ES v Chesterfield and North Derbyshire NHS Trust

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date25 July 2003
Neutral Citation[2003] EWCA Civ 1284
Date25 July 2003
Docket NumberB1/2003/0392

[2003] EWCA Civ 1284






Royal Courts of Justice

The Strand

London, WC2A 2LL


Lord Justice Kennedy

Lord Justice Brooke

Mr Justice Holman


E S (by Her Mother and Litigation Friend D S)
Chesterfield and North Derbyshire Royal Hospital Nhs Trust

MR SIMON WHEATLEY (instructed by Edwards Geldard) appeared on behalf of the Appellant

MR ANDREW HOCKTON (instructed by Eversheds) appeared on behalf of the Respondent

Friday, 25 July 2003


This is an appeal by the claimant from so much of an order of Master Ungley at a case management conference on 12 February 2003 as directed that the evidence in this clinical negligence action should be limited to a report from not more than one expert in the field of obstetrics on each side. Master Ungley granted permission to appeal and directed that the appeal should be referred to this court on the grounds that there was a point of practice and procedure of significant importance. He commented that the application by the claimant to instruct two experts in obstetrics on the grounds that the professional whose conduct was in question was always a practitioner in the field was common to every clinical negligence case.


The particulars of claim show that the claimant was born at the Chesterfield Royal Hospital on the morning of 24 November 1994. She suffers from cerebral palsy, which resulted from a short period of severe acute inter partum hypoxia at or immediately prior to delivery at 6.44am. She was a healthy fetus who had thrived successfully in utero, and it is said that if she had been delivered at any time up to 6.10am she would have been preserved intact. Although criticisms are made of the standard of care given by the midwife on duty, the main complaints in these proceedings relate to the activities of an obstetric registrar, Dr Downes, who is now a consultant, and the advice given to him at the time by a consultant obstetrician at the hospital, Mr Krishnamurthy.


The claimant's allegations of negligence are founded on a report by Mr John Hare, who is a consultant obstetrician. Her advisers have also obtained a report from another consultant obstetrician, Dr Peter Buchan, and at the case management conference they sought a direction that they should be permitted to call their two experts, but that the defendants should be limited to one such expert on the grounds that Mr Downes and Mr Krishnamurthy, who were both now consultant obstetricians, would be giving evidence on the defendants' side. After setting out briefly the nature of the claim and the issue he had to decide, Master Ungley stated that he had been told that to ensure equality of arms he should permit the claimant to call a second expert. He commented:

"The application fails to take into account the difference between witnesses of fact and expert witnesses. Although it is inevitable that a witness who happens to be a professional will give evidence of his actions based upon his or her professional experience and expertise, the vital question of whether those decisions fell short of the required standard is addressed by the expert witnesses.

It was also mentioned that the claimant has already instructed a second obstetric expert, but that has no bearing on whether he should be permitted to give evidence.

The application is therefore refused."


In order to resolve this appeal it is necessary to look at the issues in the case more closely. The claimant's mother's labour progressed normally until shortly before delivery when there appeared to be an element of obstruction. Dr Downes was called, and he attempted to effect delivery with the use of various instruments. He first tried to use a device called a ventouse, where a rubber cap is applied to the fetal head and a vacuum is created by a suction air pump, but the cap came off on each occasion as he tried to draw the fetus down.


He then tried to use forceps to effect delivery. This was also ineffective, but the attempt appears to have caused the oxygen supply to the fetus to be significantly interrupted. It is asserted that immediately after the use of forceps the fetal heart rate dropped from its normal level of 120–140 beats per minute to 60 beats per minute. The reason for the non-delivery was that the fetus was in the less favourable occipito posterior position rather than the more usual anterior position. In other words, the fetal head was facing backwards.


After these unsuccessful attempts to effect delivery, Dr Downes contacted Mr Krishnamurthy as the consultant on call, who endorsed the course of action Dr Downes then took. The claimant's mother was transferred to the operating theatre, where the claimant was delivered "easily" using forceps. About 50 minutes elapsed from the time of the attempt at instrumental delivery which failed, and the eventual delivery of the claimant. By the time the claimant was actually delivered she was in a very poor condition and had suffered damage to her brain. She now suffers from four limb cerebral palsy of the extra pyramidal type with atheto-choreic movements, including the face, but with preservation of intellect. Her claim is valued at £1.5 million on the assumption that she will be able to prove all the negligence on which she relies. Issues of causation will depend to a considerable extent on the findings as to liability at different times in the pre-birth process.


Three main complaints are made about the quality of the care the claimant received. The first is that no appropriate allowance was made for the possibility that she was in the occipito posterior position, which is an abnormal presentation that can lead to difficulties. The second is that when it was clear that there was some apparent obstruction, the claimant's mother was not transferred to the operating theatre, so that the most appropriate method of delivery could be adopted: if there were any difficulties, the claimant could be swiftly delivered without the inevitable delay due to transfer to the theatre. The third is that Dr Downes persisted with the attempts at instrumental delivery in the delivery room. If problems arose there be an inevitable delay in effecting delivery, and Dr Downes thereafter still proceeded to an instrumental delivery (rather than an emergency Caesarean section) despite the evidence of fetal distress.


It is evident from the defence and from the witness statements of Dr Downes and Mr Krishnamurthy that it is accepted that the former wrongly concluded that the baby was in the occipito anterior position. It is also evident that he takes issue with the midwife's note that there was a prolonged fetal bradycardia at 5.55am, because he did not view the fetal heart rate pattern at that time as anything other than normal. There will be an issue of fact surrounding the measurements of the fetal heart rate and whether the fetal monitoring record truly represented the correct time of the matters shown on it: the claimant has been permitted to rely on the evidence of an expert in that technology. But once the facts are established, the main issues on liability will turn on the question whether the hospital's care of the claimant fell below the standard reasonably to be expected in relation to the matters identified in paragraph 7 above.


The claimant's case on this appeal is that she has no prospect of success unless the evidence she is allowed to call at the trial satisfies the judge on the Bolam text that aspects of her care in the immediate pre-birth period fell below the appropriate standard. The central issue, as I have said, is whether the doctors' clinical judgments, and in particular those made by Dr Downes, can be impugned.


The claimant is in receipt of Legal Service Commission funding, and her certificate was enlarged to enable instructions to be given to Dr Peter Buchan as well as to Mr Hare. Mr Wheatley, who appears for the claimant, submits that there is a significant risk that the view of a single practitioner on the range of decisions which represent a spectrum of reasonably acceptable clinical choices may not be wholly representative of the voice of the profession as a whole, however hard that practitioner may try to encompass all such views. He would be confronted with the evidence of three consultant obstetricians: Dr Downes himself, Mr Krishnamurthy and an independent expert. Even though the first two of these witnesses will be called to give evidence on fact, they are both consultant obstetricians and it is inevitable that they will be asked at the trial questions relating to the reasons why they acted as they did. It is equally inevitable that they will tend to answer that what they did was consistent with an appropriate standard of care and to explain why, perhaps with reference to their own personal experience.


We were invited to determine this appeal by reference to the overriding objective in CPR 1.1. We should ask ourselves, it was suggested, "What evidence ought to be permitted or refused in order to deal with this case justly?"


Part 35 of the Civil Procedure Rules is concerned with experts and assessors. The following rules are particularly relevant in the present context:

"35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

35.4(1) No party may call an expert or put in evidence an expert's report without the court's permission.

(4) The court may limit the amount of the expert's fees and expenses that the...

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    ...D1 . . . . . . . . . . 76Em vThe Queen [2007]HCA 46 . . . . . . . .157, 159ES v Chesterfield North Derbyshire RoyalHospital NHS Trust [2003] EWCA Civ 1284. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142Esso Australia Resources Ltd v Plowman (1995)183 CLR10, HCA. ......
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