HTR (acting by his Mother and Next Friend LJR) v Nottingham University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 30 November 2021 |
| Neutral Citation | [2021] EWHC 3228 (QB) |
| Docket Number | Case No: QB-2019-003519 |
| Court | Queen's Bench Division |
[2021] EWHC 3228 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cotter
Case No: QB-2019-003519
Howard Elgot (instructed by Hudgell Solicitors) for the Claimant
Dominic Nolan QC (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 5th, 6th & 7th October 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.
Introduction
This is the judgment upon the issue of breach of duty in a clinical negligence claim.
By proceedings issued on 4 th October 2019, the Claimant, who proceeds by his mother and litigation friend, LJR, seeks damages for alleged medical negligence during an appointment at an antenatal clinic at Nottingham University Hospital on 6 th October 2004. The Claimant was subsequently born by emergency Caesarean section four days later on 10 th October 2004, having suffered permanent damage from chronic partial hypoxia which has resulted in asymmetric quadriplegic cerebral palsy.
Summary of Claimant's case
LJR was referred to the ante-natal clinic by her community midwife, Ms Lincoln-Davis, who was concerned that the Claimant was in a breech position.
LJR' case is that:
a. she was seen by Dr Salman, then a Senior House Officer, at the clinic on Wednesday, 6 th October 2004. LJR was accompanied by her mother and was not seen until late afternoon (more than two hours after her appointment time); and
b. she made a clear report to Dr Salman that in the period before the appointment she had experienced reduced fetal movement, sufficient to be a cause of concern to her; and
c. an ultrasound scan was undertaken by Dr Salman, who appeared to satisfy herself that the Claimant was not in breech position, that everything was in order, that the Claimant's head was down and he was ready to be born, and that this would explain the lack of movements; and
d. by ignoring LJR' report of reduced fetal movement as a potential matter of concern requiring further investigation, Dr Salman acted negligently.
It is not in issue between the parties that if LJR had raised a concern as to reduced fetal movement, then Dr Salman was negligent in failed to act upon it.
Summary of Defendant's case
It is the Defendant's case that:
a. LJR did not raise a concern as to reduced fetal movement with Dr Salman on Wednesday 6th October;
b. the note made by Dr Salman, who did not undertake the ultrasound, but saw LJR after it had taken place, records active fetal movement;
c. any concern which LJR raised regarding reduced fetal movement would have been recorded and investigated; and
d. after the Claimant was admitted on Sunday 10 th October 2004, no medical record sets out any reference to LJR having experienced or been concerned about reduced fetal movements as at 6 th October, but only on subsequent days.
Dr Salman has no independent recollection of meeting LJR on 6 th October 2004. As no claim was intimated until eight years after the events in question (by correspondence in 2012) and the trial was taking place on the 17 th anniversary of the clinic appointment, this was unsurprising. In those circumstances, it was the Defendant's case that the court should place considerable reliance on the contemporaneous medical records, as opposed to LJR' recollection of events such a long time ago.
Applications
Unfortunately, the first day of the trial was largely filled by discussion in relation to an application for relief for sanctions by the defendant in relation to two supplementary statements of Dr Salman dated 2 nd September 2021 and 27 th September 2021. This application, having been made on Friday 1 st October 2021, notwithstanding the anticipated commencement of trial on Monday 4 th October 2021, led to dispute between the parties as to matters including: whether the material covered in the supplementary statements elaborated upon or contradicted the evidence in Dr Salman's original statement; the need for expert handwriting evidence, and as a consequence an adjournment of the trial date; and the practical approach to any likely examination and cross-examination of Dr Salman in the event that certain paragraphs were not admitted.
Ultimately, these matters were resolved by a concession by Mr Nolan QC for the Defendant that only paragraphs 1 – 15 and 31 – 38 (each inclusive) of Dr Salman's first supplementary statement dated 2 nd September 2021, and the entirety of Dr Salman's second supplementary statement dated 27 th September 2021, should be admitted. It was also agreed that the Claimant had permission to rely upon an additional statement from Mr Jeremy Brocklesby, Consultant Obstetrician, commenting upon matters set out in the second supplementary witness statement of Dr Salman.
These discussions brought to the fore a particular difficulty affecting the determination of the factual issues in dispute. The reproductions in the trial bundle of the key contemporaneous documents, and specifically the medical record relating to LJR' appointment on 6 th October 2004, were very difficult to read and degraded in quality, owing to the age of those documents, their initial production on microfiche, and deterioration in legibility arising from their subsequent scanning and photocopying.
Issues
The issues for determination were wholly factual. It is also common ground between the parties that a maternal report at an antenatal clinic of reduced fetal movement is a matter requiring immediate further investigation. It is common ground between the parties that fetal movement was discussed between LJR and Dr Salman at the clinic appointment on 6 th October 2004. The central issue for determination was what LJR said to Dr Salman about fetal movement on that date.
A subsidiary issue is whether Dr Salman was the person who carried out the ultrasound scan on LJR on 6 th October 2004, which scan undoubtedly took place (and established that the baby was not in a breech position). It is the Defendant's case 1 that Dr Salman did not carry out ultrasound scans at antenatal appointments, but rather that such scans were undertaken by either a sonographer or a senior doctor. LJR is adamant that Dr Salman undertook the ultrasound. The importance of this factual dispute is that its determination may inform the accuracy of recollection of the key witnesses and/or their credibility.
Outline facts
LJR had previously given birth to a daughter by normal vaginal delivery on 20 th July 1999 at 40 weeks gestation. The Claimant's estimated date for delivery was 30 th October 2004. LJR was referred to the maternity unit by Ms Lincoln-Davis, a community midwife, following an appointment on 30 th September 2004 due to a concern that the Claimant was in a breech position. There is no suggestion of reduced fetal movements at this time.
LJR was understandably concerned that the Claimant was in breech, and went along to the ante-natal appointment on 6 th October 2004 with her mother, Judith Smith (who had travelled approximately 120 miles to accompany her to the appointment, as her husband, was working away on that day).
th October 2004 (Wednesday)
It is not in dispute that the clinic would have been busy. It is also not in dispute that an ultrasound was performed, and that LJR was seen by Dr Salman. The record of the appointment, in so far as it can be read, has entries on the left- and right-hand pages of a booklet which (as was the practice) was retained by LJR for production at her next appointment.
The left-hand page of the booklet has the following columns:
| Date Time | Urine | Weight | B.P. | Hb | Maturity Assessed By | Presentation | Relation to Brim | Fetal Heart | Oedema |
| Protein | Sugar | Weeks of Amen-orrhoea | U/ S | Uterine Size | Fundal Height | ||||
On the left-hand page of the Claimant's booklet, in the ‘Presentation’ column, there is an entry reading “ Ceph”, and there is a tick in the column for fetal heart. There was a dispute between the parties as to who made these entries.
On the right hand side there is an entry completed and signed by Dr Salman:
Well. Worried if baby breech. Confirmed cephalic by USS. Declines having FBC. See @ 41/40 Active FMs.
Events subsequent to the appointment
On Friday 8 th October 2004, LJR was shopping in Newark for a friend's 30 th birthday. She was standing outside the Thorntons shop when she felt very sharp fetal movements such that she had to put her hand on a nearby post/bollard. Her evidence is that she was worried that she was going into labour.
During the evening of Sunday 10 th October 2004, LJR took a bath. She noticed that the warm water of the bath had not produced any fetal movement, and this worried her. She was so obviously worried that her husband insisted that she attend at the hospital to have matters checked out.
LJR was admitted at 21.40pm on 10 th October 2004. The note in the hospital records, which note is likely to have been made a by a midwife, is rendered as follows:
Admitted for [?] [?] [?] No fetal movement since Thursday URINE NAD.
BP Lk 10[?] pres ceph 3*/5 palp
No [label?] [?] [?]
CCG [suspected?] left on D/ informed
10/10/04 22.[?]
SHO
37/40 [?] [?] [?]
No FM 2/7 [?]/bleeding/SRM
…
The note, like almost all of the relevant hospital records in this matter was handwritten, and was produced at trial in a form which, as noted above, was in poor quality due to age and photocopying/reproduction. It contains a significant number of words which cannot be read. In this judgment,...
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