstetric emergency – this was in the context of a number of factors, including a VBAC woman apparently in or nearing the second stage of labour with atypical decelerations and complaining of continuous pain. Even without the added factor of a pattern of decelerations an obstetrician ought to have been called. If the Judge was wrong in his conclusions as to CFM and/or that the Claimant’s mother complained of continuous pain, if IA had been every 5 minutes, he remained of the view that obstetric assistance ought to have been sought by 01.05 hours.
As a result, delivery would have been 15 minutes earlier at 01.31 with effective resuscitation by or about 01.32 hours (or alternatively 01.36 and 01.37 hours, respectively with IA).
The Claimant’s expert evidence was that the Claimant sustained a bradycardia at 01.14 hours; that it had no effect on the Claimant’s oxygenation until 01.24 hours and that the Claimant then sustained 25 minutes of acute profound hypoxia. The Claimant’s experts agreed that had delivery and resuscitation occurred before 01.34 hours the Claimant would have avoided all permanent brain damage.
The Defendant’s experts were of the view that the Claimant sustained 35 minutes of acute profound hypoxia and that as survival after 30 minutes was unusual, there must have been some oxygenation of the brain after 01.14 hours. Readjusting the Myers model, they concluded that the Claimant needed to be delivered and resuscitated by 01.38 hours to avoid all damage and 01.35 hours to suffer only mild brain damage.
The Judge preferred to adopt the extended Myers model because he considered there was some oxygenation of the placenta and thus the foetus after 01.14 hours which meant that the period before which foetal reserves were exhausted was extended. Therefore, damage would have started to occur at 01.28 hours and mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis that it was found 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.
As noted above, the patient’s right to make their own decisions with all material risks and information being disclosed is of central importance in clinical negligence litigation. This Judgment emphasises that the need for a patient’s decision to be an informed one is continuous as risks and circumstances can change and evolve, particularly during the labour process.
Ruwena is a Legal 500 Leading Junior in Personal Injury and Clinical Negligence law, recommended as being “extremely capable”, “highly experienced across a range of personal injury matters” and having “strong legal knowledge”. Ruwena has been recently appointed Deputy District Judge (North Eastern Circuit, 2019).
16th April 2020