Clinical negligence update: cerebral palsy, surgical teams' responsibility, new evidence

Jock Mackenzie reviews the latest cases on cerebral palsy, midwives' jugdement, consideration of fresh evidence, and whether surgical staff used excessive force

In Chappell v Newcastle upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 4023 (QB), Judge McKenna, sitting as High Court judge, had to consider whether C's severe cerebral palsy was because of N's obstetric and midwifery staff's negligence when C was born in 2000.

Cerebral palsy

C's estate brought the claim following C's death in 2012 on the basis that a syntocinon infusion had caused his mother's uterus to contract too frequently, which, coupled with allowing labour to go on for too long, caused a prolonged period of chronic partial hypoxia and consequential brain damage.

The claimant contended that there had been clear maternal infection, poor progress of labour, no descent of the head and a pathological CTG trace, such that the junior obstetrician needed to have recourse to advice from a senior obstetrician before proceeding. N argued that there was nothing untoward about the obstetric care and that, in any event, C's injury was because of infection causing neonatal meningitis, unrelated to any obstetric care.

The court found against C. The judge preferred the evidence of N's obstetric expert and concluded that the junior obstetrician had a credible explanation for the delay in descent of the head and that there was no indication from the CTG that the foetus was in danger. Together, these led to the conclusion that the management had been of an appropriate standard, and there was no need to seek advice of a senior obstetrician. The judge also concluded that, on balance, C's injury had been caused by maternal infection rather than hypoxia in any event.

In another cerebral palsy case, C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB), Green J had to determine the narrow issue of whether it was negligent for a midwife to administer a second dose of a drug (pristine) that induces labour. C's mother (M) was induced at 41 weeks and two doses of 3mg prostin, to stimulate uterine contractions, were administered seven and a half hours apart. A further five hours later, M experienced substantial discomfort and a rapidly dilating cervix. She was urgently transferred to theatre and C was delivered by forceps.

However, M's uterus had ruptured. She suffered a cardiac arrest and died five days later. C suffered intrapartum asphyxia, hypoxic ischaemic encephalopathy and a cerebral injury typical of a period of acute profound asphyxia commencing immediately prior to birth causing dystonic athetoid cerebral palsy.

It was common ground that the hypoxia was caused by M's uterine rupture, that M's death was because of negligent post-natal care and that C's condition was because of the second pristine dose. The defendant admitted liability for M's death. However, the allegation of negligence in administering the second dose of prostin was disputed.

In dismissing the claim, the judge reached a number of conclusions:

• The decision taken by any midwife would be one of judgement based on an assessment of all evidence, including the CTG traces and the mother's level of discomfort.

• The risk of uterine rupture with such a dose of pristine was extremely low (one in 17,000 to 20,000), a fact the midwife would have known.

• The decision was in accordance with the medical guidance (the Data Sheet and BNF).

• A midwife would take into account the mother's history and in this case M was not in an especially vulnerable category.

• When the second dose was administered, the level of uterine activity and M's pain were not such as to identify a particular risk of an unacceptable level.

• Even if the midwife had sought a second opinion from a senior obstetrician, advice to proceed with a second dose would not have been unreasonable.

In the circumstances, the midwife had acted within the range of reasonable judgment and C's claim failed.

Fresh evidence

In Hani Hussain v King Edward VII Hospital [2013] All ER (D) 131 December, the Court of Appeal rejected H's application to adduce fresh evidence and affirmed the High Court decision of Eady J ([2012] All ER (D) 377) in November. H had treatment for bladder cancer, funded by his employer in Kuwait, at the defendant hospital. He had undergone a cystoscopy on 5 January 2005 when, on waking, he experienced severe pain in his left shoulder. Subsequent investigations demonstrated an underlying chronic degenerative condition.

In 2010, H issued proceedings on the basis that his shoulder pain had been caused by negligent handling during the procedure, which had caused his asymptomatic condition to become symptomatic earlier.

At trial, the judge had to consider whether there had been negligent trauma or an acute exacerbation of the underlying condition caused by non-negligent muscle relaxation because of anaesthesia. Eady J found against H on the basis that there was no evidence of bruising, so the probable cause of pain was muscle relaxation.

H appealed on the basis that he had found fresh medical evidence obtained after trial. This comprised a fax cover sheet on 10 January 2005 from a senior medical administrator in Kuwait referring to traces of blood underneath H's skin seen on 7 January 2005 and a letter, written after judgment, from a doctor stating that he had seen severe and extensive bruising on H's shoulder on 7 January 2005.

The Court of Appeal, in exercising their discretion under CPR Part 52.11(2), considered the established principles as set out in Ladd v Marshall [1954] 3 All ER 745 to be relevant, in that the evidence:

(a) could not have been obtained before trial without reasonable diligence,

(b) would probably have an important influence on the result, and

(c) must be apparently credible.

The court considered that it was apparent that the evidence could have been obtained before trial with reasonable diligence, on the basis that H had been dilatory in failing to obtain the documents before trial and in failing to draw to the court's attention the letter in reasonable time.

In any event, the fax was vague about who had seen the blood under the skin, no attempt had been made to contact the senior medical administrator who had signed it, and the doctor's letter was sparse and provided on the condition that he would give no further assistance. Such evidence was not credible. The proposed new evidence comprehensively failed to meet the first and the third Ladd criteria and the appeal was dismissed.

Death avoided

In Ali Shah v North West London Hospital NHS Trust [2013] EWHC 4088 (QB) Judge Collender QC, sitting as a judge of the High Court, considered whether the death of A's wife (S) would have been avoided if her peripheral pulses had been tested by palpation at a second assessment by an obstetrician when S was admitted two weeks after giving birth. This was on the basis that arterial haemorrhage rather than sepsis should have been considered. S died after she collapsed with abdominal pain caused by a retroperitoneal haematoma because of a large tear in the iliac artery.

The judge concluded on the facts that there was no reason for the doctor to think that there had been a haemorrhage, that palpating S's peripheral pulses a second time was necessary or that the surgical team should have been involved then.

Further, the doctor was entitled to be reassured by S's statement that her leg felt normal again. On causation, the case that emergency surgery would have been carried out if S's peripheral pulses had been palpated during the second assessment was highly speculative as there was little supporting evidence.

Excessive traction

In Mohammed Fezan Sardar v NHS Commissioning Board [2014] EWHC 38 (QB), Haddon-Cave J found that S had failed to establish any liability on the part of a hospital for the severe grade-4 brachial plexus injury (BPI) sustained during his birth in 1989, leaving him with a permanent Erb's palsy and significant loss of function of his right arm, as well as Horner's syndrome. S contended that his injuries were caused by the negligence of the hospital staff in applying excessive forceps traction during delivery having encountered shoulder dystocia. The defendant hospital contended that S's right shoulder was posterior on delivery and injured as a result of impact with the sacral promontory prior to delivery and not the application of excessive traction. Alternatively, if S's shoulder was anterior, the traction applied was no more than reasonable. The judge adopted Hickinbottom J's summary in Arthur Croft v Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB) (paragraphs 4 to 9) regarding the mechanics and dynamics involved in shoulder dystocia. The two issues to be determined were the position of the shoulder and whether the injury could only have been caused by the use of excessive force. In finding against S on the facts, the court concluded that S's head was ROA (right occipito anterior) on admission based on:

• the midwife's factual evidence;

• the Gardberg paper in 1998, which demonstrated that a baby which is OP on delivery is more likely than not to have been OA at the onset of labour; and

• that there is no longer any presumption that BPI is caused by excessive exogenous or iatrogenic (i.e. clinician applied) traction rather than excessive endogenous (i.e. uterine contraction and maternal expulsive forces) combined with impact with the sacral promontory, dismissing any res ipsa loquitur argument, especially given S had failed to provide any evidence of excessive traction.

In Karen Jones v Portsmouth Hospitals NHS Trust [2014] EWHC 42 (QB), Supperstone J concluded on the facts that a claimant who had undergone a through-knee amputation as a result of necrotising myositis in her thigh had failed to prove that there had been a negligent delay in getting her to theatre, that remedial surgery carried out before the amputation had been inadequate, or that she had been given negligent advice as to the available reconstruction options leading to an unnecessary amputation. Accordingly, her claim failed.

Detainee treatment

In Amadou Nyang (A Protected Party by his Litigation Friend Ibraham Nyang) v (1) G4S Care & Justice Services Ltd & 7 Ors [2013] EWHC 3946 (QB), Lewis J considered that the treatment of a detainee (N) in an immigration removal centre prior to being returned to Gambia was in breach, but the claim failed on causation.

Broadly, N claimed that staff had negligently failed to identify that he was suffering with an underlying mental health condition. The detention staff owed a duty to take reasonable care to prevent N from committing acts of self-harm, Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 and Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283 followed, and the standard of care to be applied was that accepted as proper by a responsible body of medical opinion, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 applied.

However, the identified breaches of duty were not causative of the injuries sustained by the detainee when he fractured his spine after running into a wall: his act of self-harm would have happened in any event even without the breaches.

 

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Jock Mackenzie is a partner at Anthony Gold

www.anthonygold.co.uk

 

 

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