Clinical negligence update

In Jamie-Lee Anderson v North West Strategic Health Authority [2015] EWHC 3563 (QB), Mr Justice Turner had to consider a case of cerebral palsy caused by the claimant (A) having suffered a period of hypoxia leading up to his birth in 1989 and whether there had been a breach of duty. 

A’s mother had suffered a placental abruption resulting in vaginal bleeding at 32 weeks’ gestation and was admitted to hospital, whereupon it was considered that her membranes might have ruptured. Contractions began and the next day, ?at 9.30am, a consultant obstetrician stated that delivery should be expedited on the basis of the vaginal bleeding, ruptured membranes, premature labour, and variable decelerations of the fetal heartrate on the cardiotocograph (CTG) trace. 

At 11.30am, the CTG started showing cause for concern and, at 12.15pm, a deceleration was noted and syntocinon, a drug used to speed up contractions, was considered. A natural birth occurred at 1.40pm. However, A had started to suffer from the effects of hypoxia from 12.30pm.

A’s case was that the CTG had started to show worrying features from 11.26am, such that, given the history and relevant factors, delivery should have occurred by 12.30pm, thereby avoiding ?the hypoxia and consequential injuries. The defendant’s case was that the CTG traces did not mandate an emergency caesarean section (CS) ?and it had been reasonable to proceed to a natural vaginal delivery.

The case turned mainly on the interpretation ?of the CTG traces and whether they had been interpreted reasonably in all the circumstances. ?In finding against A, the judge considered that ?the traces had been reasonably interpreted, especially given that they were difficult to read and notwithstanding the specific context of the history. A’s expert had not been able to persuade the court that viewing the trace as ‘suspicious’ rather than ‘pathological’ between 11.30am and 12.35pm, and thereby adopting a conservative management approach rather than proceeding ?to emergency CS, fell outside the opinion of a reasonable body of obstetricians in 1989. ?The judge considered that the trace and the complicating background factors had been considered and discussed and it had not been wrong to follow a conservative path. He felt ?he might have reached a different view had the CTG shown a change in the baseline rate and variability of the fetal heartbeat, but that had ?not been the factual scenario. 

Clinical judgement

In Melissa Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395 (QB), another case involving allegations relating to a delivery over 20 years ago, this time in 1993 and again at 32 weeks’ gestation, Mr Justice Jay had to determine whether the defendant’s failure to administer steroids was in breach of duty and causative of the claimant’s respiratory distress syndrome, which resulted in cerebral ischaemia, periventricular leukomalacia, and cerebral palsy. 

In finding for the defendant, the judge concluded that, although there were flaws in the obstetrician’s practice and his reasoning, and although it was accepted that administering steroids in anticipation of impending delivery was mandatory practice in 1993, he had been entitled to conclude there was no clinical indication that the claimant would be delivered within seven days and, accordingly, there had been no need for steroids. This had been a matter of clinical judgement and the court should be slow to criticise it in Bolam terms (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 applied). 

The judge did, however, comment that, if breach had been established, it would have materially contributed to the outcome and the claim would have succeeded in full.

Cardiac condition

In a recent A&E decision, John David Crammond v Medway NHS Foundation Trust [2015] EWHC 3540 (QB), Judge Forster QC, sitting as a judge of the High Court, had to consider the management by an A&E nurse and doctor of chest pain.

The claimant (C) attended the defendant’s A&E department with chest pain and was seen by a triage nurse, who appropriately performed an electrocardiogram (ECG) that was essentially normal. The nurse reported to an A&E doctor in the department. On the basis of the nurse’s findings, that doctor did not review C but streamed him to a same-day GP treatment centre (SDTC) not run by the defendant. When the GP saw C some three hours later, he diagnosed gastritis as the cause of the chest pain.

Approximately four years later, C was diagnosed with cardiac failure and suffered a stroke: a coronary angiogram confirmed severe triple vessel coronary disease and impairment of left ventricular cardiac function. C alleged that in A&E four years earlier a proper history had not been taken and relevant risk factors for an acute coronary syndrome had not been identified, such that he had been inappropriately streamed to the SDTC. Had that not happened, it was agreed that his cardiac condition would have been identified at the time and appropriate intervention would have avoided all the subsequent problems. 

While the judge considered that the triage nurse had not been negligent, because she had only had ten minutes within which to assess C and carry out an ECG, and she had correctly then triaged to the A&E doctor, the doctor had been negligent: he had failed to obtain sufficient information upon which both to make a diagnosis of non-cardiac chest pain and to stream to SDTC. The experts agreed that a normal ECG was simply not enough information, as it was a diagnostically limited test. Accordingly, the A&E doctor needed to take a proper history, which he had failed to do, in breach of duty.

Surgical case

Tracey O’Conner v Pennine Acute Hospitals NHS Trust [2015] EWCA 1244 related to an injury to the claimant’s femoral nerve, which had occurred during dissection of her sigmoid colon during a vesicovaginal fistula repair operation. To repair the fistula, the surgeon had had to move the sigmoid colon out of the way, which involved dissecting the colon from both the pelvic wall and the vaginal side of the fistula. After the surgery, ?it was apparent that the claimant had sustained injury to her left femoral nerve, which the experts agreed was most likely to be due to surgical trauma rather than either use of the device ?to hold the abdomen open or the regional anaesthetic block carried out by the anaesthetist. At trial, the judge concluded that it was the blunt dissection that had caused the nerve injury and that this had been negligently caused. 

In the Court of Appeal, Lord Justice Jackson, Lord Justice McCombe, and Sir Colin Rimer confirmed that, where a trial judge had heard direct evidence and made findings of fact, appellate courts would rarely interfere; however, as in this case, where a judge made findings based on inference, an appellate court might examine that judge’s process of inference. 

The crucial question in this particular case, in which the critical factual evidence was that of the operating surgeon, was whether the judge had fallen into error in drawing inferences from the evidence before him. In this case there were inconsistencies between the evidence of the surgeon and one of the experts about the likely cause of nerve damage. However, both parties had cross-examined the surgeon, so the appeal court was not willing to go behind the judge’s preference of the expert’s evidence over that of the surgeon. 

A further challenge was that the judge had erroneously decided the case as one of res ipsa loquitur, on the basis that the defendant had failed to provide a plausible explanation for the injury. However, the appeal court concluded that the judge had appropriately reached his decision on the totality of the evidence, considering the defendant’s failure merely to be a material factor in finding against the defendant on a balance of probabilities rather than relying on res ipsa loquitur (Ratcliffe v Plymouth and Torbay HA [1998] PIQR P170 and Thomas v Curley [2013] EWCA Civ 117 applied, and Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 followed).

Negligent hip replacement

In Pullen v Basildon and Thurrock University Hospitals NHS Foundation Trust [2015] EWHC 3134 (QB), the claimant (P) claimed for damage caused by an allegedly negligently performed total hip replacement carried out by a consultant orthopaedic surgeon. P’s case was that the acetabular cup for her replacement femur had been inadequately fixed, such that, after working loose shortly after the surgery, it caused her hip to dislocate anteriorly, requiring further disabling prosthetic joint surgery. 

On the facts, the hip had dislocated anteriorly because of the malposition of the acetabular cup, which had loosened such that it had become excessively anteverted, as evidenced during the subsequent surgery. This led to the inescapable conclusion that the cup had not been properly fixed, and the experts had agreed that it would be unacceptable if the surgeon had not ensured that the cup was fixed. As such, Judge Graham Wood QC, sitting as a judge of the High Court, concluded that the surgeon had indeed been negligent.

Dr Jock Mackenzie is a dual-qualified doctor of medicine and solicitor?. He is also a partner at Anthony Gold @AnthonyGoldLaw anthonygold.co.uk

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