Denise Less and Another v Sarah Hussain
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Cotter Q.C. |
| Judgment Date | 06 December 2012 |
| Neutral Citation | [2012] EWHC 3513 (QB) |
| Court | Queen's Bench Division |
| Date | 06 December 2012 |
| Docket Number | Case No HQ11X04220 |
[2012] EWHC 3513 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Cotter Q.C.
Case No HQ11X04220
Hearing dates: 26 th, 27 th 28 th November and 6 th December 2012
Approved Judgment
The Claimants claim damages for physical and psychiatric injury and consequential loss arising out of Ms Less' conception of their son, Luis, who was born without a heartbeat at Whipp's Cross Hospital ("the hospital") on 6 th May 2007.
The Defendant, Mrs Hussain, was a consultant gynaecologist with a private practice. On 12 th November 2005, Ms Less went to see her privately for advice ("the consultation"). At the time of the consultation Ms Less and Mr. Carter were partners.
The reason for seeking advice was that Ms Less had a complicated past medical and obstetric history. She had a thromboembolic condition which had led to DVTs (the last suffered in September 2005) and, in a previous pregnancy, a pulmonary embolism ("PE"). She also had multiple fibroids including one very large fibroid. She and Mr. Carter both had children from previous relationships but they wished to have a child together. They realized that a pregnancy might not be straightforward and they wanted to get advice before deciding whether or not to try.
Mr Less had the understanding following the consultation that the fibroid did not have to be removed and was not a problem and also that provided she sought early antenatal care for management of her thromboembolic condition should she fall pregnant, there was no reason not to conceive and they could "go ahead". It is her case that the Mrs Hussian was negligent and in breach of contract as regards the advice given. It was a central feature of the defence that Ms Less was told by Mrs Hussain to arrange a further appointment following a scan, however she never did so, and as a result the advice was not complete.
Eight months after the consultation in July 2006, Ms Less had her coil removed and Luis was conceived in November 2006. Unfortunately, the pregnancy was extremely painful and very difficult up to around 22 weeks, because of a condition associated with the fibroids called Red Degeneration. Ms Less had to be admitted to hospital twice because of this condition.
On or about 4 th May 2007 Ms Less had realised that she could not feel foetal movement and went to the hospital; Mr. Carter went with her. They were together when a heartbeat could not be seen on a trace and death in utero was diagnosed. Ms Less was given tablets to induce labour and she was allowed to remain in hospital, Mr. Carter staying with her. On 6 th May 2007, Luis was delivered stillborn. Both his parents held him. Then he was taken away. Photographs of him were brought wearing a dress because, despite his sex, that was all that could be found. Ms Less' account of these experiences was set out in a moving letter of complaint to the hospital
At post-mortem it was found that Luis was very small indeed (below the 9 th centile) weighing only 645g and his growth rate asymmetric as well as restricted. The cause of this was determined to be hypercoiling of the umbilical cord. It is agreed that the cause of Luis' death was unrelated to the fibroids or history of DVT.
Shortly after Luis' birth, Ms Less and Mr. Carter separated and their relationship ended. They have since come back together as a couple but they no longer live together. Mr Less suffered prolonged psychiatric symptoms and Dr. Denman, a consultant psychiatrist in Psychotherapy diagnosed a bereavement reaction that met the criteria for an adjustment disorder. She required counselling, and as at March 2012 her recovery was said to have stalled. Dr Bradley a consultant psychiatrist instructed on behalf of the Defendant did not think that Ms Less' symptoms still satisfied the ICD definition some five years after the event. However, he was of the view that there was a prolonged grief reaction and it was not in dispute that Ms Less suffered a psychiatric reaction to the loss of her son.
There was more of a dispute as regards Mr Carter. Again Dr Denman prepared reports and gave the opinion that he had a bereavement reaction that was sufficiently severe to amount to a formal diagnosis of a mild adjustment reaction. Dr Bradley found it difficult to make a firm diagnosis that would satisfy ICD10 and DSMIV criteria. He stated that unhappiness is part of the human condition and does not constitute a psychiatric condition.
Damages are claimed for psychiatric injury, for consequential financial losses and also by way of a "Rees Award"( Rees v. Darlington [2004] 1 AC 309 to mark the parents' loss of autonomy.
The respective cases
It is the Claimant's case that the advice that Ms Hussain actually gave to Ms Less about the risks of pregnancy and also the advice she would have given had there been any follow up appointment fell below a reasonable standard. Indeed it is suggested that no matter how many consultations there had been, the Defendant would never have given advice that met a reasonable standard.
Further if Ms Less had received proper and adequate advice she would not have fallen pregnant.
It is conceded on behalf of the Defendant that, in light of the agreement of the gynaecology experts that there should have been a 'failsafe' mechanism to secure the attendance of Ms Less at a second appointment, Mrs Hussain was in breach of duty in failing to write to Ms Less to remind her of the need to attend a second appointment in order that she could complete her advice on the risks to Ms Less of pregnancy from a thromboembolism and fibroids. Otherwise breach of duty was denied. Further, it was Mrs Hussain's case that where the death of the Claimants' baby was for reasons unconnected with any breach of duty she could not be liable for the death or the psychological consequences for either parent. Put another way the death of Luis and his mother's consequent psychiatric injury were outwith the scope of the duty owed by Mrs Hussain.
As regards causation Me De Bono set out within his skeleton argument that
Causation – the Claimant would probably have become pregnant anyway
The Defendant contends that it was 'safe' for Ms Less to become pregnant and that she would have done so in any event because, understandably, she wanted to become pregnant by Mr Carter. It follows that the claim fails on causation.
The right to a "Rees" award and Mr Carter's right to recover any damages were also denied.
Evidence
I heard oral evidence from the Claimants, Mr Maguire (who performed a scan) and the Defendant. The evidence of Ms Malik ( a nurse) was agreed.
It has never been any stage been suggested that the Claimants were other than honest witnesses, doing their best to recall what was an extremely difficult and stressful period for anyone to endure. However that does not mean that their recollections or retrospective assessments were accepted as accurate by the Defendant. Mr De Bono stated that as with many other litigants they are likely to have spent much time discussing what happened and what might have been. There is always a danger that this can render inaccurate what an individual believes to be truthful and honest reflections.
I also had the benefit of reports from two gynaecology experts Mr Wood, who compiled a report having been instructed on behalf of the Claimants and Mr Kenney who had received instructions on behalf of the Defendant. Having prepared a joint statement both gave oral evidence. Finally I had the medical reports from two psychiatrists Dr Denman and Mr Bartlett.
Findings of fact .
Having carefully considered all the evidence I find that the relevant chronology was as now follows.
In 1988, 1992 and 2005 Ms Less had deep vein thromboses ( "DVT"). From 2005 onwards she was on Warfarin. In 1992 she had a normal delivery of a boy (Luke) weighing 5lbs and 9oz.
In December 1992 whilst pregnant for a second time she had a pulmonary embolism. She was diagnosed using a ventilation /perfusion scan and was treated with anti-coagulants. Happily in 1993 she had a normal delivery at 39 weeks of a girl (Latifa) weighing 6lbs 2oz. She stated in oral evidence that during the pregnancy she had sub-cutaneous injections (I presume of heparin) and that "they said so long as I took mediation I would be O.K."
In November 2004 Ms Less saw Ms Hargreaves, a Consultant Obstetrician and Gynaecologist about her fibroids. Abdominal examination revealed a pelvic mass of about 18 weeks size; a fibroid uterus and a scan was performed. The letter of 25 th November 2004 made no reference to any future pregnancy related risks and concluded
"As she has no complaints I have reassured her and advised that we take no further action. She knows that she can contact me if she thinks that there is any change"
Ms Lees was then aged 38. She stated in cross-examination that she was in a relationship with Mr Carter at this time, but that she had not considered having a child. She said and I accept correctly, that there was no conversation about pregnancy. Specifically, Ms Hargreaves did not advise her that she should never become pregnant. Indeed had she done so it would have been a startling omission from the letter.
On 16 th September 2005 Ms Less was diagnosed with a third deep vein thrombosis in her left leg and was treated with Warfarin. On 1 st November 2005, she was referred to a vascular surgeon, Mr. Crinnion, in light of the DVT. She saw Mr. Crinnion on 3 rd November 2005 and at that consultation explained that she...
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...Glasgow Corporation 1976 SC 32 at 52 per Lord Justice‑Clerk (Wheatley); McFarlane v Tayside Health Board 2000 SC (HL) 1; Less v Hussain [2013] Med LR 383]. [102] On what I have heard, the defenders' argument is the better one: but I do not need to do anything about it since the pursuer's av......
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