Georgina Hazel Wells and Another v University Hospital Southampton NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 07 August 2015 |
| Neutral Citation | [2015] EWHC 2376 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: A21YJ285 |
| Date | 07 August 2015 |
[2015] EWHC 2376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY
The Law Courts
Winchester, Hampshire SO23 9EL
Mr Justice Dingemans
Case No: A21YJ285
Mark Stephen Lomas (instructed by Moore Blatch) for the Claimants
Neil Davy (instructed by DAC Beachcroft LLP) for the Defendant
Hearing dates: 23 and 24 July 2015
Introduction
This is a claim for clinical negligence made by Georgina Wells ("Mrs Wells") and Bradley Smith ("Mr Smith") who are the parents of Layla Wells ("Layla"). Layla was born and died at the Princess Anne Hospital, Southampton ("the hospital") on 20 July 2010. Layla died as a result of meconium aspiration about 35 minutes after her delivery at 1153 hours.
The claim is against University Hospital Southampton NHS Foundation Trust ("the NHS Trust") which operates the hospital. It is contended that given the readings on the cardiotocograph ("CTG") and the clinical picture, the caesarean section ("C section") which was carried out at 1153 hours should have been carried out by 1050 hours. It is contended that Layla probably aspirated the meconium after 1050 hours, and that if the C section had been carried out by 1050 hours Layla would not have died. The NHS Trust says that it interpreted the CTG properly and denies liability and contends that the care given to Mrs Wells was of an appropriate professional standard.
It should be noted that this case is not a case about failing to provide advice to Mrs Wells about the risks of continuing with the pregnancy and not having an earlier C section, compare Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 WLR 768. Some evidence at trial suggested advice should have been given to Mrs Wells about the risks of continuing with the pregnancy, which would have been balanced against the risks of having a C section. An example of this evidence was answer 20 of the joint statement and there was some oral evidence at trial to the same effect. A Montgomery type claim has not been pleaded, and there was no evidence from Mrs Wells about what she would have done had she been given any such advice. It was confirmed at trial that such a claim was not being pursued.
Mrs Wells and Mr Smith claim damages for bereavement as a result of Layla's death in the sum of £11,800 and funeral expenses of £1,049.95. The quantum of these claims is agreed if liability is established.
Mrs Wells and Mr Smith also bring claims for psychiatric injuries, namely an adjustment disorder of mild to moderate degree lasting 6 months, suffered as a result of the death of Layla, and £500 for the cost of 3 sessions of bereavement therapy. The NHS Trust accepts that Mrs Wells and Mr Smith suffered an adjustment disorder, but deny liability for that injury and dispute the quantum of the claim made for the psychiatric injury. There is a dispute between the parties about whether Mrs Wells is a primary or secondary victim for the purposes of the claim for psychiatric injury and whether Mr Smith (and Mrs Wells if she is a secondary victim) can satisfy the preconditions for such a claim.
Amendment to the Particulars of Claim
At the beginning of the hearing Mr Neil Davy on behalf of the NHS Trust submitted that part of the claim as advanced in the Claimants' Skeleton Argument had not been formally pleaded. The NHS Trust was able to deal with the point and it was common ground that permission should be given to Mrs Wells and Mr Smith to amend the Particulars of Claim. This was to plead reliance on what were said to be repetitive shallow decelerations, and that the fact that the nadir of the decelerations was below 100 beats per minutes ("bpm") as supporting the requirement to have carried out an earlier C section. The costs of that amendment were reserved.
The evidence at the hearing
The evidence from Mrs Wells and Mr Smith was not challenged, and so their witness statements stood as their evidence.
I also heard oral evidence from: David Howe ("Mr Howe"), the consultant in feto-maternal medicine employed by the NHS Trust who was the obstetric consultant on duty for the labour ward on 20 July 2015; and from Alexander Taylor ("Mr Taylor") who was the specialist Registrar (or formally the specialist Trainee Year 6 in Obstetrics and Gynaecology) on duty on 20 July 2015 and who is now a consultant employed by Plymouth Hospitals NHS Trust.
I heard oral expert evidence about the management of Mrs Wells' pregnancy from Edwin Chandraharan ("Mr Chandraharan"), a consultant Obstetrician and Gynaecologist at St George's Healthcare NHS Trust in London, who has worked for that NHS Trust since 2005. He is also the lead for clinical governance in Obstetrics and Gynaecology and he is clinical director for Women's Services. He has particular expertise in fetal monitoring and conducts courses on CTG for consultants and midwives. He has written chapters in textbooks on CTG and has written a number of peer reviewed articles on CTG, reference to some of which was made in the evidence. I also heard oral expert evidence on the same issues from Duncan Irons ("Mr Irons") a consultant in the department of Obstetrics and Gynaecology at University Hospital of North Durham and who was clinical director for the period 2001–2006. He is a reviewer for National Institute for Clinical Excellence ("NICE") guidelines.
Mr Chandraharan and Mr Irons had produced a joint statement dated 13 th April 2015, and Mr Chandraharan produced a further clarification of his position on 5 th June 2015.
There was a post mortem report from Dr Holden, a consultant paediatric pathologist dated 4 November 2010. This report had been prepared for the Coroner for the purposes of an inquest into Layla's death, and it was relied on by the NHS Trust in its own internal inquiries which led to the production of its Root Cause Analysis Investigation Report. The Claimants' solicitors served a hearsay notice in relation to that post mortem report, noting that the NHS Trust had relied on the post mortem. No counter notice was served, and it appeared that the findings in the post mortem report were likely to be common ground at trial. In the NHS Trust's Skeleton Argument it was suggested that an important conclusion of the post mortem to the effect that Layla had suffered hypoxic insult " at least one hour prior to death" and therefore at least 30 minutes before birth by C section was wrong. Mr Mark Lomas on behalf of Mrs Wells and Mr Smith suggested that I should take little account of the challenge, because the NHS Trust had not asked for Dr Holden to attend and had only challenged it late. Mr Davy on behalf of the NHS Trust suggested that I should give little weight to the post mortem report because I had not heard Dr Holden give evidence. My approach to the post mortem report will be to do the best that I can, knowing that this was a report produced by the NHS Trust and relied on by the NHS Trust for the purposes of the inquest and its own inquiries, but recognising that a late but important point about the compatibility of the findings in the post mortem report with the cord gas analysis has been raised. In carrying out this task I have the disadvantage of not having seen Dr Holden give evidence or having had the benefit of any further explanations that Dr Holden might have been able to give.
I also had reports and answers to written questions from Dr Morgan O'Connell, a psychiatrist, on the adjustment disorder suffered by Mrs Wells and Mr Smith. Dr O'Connell's report and answers was agreed. Dr O'Connell had been a consultant psychiatrist at the Royal Navy Hospital in Haslar and is now in private practice.
In addition to the medical notes set out in the trial bundle at the hearing I was also provided with a copy of the CTG trace which commenced at 0827 hours and which continued (albeit for some interruptions which will be addressed below) until about 1119 hours.
I will set out material parts of the evidence when addressing the issues raised by the claim.
The case was listed for two days, having regard to issues of proportionality and cost, and it was completed in two (very full) days with oral submissions supplemented by written submissions. I am very grateful to Mr Lomas on behalf of Mrs Wells and Mr Smith and Mr Davy on behalf of the NHS Trust, and their respective legal teams, for their submissions and assistance.
Relevant guidance
Both sides made reference to the NICE quick reference guide " Intrapartum Care: Care of healthy women and their babies during childbirth" issued in September 2007 (" the NICE Guidance").
The NICE Guidance provided details of: what maternal factors might contribute to an abnormal trace; what to be done when there was meconium stained liquor; what features of a trace would be reassuring, non-reassuring and abnormal; and what actions should be taken in the event that traces were pathological. I will refer to the relevant passages when dealing with the evidence. Both sides made the point that the CTG needed to be looked at as a whole, and that the NICE Guidance provided important guidance but could not provide a complete answer to what ought to be done and what was being shown by the emerging clinical picture.
Reference was also made to " The Use of Electronic Fetal Monitoring" evidence based clinical guideline number 8 issued by the Royal College of Obstetricians and Gynaecologists (" the EFM Guidance").
There was further reference to a number of articles including an article written by Mr Chandraharan with Professor Arulkumaran headed " Prevention of birth asphyxia: responding appropriately to cardiotocograph traces. Best practice & research clinical...
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