CDE v Surrey & Sussex Healthcare Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 18 October 2022 |
| Neutral Citation | [2022] EWHC 2590 (KB) |
| Docket Number | QB-2021-000005 |
| Court | King's Bench Division |
[2022] EWHC 2590 (KB)
Mr Justice Ritchie
QB-2021-000005
IN THE HIGH COURT OF JUSTICE
KINGS'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
E.A. Gumbel KC (instructed by Fieldfisher Solicitors) for the Claimant
Neil Sheldon KC (instructed by Capsticks Solicitors) for the Defendant
Hearing dates: 3–10 October 2022
APPROVED JUDGMENT
The Parties
The Claimant is a child and is represented by her mother as her litigation friend.
The Defendant is an NHS Healthcare Trust.
Bundles
For the trial I had the following bundles: — a trial bundle, a bundle of authorities from both parties, a bundle of the Claimants' mother's medical records, an application bundle and five other bundles of medical notes relating to the Claimant herself.
During the course of the trial a core bundle of medical notes was put together which included pages 14, 53, 54, 80, 81, 82, 83, 84, 85, 86, 87, 254, 278.1, 278.2 and 279 of the Claimant's mother's medical records. With the exception of page A14 in the Claimant's records no other records were referred to during the trial. I was also provided with a transcript of the evidence for each day, written opening submissions and written closing submissions from the Claimant and the Defendant.
I was provided with the original Antenatal Notes Book with a pink cover which I handed back at the end of the hearing.
Terminology
I will use the following abbreviations in this judgement:
6.1 CP: cerebral palsy.
6.2 PHI: acute profound hypoxic ischemia.
6.3 PH: polyhydramnios.
6.4 FHR: foetal heart rate.
6.5 MRI: magnetic resonance scan.
6.6 BPM: beats per minute.
6.7 ADU: antenatal day unit.
6.8 ANW: antenatal ward.
6.9 LW: labour ward or delivery suite.
6.10 C-section: caesarean section.
6.11 CTG: cardio tachograph.
6.12 M: the Claimant's mother.
6.13 Dr. E.: Doctor Emmanuel Ekanem.
6.14 TPTL: threatened pre-term labour.
6.15 RCA: root cause analysis.
Background
This was the trial of liability relating to a tragic medical event which occurred on the 4th of June of 2018. That was the date on which the Claimant was born by caesarean section. She was in a very poor state having suffered PHI before, during and after her birth.
Dr. Mike Pike (a paediatric neurologist) has advised that the Claimant suffers from quadriplegic cerebral palsy with severe global developmental delay. She suffers seizures and is fed by gastronomy tube. She is categorised as level 5 on the Gross Motor Function Classification System, which is the most severe. She has oromotor and airway protection difficulties and is unable to self feed. She suffers microcephaly.
By the close of the trial the Claimant asserted that the Defendant should have carried out the emergency c-section between four and seven minutes earlier than it actually did.
The Defendant asserted that any breaches that are proven by the Claimant, some of which were admitted by the end of the trial, did not cause any or any additional damage and asserted that the claim fails for lack of factual causation.
The Issues
Although the issues on the pleaded cases were broad and varied, by the time of closing submissions the issues were as follows:
11.1 Did the Defendant fail to provide a reasonable standard of care to the Claimant by failing to transfer the Claimant's mother to the LW 40 to 50 minutes earlier than in fact occurred?
11.2 Did that failure lead to delay in the performance of the emergency c-section which the Defendant carried out to deliver the Claimant at 1808?
11.3 Did any such delay increase the PHI suffered by the Claimant and so cause the cerebral palsy or materially contribute to it?
The applications
By a notice of application dated the 20th of September 2022 the Claimant sought to amend her particulars of claim and offered to pay the costs. I granted the application for the reasons set out in the transcript.
By a notice of application dated the 26th of September 2022 the Claimant sought an anonymity order. This was unopposed and no press were present at the hearing which was in open Court and made no representation. I granted the application and as a result this judgment is anonymised in relation to the Claimant's and the Claimant's parents' names. It is for that reason that I refer to the Claimant's mother as “M”.
By an application dated 26 September 2022 the Defendant applied to rely on a further witness statement from Dr. E. and to reamend the defence and offered to pay the costs thereof. I granted those applications as well.
Pleadings and chronology of the action
In early 2021 the Claimant issued proceedings alleging that as a result of a uterine bleed suffered by her mother she was born with severe cerebral palsy caused by PHI before and around the time of her birth. It was alleged that the injury was caused or materially contributed to by the Defendant's negligence. Specifically that the Defendant failed to review the Claimant's mother who should have been transferred from the ANW to the LW immediately after the review which should have taken place between 1710 and 1723 hours on the 4th of June 2018.
It was asserted that a decision would have been made for the Claimant to be delivered by a category one c-section due to her mother's excessive pain and the probable CTG trace. It was pleaded that delivery should have occurred within 30 minutes of the decision for a c-section and that the delivery would have occurred by 1753 hours, the decision having been made at 1723. It was asserted that had delivery occurred by that time the Claimant would have avoided all injury.
In relation to causation the Claimant asserted that Miss Nicks, a consultant on the LW, heard that the Claimant was suffering bradycardia when the CTG machine was eventually connected to M. It was asserted that any delay in carrying out the c-section materially contributed to the cerebral palsy even if medical science cannot say by how much the delay contributed to the functional disability of the Claimant if there was negligent and non-negligent PHI.
In the original defence the Defendant admitted duty and denied breach. It was pleaded that on the ADU Dr. E. examined the Claimant after a CTG had been running for a long time and decided that M should be “kept in”, which meant admitted to the ANW. It was expressly pleaded that Dr. E. carried out a second examination at 1650 hours on the 4th of June 2018 and wrote a 7 point plan in M's medical notes which included admission, blood and urine testing, CTG monitoring, referral to the diabetic team and pain monitoring.
Further the Defendant pleaded that at 1710 a bed became available on the ANW and so M was transferred there and arrived at 1720. It was pleaded M reported light headedness and the midwife was concerned and so asked Dr. E. for a further review. It was pleaded that Dr. E. consulted with a consultant called Miss Srivastiva who advised that M should be transferred to the delivery suite and that as a result of that advice the midwife stopped her preparation to apply a CTG to monitor the Claimant's FHR and rang the LW. The midwife was informed that the LW was very busy and that they needed to clean rooms.
It was pleaded that at 1730 the midwife rang the LW again and that M was then transferred to the LW but that this process was slow and took 20 minutes because the transfer from the bed to the wheelchair was difficult.
Then at just after 1750 on the LW a CTG was started and Miss Nicks, the consultant obstetrician on duty, entered the room, did an examination and an ultrasound, found the FHR to be around 50 BPM (bradycardia) and made an immediate decision for an emergency c-section. The bell was pulled at 1755, the surgeon's knife went to the mother's skin at 1805 and the Claimant was delivered at 1808.
It was pleaded that the Defendant carried out a root cause analysis investigation and reported the findings after the incident. In that RCA report the Defendant asserted that the failure to carry out a risk assessment of M and the baby at 1730 was a “missed opportunity” however the Defendant pleaded that no breach had occurred. The Defendant denied that Dr. E. had done anything wrong. The Defendant denied that Midwife Reeves should have carried out a CTG on the ANW because she had been told to transfer the mother to the LW. The Defendant asserted that any CTG at that time would have been normal in any event. The Defendant pleaded in relation to causation that it would have taken time to set up the CTG and then to see a sufficient trace to make any decision. The Defendant denied that before 1750 the CTG would have indicated a need for an emergency c-section.
Overall the Defendant stated that c-section was achievable within 30 minutes of a decision so any CTG trace leading to a decision for c-section after 1723 would not have led to a birth by 1753 as the Claimant asserted.
Further in relation to causation the Defendant admitted that if the Claimant had been born at 1753 she would have avoided permanent brain injury and that also her condition would have been materially better if she had been born between 1753 and 1800 hours. However no admission was made in relation to birth between 1800 hours and 1808 hours.
The defence was dated March 2021. One year and three months later, in June 2022 the Defendant's case was substantially changed. The Defendant deleted that part of the pleading which asserted that Dr. E. had carried out a second examination of M at 1650 hours on the 4th of June 2018. The Defendant pleaded expressly that the note made by Dr. E. at 1650 hours was a rewritten note relating to the earlier examination he had carried out at 1551 hours. The Defendant pleaded in addition that the last two lines of that...
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