Update | Clinical negligence: midwives, paramedics and other medical staff

Midwife

In Croft v Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB), the High Court had to consider whether there had been midwifery negligence during the delivery of the claimant (C) resulting in his shoulder dystocia, and weakness and loss of function of his right arm. C claimed primarily that the midwife (H) was negligent in that, following delivery of C's head and when H had encountered shoulder dystocia, over a period of some 5-10 minutes, she pulled C's head, repeatedly and with force, before summoning assistance by pressing the emergency buzzer.

In determining the case, Hickinbottom J had to consider the factual evidence of C's parents as against that of H. However, H could remember nothing of the delivery and had to rely on her usual practice. It was accepted that, if H had exerted traction on the baby's head as described by C's parents (or, indeed any traction when she knew or ought to have known that the baby's shoulder was impacted), that would have been an inappropriate and dangerous manoeuvre. It was also accepted that putting pressure on the fundus as opposed to the supra-pubis area would have been inappropriate and dangerous. The issues were, therefore, whether H had exerted such traction and whether other clinicians (called to the room by the emergency buzzer) put on such pressure. In finding for the defendant (D), the judge considered very carefully the factual evidence of C's parents, but concluded that their recollection was patchy and inconsistent, and their statements were brief in relation to any excessive traction. While H could not remember the case specifically, the judge accepted that she would never pull a baby's head more than once during a contraction and would summon assistance after the first contraction after that which delivered C's head.

The judge acknowledged the recent change in established thinking in Erb's palsy cases. It was originally thought that natural uterine propulsive forces on the baby's neck during delivery were not sufficient to cause damage to the brachial plexus, such that such injuries were caused by excessive traction. However, the more recent established thinking was that the cause of brachial plexus injuries was multifactorial. The judge referred to the paper by Draycott T et al, 'A template for reviewing the strength of evidence for obstetric brachial plexus injury in clinical negligence claims', Clinical Risk 2008; 14: 96'“100 ('the Draycott paper'), in which a checklist of criteria for reviewing the strength of a brachial plexus injury claim is set out in the form of a table. The factors considered to be more in favour of a propulsion injury as against an iatrogenic injury were: injured posterior arm, absent shoulder dystocia, up-to-date training, appropriate protocol followed and all manoeuvres correctly performed, absence of evidence of excess traction, correct number of birth attendants, precipitous second stage (as against fundal pressure) and temporary injury.

The judge also referred to the case of Bennion v North East Wales NHS Trust (24 February 2009, Unreported), in which HHJ Halbert reviewed over 80 pieces of liter-ature on the subject. The Draycott paper was referred to in that case, as well as in Blakeborough v Walsall Hospitals NHS Trust (17 February 2012, Unreported). While the judge considered the Draycott paper to be helpful, he noted that it stressed that judgment is required as to the relevant factors that ?apply and the weight of those factors in any given case.

In this particular case, the presence of three 'iatrogenic side' factors (anterior arm, shoulder dystocia and permanent brachial plexus damage) was still not sufficient for the claim to succeed, as the factual evidence of what happened in the delivery room between delivery of the head and delivery ?of the shoulders was what was crucial.

Obstetric staff

In another case regarding obstetric intervention, Zhang v Homerton University Hospitals NHS Foundation Trust [2012] EWHC 1208 (QB), a specialist obstetric registrar performed a Caesarean section for an obstructed labour and, in the course of trying to free C's head, which was deeply impacted in the pelvis, C suffered skull trauma and subgaleal haemorrhage and a right parietal fracture with intracranial haemorrhage, resulting in brain damage. C's allegation at trial was that, in disimpacting C's head from his mother's pelvis, the obstetrician used force that was excessive for the purpose in one or more ways: (a) rotation of the head while impacted; (b) deliberate lateral movement of the head to one side to make space for her hand between head and pelvis; and, (c) the 'wedge effect', namely the exertion of lateral force while attempting only downward force by the hand (so named because the hand is wedge-shaped). D accepted at trial that the injuries were caused during the manipulation of the head to disimpact it, in the absence of any evidence that those injuries had been caused either before the manipulation or after disimpaction.

Hickinbottom J, in finding for C, considered on the facts that the obstetrician had attempted to rotate an impacted head and had deliberately attempted to move the head laterally, both of which were inappropriate and dangerous manoeuvres, and hence in breach of duty. The former caused the subgaleal haemorrhage, the latter the right parietal facture and intracranial haemorrhage.

In another obstetric case, (1) Jodie Morris (2) Stevyn Gent v Royal Cornwall Hospital NHS Trust (23 April 2012, unreported), HHJ Cotter QC (Exeter CC) considered whether D's obstetric staff's failure to make a diagnosis of appendicitis in the first claimant (M), while she was 24 weeks pregnant with her second child, A, and her subsequent discharge, was negligent. M was readmitted to hospital 4 days later with acute peritonitis due to a ruptured appendix, resulting in spontaneous labour and A's delivery but subsequent death a few days later. M had presented with abdominal pains, nausea and vomiting. D claimed that such symptoms are not uncommon in pregnancy, but that appendicitis is very rare in pregnancy and notoriously difficult to diagnose. While concluding that M was an honest and frank witness, the judge considered D's two main witnesses (a midwife and obstetric registrar) to be inconsistent, vague and unimpressive. The judge concluded that M did have appendicitis when first admitted, and had remained in pain throughout her admission, although the intensity of the pain varied, and was still in pain when discharged. He also concluded that the nursing assessment failed to record accurately M's condition and there had been a failure to chase a urine sample to rule out a urine infection.

The judge determined that D's care fell outside the acceptable range, in that there had been a negligent failure to: (a) obtain the urine culture result; (b) exclude the diagnosis of a urinary infection; (c) consider adequately the possibility of appendicitis as a differential diagnosis; (d) seek a surgical opinion; and, (e) the negligent discharge of M. On causation, the judge concluded that, had the correct diagnosis been made, M would have undergone an appendicectomy before her appendix ruptured, such that her preterm labour would not have commenced and A would have survived.

Paramedics

In Taafe v East of England Ambulance Service NHS Trust [2012] EWCH 1335 (QB), Sir Robert Nelson considered whether D's ambulance crew's failure to advise Mrs Taafe to attend hospital was negligent. Mrs Taafe had a history of hypertension and a family history of cardiac disease, but no history of indigestion. In February 2007, she developed chest pains and her son called an ambulance, which arrived within 7 minutes. Mrs Taafe was very stressed, but was not sweaty or pale. The crew interpreted two 12-lead ECGs that they performed to be normal, although one of the ECGs had a computer printout stating 'Abnormal'¦. T-wave abnormality, consider inferior ischaemia'. The paramedics considered that it was sufficient that Mrs Taafe was seeing her GP the next day and so did not advise her that she needed to attend hospital. They did not make a diagnosis but sent a copy of the ECG to Mrs Taafe's GP. Mrs Taafe attended her GP the next day, who prescribed pills for depression and indigestion, and considered further review of her cardiac risk. However, Mrs Taafe suffered a myocardial infarction 5 days later, from which she died. D contended that it was reasonable for the paramedics to consider that Mrs Taafe had digestion-like pain and to consider that the ECGs were normal, such that, while some reasonable and competent paramedics might have taken Mrs Taafe to hospital, other equally reasonable and competent paramedics would not have done so.

In finding for C, the judge concluded that the abnormal ECG printout should not have been ignored, that the paramedics failed to take a proper history and failed to carry out a proper assessment of the symptoms and signs that they did find, and that they had insufficient training or knowledge of potential consequences of high blood pressure, the fact that an absence of ECG ST elevation did not rule out an acute cardiac syndrome and that an abnormal ECG printout could be relevant, such that their Bolam defence could not be sustained.

However, in Moied v South Central Ambulance Service NHS Trust (30 May 2012, unreported), John Leighton-Williams QC considered that an ambulance crew had not been negligent while answering an emergency call to deal with a heavily pregnant woman (W) who had collapsed. The crew were concerned that W had suffered a cervical spine injury and were, therefore, reluctant to turn her, even though such turning might have relieved the vomit/fluid that was partially obstructing her airway. W died from a cardiac arrest shortly following the collapse. The judge concluded it was a balancing exercise, and considered that the paramedics had acted within a practice accepted as proper by a responsible body of ambulance technicians. In relation to causation, W's collapse had probably been due to eclampsia, the only way to ventilate her would have been by intubation and there was a substantial risk of W's airway being obstructed as long as her jaw remained clamped in any event.

Facts in appeal

The Court of Appeal in Burnett v Lynch [2012] EWCA Civ 347 demonstrated again that the appeal courts will rarely overturn the decision of a court of first instance on only matters of fact. In this case, the appeal court considered an appeal on only breach of duty following judgment for C in a claim for ?delayed diagnosis of breast cancer.

C's case was that she had a consultation with D between February and March 2006 at which D had diagnosed a breast lump as a blocked milk duct. D denied that the consultation had taken place, as there was no medical note of the consultation and the only record of an appointment in the diary was one that C failed to attend. D said that, if she had felt a lump, she would have referred C to the breast clinic. C was later diagnosed with breast cancer. The judge had found for C but had also noted that it was unlikely that D would have seen C without recording that fact and that it was unlikely that D would have found a lump without referring C to the breast clinic. The appeal was therefore based on the argument that the decision of HHJ Gosnell (Leeds CC) was unjust, since the judge made findings of fact which: (a) were inconsistent, perverse and illogical; (b) failed to take into account material parts of the C's evidence; and, (c) failed to give any or any adequate reasons for rejecting D's evidence.

In rejecting the appeal, the CA explained that the role of the Court of Appeal in appeals on the facts was set out in the judgment of Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 [2003] and approved by the House of Lords in Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, paragraph 46 per Lord Mance. The court stated that, in appeals such as the instant appeal, which turn wholly on oral evidence at trial, 'an appellate court should be slow to interfere with findings of fact and will not do so unless satisfied that they were plainly wrong'.

The CA concluded that: (a) judges are daily confronted with the unexceptional possibility, and often the likelihood, that the proper course was to accept part and to reject part of the same witness's evidence, and that this was not illogical or inconsistent; (b) a trial judge is not obliged to refer in his judgment to every part of the evidence of every point raised by counsel in closing submissions (applying In the Matter of L, R, MH and C [2011] EWCA Civ 525), so long as he sets out sufficient for the reader to follow his line of reasoning and his thought process as he explains his findings of fact based on the evidence; and, (c) the judge did give detailed reasons as to why he preferred C's evidence over D's even though D's evidence was truthful.