'C' (by his Father and Litigation Friend 'F') v North Cumbria University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 23 January 2014 |
| Neutral Citation | [2014] EWHC 61 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X01975 |
| Date | 23 January 2014 |
[2014] EWHC 61 (QB)
Mr Justice Green
Case No: HQ11X01975
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Spencer QC & Jane Tracy Forster (instructed by Burnetts) for the Claimant
Stephen Miller QC (instructed by Ward Hadaway) for the Defendant
Hearing dates: 11 th December 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. Introduction
This case concerns a narrow question: Was it negligent for a midwife to administer a second dose of a drug that induces labour?
In this case I have made an order to protect the anonymity of the Claimant from press related coverage. An opportunity was afforded to the press to make representations but no objections were received opposing the making of the anonymity order. For the purpose of this judgment I refer to the father as "F" and to the mother as "M". This claim is brought by F on behalf of his child who is the Claimant in this case and who I refer to as "C" throughout.
The case arises in tragic circumstances. M was 41 years old and in good health when she was admitted to hospital for the induction of labour for delivery of her second child on 9 th December 2002. Both this and her previous pregnancy were conceived through the use of IVF. The pregnancy with her new child had progressed well and to term. At 41 weeks it was decided to induce labour. She was admitted to hospital on 9 th December 2002 and a first dose of 3mg Prostin was administered. This is a drug which stimulates the natural contractions in the uterus. I describe below the composition and therapeutic effects of this drug. After 7 1/2 hours the midwife administered a second 3mg dose. About 5 hours later M was experiencing substantial discomfort and in a very short time period her cervical dilation progressed from being 2cm to 9cm. M was now extremely distressed and in pain. She was urgently transferred to theatre and her baby was delivered by forceps shortly thereafter. M's uterus had ruptured. She suffered from a cardiac arrest. Attempts were made to resuscitate her but she ultimately died on 14 th December 2002. C was asphyxiated at birth. He was described as white and floppy and not breathing with a heart rate of 60bpm. His Apgar scores were 1 at one minute, 5 at four and five minutes, and 7 at ten minutes. He was resuscitated and his circulation was restored by 3 minutes. Spontaneous breathing was established by 11 minutes. He suffered a hypoxic-ischaemic encephalopathy in the neo-natal period and he has hypoxic cerebral injury typical of a period of acute profound asphyxia commencing immediately prior to birth. It is common ground, and agreed between the relevant experts, that the hypoxia was caused by the uterine rupture of M and that this probably occurred at about 1.38am. The Claimant now has microcephaly and dystonic athetoid cerebral palsy.
For the father what should have been the joy of a new birth turned into an unmitigated catastrophe.
The following is now common ground. First, that M's death was due to negligent post-natal care. Secondly, that C's condition is due to the administration of the second dose of Prostin. The Defendant NHS Trust has admitted liability for the death of M. It contests however the claim for damages which alleges negligence in the administration of the second dose of Prostin.
The father brings this claim on behalf of C. He attended the trial and endured a minute forensic analysis of the events surrounding the administration of the second dose of the drug and the subsequent calamitous events leading to the death of his wife and the birth of his child. To have sat through this trial plainly cannot have been easy. It goes without saying that he has the deepest sympathy of the Court.
The issue for me is a narrow one: It is whether in all the circumstances the administration of 3mg of Prostin at 19.00hrs on 9 th December 2002 was below the standard of care that can reasonably be expected of a midwife. This involves examining, closely, the precise events preceding and to some degree following the administration of that second dose and placing them in context of such matters as: the guidelines produced for the use of the drug by the manufacturer and other relevant guidelines; the existence of any contra indications at the time militating against the administration of the second dose; the level of risk involved which includes a consideration of whether the midwife in question should have sought the advice and assistance of the consultant Registrar and, if so, what that "hypothetical" advice might have been; and the extent to which the midwife addressed herself to all the relevant considerations.
I address these issues in the following order: first, the background facts (Section B); secondly, the law (Section C); thirdly, the evidence relating to the alleged breach (Section D); fourthly, analysis of the evidence (Section E); and fifthly, conclusion and outcome (Section F).
B. Background facts
In this section I set out the background facts to the case. I deal with the very specific circumstances relevant to the issue arising for my determination in the section concerning breach of duty.
F brings this action on behalf of C who was born on 10 th December 2002. C has a sister born in 1998. The first birth caused no problem. M was induced at 42 weeks and had a vaginal delivery, i.e. not through caesarean section. Both M and baby were fit and well.
M attended hospital on 6 th December 2002 and was told that her cervix was 1cm dilated which was not unusual after a first baby. However this did not mean that she was in labour and she was told that unless labour had started spontaneously she would be induced the following Monday. On 9 th December 2002 both M and F went to the hospital. M was found a hospital bed and told that induction would commence shortly.
At 10.00am she was assessed and everything was fine. The Clinical Notes say "Generally quite well" and "Baby active". The baby was cephalic (i.e. presenting normally). A Cardiotocograph or "CTG" was applied at 10.12am. A CTG is a machine which monitors labour and in particular the fetal heart rate and the level of uterine contractions. It appears as two graphs which track the progression of the heart rate and uterine activity over time by the recording of a trace upon the graph. The CTG traces for the relevant period were in evidence during the trial.
I will need to examine much more closely the precise events as they unfolded and as they are recorded on the CTG and in the Clinical Notes. For the purpose of setting out the background facts it is sufficient to record that a first dose of 3mg of Prostin was administered at 11.30am. It was administered in the form of a tablet or pessary inserted into the vagina.
Between 11.30am and 7.00pm M was assessed by a series of three different midwives who were on duty in the ward and each gave evidence during the trial. Each entered their observations as to the condition of M and the baby onto the History Sheet which requires that Clinical Notes be entered onto the sheet together with the date and exact time of the entry. Each entry must be signed by the midwife in question.
At 7.00pm the midwife attending to M (Midwife Bragg) formed the view that she was not in established labour, that a sufficient amount of time had elapsed since the administration of the first dose of Prostin, and that there were no contra-indications militating against the administration of a second dose. She did not consider that anything was untoward and she did not therefore consider that it was necessary to seek the advice of the Registrar, who was close by in the ward, prior to the administration of the second dose. Accordingly a second 3mg dose of Prostin was administered.
At about this time F decided to go home. At approximately 00.45am on 10 th December 2002, early in the morning, he was contacted by the hospital and told that his wife had gone into labour but that there was no urgency. However he returned immediately arriving at approximately 1.15am. He entered the room and discovered that his wife was in extreme pain. In his evidence to the Court he recalls that she was in such extreme pain that even now he finds it difficult to find the right words to describe her condition. His impression was that she was not fully aware of what was going on around her and could not focus upon anything but the pain. Her lips were tight; her eyes were wide open and "wild". He had never seen anyone before, nor has he since, who seemed to be in such pain. She appeared frightened and could barely speak to him. She was gasping and spluttering. He rang the bell for assistance and within moments a midwife arrived and checked the CTG. She conducted a vaginal examination and said that M's cervix was 9cm dilated. As M started to push the waters broke and a large quantity of fluid and faecal liquor was discharged.
Within moments a number of doctors and midwives were in the room and M was transferred to theatre. Shortly thereafter C was delivered by forceps. F's evidence as to what happened next was in the following terms:
"When I walked into the theatre it looked like a scene from a Spielberg movie. [M] was still in stirrups at this point. She was as pale as I had ever seen her. She looked grey and worn out. There was blood everywhere. The bottom of the blanket, which was at the foot of the bed, which had been green, was completely black. It was completely sodden with blood. [M] was then taken...
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