CNZ (Suing by her Father and Litigation Friend MNZ) v Royal Bath Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 19 (KB) |
| Docket Number | QB-2019-004029 |
| Court | King's Bench Division |
[2023] EWHC 19 (KB)
Mr Justice Ritchie
QB-2019-004029
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
John de Bono KC (instructed by Boyes Turner LLP) for the Claimant
Jeremy Hyam KC (instructed by Bevan Brittan LLP) for the Defendants
Hearing dates: 5–9th and 13th December 2022
APPROVED JUDGMENT
The Parties
The Claimant is a 26 year old woman who suffers quadriplegic cerebral palsy.
The 1 st Defendant runs the Royal United Hospital Bath. The 2nd Defendant is the Secretary of State for Health who is responsible for the antenatal care provided by the midwives in this case.
Bundles
For the trial the Court was provided with three lever arch files, the first containing the pleadings, orders and witness statements. The second containing the experts' reports. The third containing the medical notes and other relevant documents provided during disclosure. A video of part of the labour was made available.
During the trial the Court was also provided with various diagrams of the human brain and in addition the Claimant's mother's original ante-natal notes files.
Summary
The Claimant was born at about 01.03 hours on Saturday the 3rd of February 1996. She was a twin and her sister was born about 1 hour before her. As a result of acute profound hypoxic ischaemia, which she suffered before and for three minutes after her birth, she has cerebral palsy.
It is the Claimant's case that her mother requested caesarean section (CS) but her requests were refused or delayed. In addition the Claimant asserts that her mother was never offered elective caesarean section (ECS) despite (on her case) such being a reasonable treatment and additionally that when the hospital finally decided to deliver the Claimant by CS the operation was carried out negligently late and therefore the acute profound hypoxic ischaemia which the Claimant was enduring in the last minutes of her time in the womb before birth and for 3 minutes after her birth was not avoided or ameliorated as it should have been.
It is the Defendants' case that in 1996 ECS was not a reasonable treatment option to offer during the antenatal period, so it was not offered, that offering and advising normal vaginal delivery was the correct practice and that the Claimant's mother did not request caesarean section antenatally. In addition the 1 st Defendant asserts there was no negligence during the labour and the parents' requests for CS were granted in a timely way.
Terminology
I will use the following abbreviations and defined terms in this judgment.
• Acute PHI: acute profound hypoxic ischaemia. The cessation of blood flow from the placenta to the fetus (ischaemia) causing a lack of oxygen to the fetal brain (hypoxia). The cause of which may, for example, be cord occlusion or placental abruption.
• AN notes: antenatal notes.
• ARM: artificial rupture of the mother's membranes.
• Cervix: the tissue at the lower end of the uterus which opens before birth due to pressure applied by the presenting part of the fetus or the amniotic sack.
• BPM: beats per minute.
• Cephalic: the position of the fetus when her is head downwards in the uterus.
• CP: cerebral palsy.
• CS: caesarean section, defined in more detail below.
• CTG: cardio tachograph used to measure FHR.
• ECS: an elective caesarean section offered by the treating doctors as a reasonable birth plan.
• CSMR: a caesarean section by maternal request agreed to by the obstetricians.
• EA: epidural anaesthesia provided by sticking a needle into the mother's spine.
• F: the Claimant's father.
• FHR: fetal heart rate.
• GA: general anaesthetic.
• IOL: induction of labour using various relatively non invasive procedures but not involving planned caesarean section leading to normal vaginal delivery.
• IPV: internal podalic version, a procedure by which the obstetrician inserts her hand and wrist into the mother's uterus and turns the baby around into a better birth position. Either EA or GA is generally required to effect this difficult procedure.
• LOC: loss of contact between the baby's heart and the receivers shown as a blank on the CTG trace.
• LW: labour ward or delivery suite.
• M: the Claimant's mother.
• MHR: maternal heart rate.
• MRI: magnetic resonance scan.
• NVD: normal vaginal delivery.
• Syntocinon: a man made chemical used to induce contractions in the mother's uterus similar to Oxytocin (a hormone).
• VE: vaginal examination.
Reading and interpreting a CTG trace:
• Accelerations on the CTG: transient increases in the FHR above the baseline by more than 15 BPM enduring for over 15 seconds.
• Baseline FHR: the FHR shown on the CTG through the middle of the high and lower points.
• Deceleration: dropping of the FHR shown on the CTG trace lasting over 15 seconds and dropping sufficiently down to qualify (>15 BPM reduction from the baseline). Late deceleration — occurring or enduring until after the maternal contraction has ended.
• Variability of FHR baseline: a base line FHR which shows fluctuations seen as peaks and troughs as it progresses through each minute.
Caesarean section: The final term to define is caesarean section. The history of caesarean section is very long and goes back to historic Hindu, Greek and Egyptian texts. The Roman Lex Caesaria decreed that women who were dying or who died during childbirth should have their babies saved by surgical birth. In 1996 caesarean section involved major abdominal surgery with the mother under epidural (spinal) or general anaesthetic.
The Issues
Antenatal issues
Did M request a CSMR during the antenatal meeting with any midwife or Doctor?
Was M offered ECS during the antenatal meetings by any obstetrician?
Did M agree to NVD having properly discussed the risk and benefits of NVD compared with CS with an obstetrician?
If CS was not discussed but should have been discussed, would M have chosen it contrary to the advice given by an obstetrician to choose NVD and only to have CS as a fall back when medically indicated?
Should M have been offered ECS during the antenatal meetings with an obstetrician? Was ECS a reasonable alternative treatment for M who was healthy, carrying twins who were healthy and lying head down and who had given birth twice before by NVD but who did not wish to have an ARM or an EA?
Did the obstetricians seek to persuade M to have NVD instead of CS in a way which breached M's right to make an informed choice between reasonable alternative treatments?
Labour issues
Did the obstetricians fail to grant the parents' choice for a CS during labour after midnight on 3.2.1996?
Did the obstetricians negligently fail to perform a CS quickly enough?
Pleadings and chronology of the action
In April 2018 the Claimant's lawyers sent a draft set of particulars of claim to the first Defendant as a sort of pre-action protocol letter. It was not a normal letter before action. In that document, which was drafted by counsel, the Claimant asserted the following facts: that there was a planned IOL for her birth by NVD. M arrived at Bath hospital on the 2nd of February 1996. It was specifically pleaded that there was a plan to break the M's membranes but in fact they broke spontaneously for twin 1. M then requested epidural anaesthesia but the Doctor's attempts to site the needle failed. She was given Pethidin. The first twin, Bethany, was born in good condition at one minute past midnight on the 3rd of February. It was pleaded that Oxytocin was started and decelerations were shown in the FHR on the CTG trace at 00.05 and 00.09 but these were incorrectly labelled as LOC. It was pleaded that from 00.20 the CTG improved. It was pleaded that at 00.35 after a VE some discussion took place and M stated that she did not want an ARM and wanted CS under GA. The Doctor went for advice from a consultant and returned with a plan for transfer to theatre and then a further assessment to see if an ARM could safely be performed. Transfer to theatre occurred by 00.45 and then the parents requested a CS again. The Doctor telephoned the consultant again who agreed to CS and it was performed with delivery at 01.03. 13 minutes had passed since induction of anaesthesia.
The allegations of negligence focused solely on the Doctor's failure to deliver the Claimant quickly enough. It was asserted that the interval between delivery of twin 1 and twin 2 should not normally be greater than 30 minutes. It was asserted that no reasonable obstetrician would have failed to decide to take M to theatre at 00.20. It was pleaded that there were only two realistic options for delivery at that time namely: ARM or CS both of which required transfer to theatre and therefore no delay was permitted after 00.20. It was pleaded the obstetrician failed to recognise three decelerations on the CTG at 00.05, 00.09 and 00.17 and that these were misinterpreted as LOCs. The doctors failed to attach an oximeter to measure M's pulse which would have disclosed that in theatre the CTG transducer was not recognising the FHR but instead picking up the MHR. It was pleaded that the CS should have been started earlier and the Claimant should have been born by 00.43. In addition it was pleaded that at 00.35 M had requested a CS which should have been agreed at that time. Finally, it was pleaded that 13 minutes from induction of GA at 00.50 to delivery at 01.03 was too long.
The 1st Defendant's letter of response dated June 2019 denied negligence. The 1 st Defendant complained that sending draft particulars of claim was not compliant with the pre-action protocol. It was denied that the interval between delivery of...
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