Debra Freeman (Administratrix of the estate of the late Callum Paul Best) v Pennine Acute Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Tindal |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWHC 3378 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004069 |
[2021] EWHC 3378 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Tindal
(sitting as a Judge of the High Court)
Case No: QB-2019-004069
John de Bono QC (instructed by Simpson Millar LLP) for the Claimant
Charles Feeny (instructed by Weightmans LLP) for the Defendant
Hearing dates: 3 December 2021
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.
HIS HONOUR JUDGE Tindal
Introduction
Callum Best was born on 27 June 2002. Just before his birth he suffered a severe brain injury from being deprived of oxygen because his placenta became detached from the wall of the uterus of his mum, the Claimant (a ‘placental abruption’). Both Callum and his mum were very ill after the birth. She suffered a series of heart attacks and remains on medication to this day. Callum developed a number of disabilities including Cerebral Palsy, Microcephaly, Type I Diabetes, Epilepsy, severe learning difficulties, speech difficulties, was blind and was fed by a tube. So, Callum was a severely disabled little boy who required 24-hour care from his devoted parents, the Claimant and Mr Orton (as I shall call him by his current name by deed poll), doubtless with their older children Natalie and Reece. Callum needed a wheelchair and the family moved into an adapted ground floor flat in Rochdale. He had no independent mobility and spent life between his bed and a chair. On Christmas Eve 2014, aged only 12, Callum tragically passed away.
Callum's parents hold the Defendant's hospital in Rochdale responsible for his injury and his incredibly difficult short life. Their pleaded case is that on the morning of his birth, having had an ante-natal appointment at 36 weeks' pregnancy which went well, at about 10.30am when they were out shopping the Claimant suddenly experienced sudden intense abdominal pain. They say Mr Orton rang the maternity unit and told them this but was simply told to take the Claimant home to bed and give her some paracetamol. As a result, they say they went to the Claimant's mother's house but the pain continued to get worse and they went into A&E at the Defendant's hospital at about 12 noon and after a wait were transferred to the Maternity Unit and finally seen at 13.10. After urgent examination and emergency Caesarian-section, Callum was born at 13.59. By then, he had tragically already suffered his severe brain injury.
The Defendant denies that any such phone call was made, of which it has no record. Moreover, it maintains that no reasonable midwife would have given that advice to a woman who was 36 weeks' pregnant and reporting sudden intense abdominal pain because it would be a warning sign of placental abruption – she would have been told to come in immediately. The parties' Midwifery Experts Angela Cook for the Claimant and Lynn Smith for the Defendant agree that it would have been negligent for a midwife, if told the Claimant was in sudden intense abdominal pain, to fail to instruct her to come in immediately, especially as questioning would have elicited she was 36 weeks' pregnant and had a previous placental abruption in 1993. The parties' obstetric experts Mr Duthie for the Claimant and Mr Tuffnell for the Defendant also agree that if there was such a phone call and the Claimant had been told to come in immediately, Callum would probably have been delivered within an hour of attendance: around 11.40 or so. If that had happened, it is accepted on the balance of probabilities that Callum would not have suffered his brain injury.
Not only is medical causation agreed but the value of the claim is also agreed at £500,000. However, for the Claimant and Mr Orton, this is not about money: indeed, the Claimant has not brought a claim herself. They say they simply want justice for Callum. The Defendant in turn expresses sympathy but maintains they were not negligent.
Therefore, this case turns on an issue of fact: whether Mr Orton called the Maternity Unit and told a midwife that the Claimant was in pain (and if so its intensity) and was told simply to take her home for rest and pain relief. It is not disputed if that happened (which is denied), it was negligent and that it caused Callum's injuries.
Since the issue is clear and factual, much of the evidence in the case has been agreed. Two midwives working on the Maternity Unit that day, Ms Mannion and Ms Kovacs who later tended to the Claimant and Callum, gave statements. They maintain there is no record of such a call as it was not the practice on the unit in 2002 to log calls, but that if a call had been received reporting pain, any midwife would ask questions and if a heavily pregnant woman was reporting intense pain, they would have been advised to attend. Ms Ashman at the Defendant also reports there is no record of the Claimant arriving at A&E as it would have been the practice to log pregnant women at Maternity. These witnesses have not needed to come and answer questions.
Likewise, the Midwifery experts have not been called to give oral evidence as they are agreed that it is a factual issue as I have described. Whilst there is a dispute between them, it was a narrow one which did not require their attendance. Ms Cook maintains that it was negligent back in 2002 for the Defendant's hospital not to record telephone calls, whereas Ms Smith for the Defendant suggests whilst that would be negligent in 2020 it was not back in 2002 because working practices have changed. Whilst no-one suggests any failure to log any call (as opposed to the advice given on it) would have made any difference to Callum's outcome, Mr De Bono QC for the Claimant argues that were I to find there was a substandard practice of record-keeping, that is relevant to determining whether there was such a phone call. Mr Feeny for the Defendant says there was no ‘record-keeping breach’ and even if there was, there was no such call.
Whilst the Obstetric experts Mr Duthie and Mr Tuffnell agree about causation, they were required for oral evidence at trial because they disagree about the likely progress of the placental abruption during 27th June 2002. While they agree the course of placental abruptions can vary, Mr Duthie says the severity of the placental abruption recorded at Callum's birth is consistent with the Claimant's account of intense pain at 10.30 as the start of that abruption, whereas Mr Tuffnell considers that whilst some pain at 10.30 is plausible, constant severe pain from 10.30am onwards for 3 1/2 hours until Callum was delivered is implausible as it would have been unlikely for Callum to have survived that long. Mr Feeney therefore contends any pain the Claimant experienced around 10.30 was unlikely to have been severe which supports a finding either that no call was made or that even if it was, the pain was not reported as ‘intense’. Mr De Bono retorts that the Claimant was later recorded that same day by medical staff as having experienced sudden lower abdominal pain that morning.
At the start of trial, I raised with Counsel that the factual issue seemed to be not simply (i) whether there was a phone call but also (ii) whether intense pain (rather than a ‘twinge’) was reported and if so (iii) whether the advice was to go home. I asked if more Midwifery evidence would be needed were I to find Mr Orton simply said the Claimant was ‘in pain’. Both Counsel agreed it was not. Mr De Bono set out his stall that a report of simple ‘pain’ should have prompted questions from the midwife and would have led to advice to attend. However, Mr Feeny was wary of conceding this at that stage.
Therefore, the key witnesses are plainly the Claimant and Mr Orton. Ordinarily they would have been expected to attend Court for detailed cross-examination. However, because of the Claimant's underlying heart condition (which I accept) she is particularly vulnerable to Coronavirus and indeed Mr Orton is highly concerned about inadvertently giving it to her (and is also her carer — in receipt of Care Allowance). Therefore, shortly before trial, the Claimant applied for herself and Mr Orton to give evidence remotely rather than having to travel down to London to attend trial. Indeed, this coincided with Government concerns about the Coronavirus ‘Omicron’ variant, the reinstated requirement to wear masks on public transport and shops and the intensification of the vaccine ‘booster’ initiative (neither the Claimant nor Mr Orton have yet had their ‘boosters’: which he is due to have the day after trial). The Defendant did not strenuously object to the Claimant giving evidence remotely and I agreed that on the papers. However, as it objected to Mr Orton doing so as he does not have an underlying health condition and was the person the Claimant says called and was given the negligent advice, I listed the application the day before trial. Having heard submissions from Mr De Bono and Mr Feeny, I determined under CPR 32.3 that Mr Orton could also give evidence remotely, essentially for three reasons:
Firstly, speaking as a Designated Civil Judge, I was extremely experienced in remote trials both of Fast Track and Multi Track claims during the Pandemic, including cases where credibility and reliability were central issues. I am entirely satisfied that if technology works, it is an entirely appropriate means of hearing evidence under detailed and intensive credibility cross-examination. I also sit in the Crown Court where cross-examination by video link in trials of sexual allegations is almost universal. I also referred to ...
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