Claire Manzi v King's College Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Sir Ernest Ryder |
| Judgment Date | 29 August 2018 |
| Neutral Citation | [2018] EWCA Civ 1882 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2016/2386 |
| Date | 29 August 2018 |
[2018] EWCA Civ 1882
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Sales
Case No: B3/2016/2386
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Mr Justice Nicol
HC14C05097
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Skelton QC and Ms Leanne Woods (instructed by Leigh Day Solicitors) for the Appellant
Mr Michael De Navarro QC and Mr Luka Krsljanin (instructed by Kennedys Law LLP) for the Respondent
Hearing date: 6 March 2018
Sir Ernest Ryder, Senior President:
Introduction:
This is an appeal against the order of Nicol J who on 12 May 2016 dismissed a claim for damages for medical negligence and ordered the claimant, Claire Manzi, to pay the costs of the defendant, King's College Hospital NHS Foundation Trust, on the standard basis. The issue in the case related to the amount of placenta that was retained in the claimant's uterus following the birth of her son, ‘H’, on 6 April 2011. The judge held that the placental tissue was not substantial and determined liability in favour of the defendant. Permission to appeal was granted by Gloster LJ on 22 June 2017. At the conclusion of the hearing before this court the appeal was dismissed with reasons to follow.
Factual background:
On 6 April 2011, the claimant gave birth to H who was her second child. A midwife queried whether the placenta which was delivered by controlled cord traction was complete. There was a suspicion that some of the placenta may have been retained. The claimant was seen by Dr Asem Ali, a specialist registrar, who carried out an examination and an ultrasound scan of her uterus. The discharge summary, completed on 7 April 2011, records that a scan identified a 2cm area of possible placenta left in situ.
The claimant was discharged and told that the retained placental tissue should pass spontaneously. For approximately two weeks she was at home under the care of district nurses. Towards the end of that two-week period she experienced pain at such a level that she was admitted to hospital. In hospital an ultrasound scan was performed by Ms Claire Robinson, a sonographer, who recorded “? retained placenta… measuring 7.0 x 2.2 x 4.4cm”. On 21 April 2011 the claimant had placental tissue removed under a general anaesthetic, following which she suffered a haemorrhage.
The claimant alleged that Dr Ali negligently failed to see on the ultrasound scan that a substantial part of the placenta had been retained. As a result, it is said, she suffered pain and, on 21 April 2011, had to have placental tissue removed under a general anaesthetic following which she also suffered a distressing haemorrhage. In consequence, she says, she suffered two periods of ‘adjustment disorder’. The first was for about one year after H's birth. The second was when she was pregnant with her third child and that lasted for about 8 months until the third child was born. There are claims for pain and suffering, lost income, care and other incidental expenses.
The defendant accepts that a small piece of placenta may have been retained after H's birth, but says that it was not substantial. What was removed on 21 April was a small piece of placental tissue together with blood which had clotted and accreted around it. Consequently, the defendant says, there was no negligence by Dr Ali. Alternatively, if that is wrong, and Dr Ali should have identified that a substantial piece of placenta remained in the claimant's uterus, it is not accepted that the claimant would have agreed to undergo another operation to have it removed so soon after she had given birth when there was the possibility that even a substantial piece of retained placenta would have passed without medical intervention. The length of time that the claimant suffered from an adjustment disorder was disputed as was the quantification of the other items of loss. The claim was issued on 5 December 2014 and the trial was heard over four days in April 2016.
The judge's decision:
The parties agreed before the judge that the critical issue of fact determining liability was whether the piece of placenta that was retained after the claimant gave birth was substantial or small i.e. about 7cm or about 2 cm in length.
The judge heard and read extensive oral and written evidence on the question. He had witness statements from the claimant, Dr Ali and Ms Robinson. There were expert reports from two consultant obstetricians and gynaecologists, Professor Edward Shaxted for the claimant and Dr Michael Maresh for the defendant. The experts also produced a joint statement which was admitted in evidence. All five witnesses gave oral evidence.
The judge's consideration of the factual evidence is set out in significant detail in his first judgment at [4] to [45]. For the present appeal, the following evidence which was before the court is the most important:
i) The evidence of Dr Ali. Dr Ali said in his witness statement that he visually examined the placenta and it seemed to be complete. He said that an ultrasound scan is of limited help immediately after birth as blood clots cannot be distinguished from retained products, but he did a scan anyway for training purposes. In oral evidence, Dr Ali agreed that he ought to have recorded the result of the scan, but he didn't. He had very little recollection and was entirely reliant on his records.
ii) The claimant's discharge summary, which was apparently not written by Dr Ali said of the placenta: “ Condition: Other — friable broke in pieces at delivery, completeness: Incomplete – scan identified a 2 cm area of possible placenta left in situation”.
iii) The evidence of Ms Robinson. Her report from the ultrasound scan taken on 20 April 2011 recorded that: “ there is an echogenic area of ? retained placenta seen within the endometrial cavity measuring 7.0 x 2.2 x 4.4cm”. Ms Robinson explained in oral evidence that the question mark meant that she thought the mass was likely to be a piece of placenta but she could not be 100% sure.
iv) The hospital clinical notes of Dr Hooper dated 21 April 2011. Dr Hooper saw the claimant after the subsequent operation to remove the placenta. The medical records made by DR Hooper state: “ explained removed products with forceps approximately 8cm”. The defendant did not rely upon a witness statement from Dr Hooper with the consequence that she was not called to give oral evidence.
v) The evidence of the claimant both in her witness statement and orally. The claimant said in her witness statement that the doctor who spoke to her after the operation said the placenta was a lot larger than expected. In oral evidence she said that the doctor had said the piece of placenta that was removed measured 8cm.
vi) The histopathology report dated 5 May 2011. The report of the sample of tissue removed in the operation recorded that “ sections show blood clot and partly necrotic placental tissue. Retained products of conception are confirmed”.
The judge heard expert evidence regarding the size of the piece of retained placenta as follows:
i) The experts were agreed that if a substantial piece of placenta was retained in the uterus after birth then it would tend to inhibit the uterus from fully contracting, which would lead to pain and prevent the blood vessels to which the placenta was attached from fully healing and so lead to bleeding. Professor Shaxted thought that these were not invariable consequences, and Dr Maresh agreed that the relationship between blood loss and size of a retained piece of placenta was a loose one.
ii) One indicator of blood loss is a decline in the level of haemoglobin. There was no decrease in haemoglobin levels between 22 March 2011 and 20 April which tended to suggest that the claimant had not suffered any major loss of blood between those dates.
iii) The experts were agreed that if a substantial piece of placenta was present when Ms Robinson conducted her ultrasound scan on 20 April 2011 it must also have been present on 6 April and a reasonably competent doctor in the position of Dr Ali should have seen it on the scan which was undertaken at the time.
iv) Professor Shaxted thought the operation note pointed towards the claimant having retained a substantial piece of placenta because the surgeon had grasped the object with sponge-holding forceps. Dr Maresh considered that sponge-holding forceps could have been used to remove a mass consisting of a small amount of placenta together with a surrounding blood clot which had had time to become organised and fibrous.
v) Professor Shaxted agreed that a blood clot could increase in size over time and could adhere to an object such as a small piece of placenta. He thought that about 80cc of blood would be required for a blood clot of 5x2x4 = 40cc and he agreed that that there could have been this level of bleeding consistent with the claimant's reported haemoglobin results.
vi) Professor Shaxted thought it significant that the midwife had thought a piece of the placenta was missing on the basis that a missing piece of 2cm would be unlikely to have been detected. Dr Maresh disagreed on the basis that the midwife would have been able to spot a missing piece of about 2cm.
vii) Dr Maresh considered that Dr Hooper's note was wrong or inaccurate, i.e. that she had told the claimant that about 8 cm of products were removed in the operation.
viii) The experts agreed that it was not possible to tell from the histological report what the proportion of blood clot as opposed to placental tissue was, only that both were present.
It is a feature of the care with which the judge set out the detail of everything that was relevant to the issue in this case that these highlights can be taken from his judgment. The judge concluded that he was not...
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