Jackson James Ireland v Secretary of State for Health (Sued as South Tyneside NHS Foundation Trust)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 11 February 2016 |
| Neutral Citation | [2016] EWHC 194 (QB) |
| Date | 11 February 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: 9NE 90060 |
[2016] EWHC 194 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
Newcastle Crown Court
The Quay Side, NE1 3LA.
The Hon Mr Justice Coulson
Case No: 9NE 90060
Stephen Grime QC (instructed by Longden Walker and Renney) for the Claimant
Stephen Miller QC (instructed by Ward Hadaway) for the Defendant
Hearing dates: 14, 15, 16, and 17 December 2015
The claimant, Jackson Ireland, was born at South Tyneside District Hospital ("the hospital") at 6:40am on 6 August 1992. The defendant is responsible for the hospital and the reasonable performance of its medical staff. Jackson suffers from cerebral palsy which was caused by a shortage of oxygen (hypoxic ischemia) for a period of not less than 5 minutes and not more than 10 minutes immediately before his delivery. Although, happily, his cognitive function was preserved, Jackson suffers for a range of physical disabilities as a result of the events surrounding his birth.
Jackson's mother is Lorraine Routledge. In these proceedings, it is said that the defendant's medical staff were negligent during the latter stages of Lorraine's antenatal care, and in the management of her labour and delivery. That delivery was an assisted breech delivery, carried out by an obstetric consultant, Mr MacKay, assisted by Dr Veronica Miller who, at that time, was acting Registrar in the obstetrics and gynaecology department at the hospital. Jackson was delivered in poor condition, with the unusually short umbilical cord wrapped three times around his neck. It was the compression on the cord and the strangulation effect which caused the hypoxic ischemia.
The issues in this case involve a consideration of the care and advice given to Lorraine shortly before the delivery, and the events between about 5:30am and 6:40am on the morning of 6 August 1992. The trial was limited to issues of liability and causation: if I find in favour of Jackson, then there will be a subsequent trial to deal with all issues of quantum.
I can deal very briefly with the law. The relevant test to be applied is the well-known formulation of McNair J in Bolam v Friern NHS Hospital Management Committee [1957] 1 WLR 583 at page 587:
"…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
This test was approved by Lord Scarman in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and refined by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232.
This is not a case about systems failures. Although Mr Clements suggested that the hospital operated a two-tier system for obstetric cover when Dr Miller was on duty overnight (because she was only an acting Registrar) and a three-tier system when either of the two full Registrars were on duty, I was wholly unpersuaded that this made any difference either to these events or at all. Moreover, Mr Clements did not suggest that, even if this was a proper analysis, the two-tier system for obstetric cover was in any way unacceptable or bad practice. Thus this is a case which is confined entirely to what did or did not happen at particular stages of Lorraine's care.
I propose to deal with the factual and expert issues in this way. In Section 2 below, I set out the relevant chronology of events, taken almost exclusively from the contemporaneous documents. In Section 3 below, I outline the witnesses called by the parties and make brief observations upon them. In Section 4 below, I deal with the issues of liability and causation concerning the failure to perform External Cephalic Version ("ECV"), a method by which the baby might have been turned prior to delivery. In Section 5 below, I deal with the issues of liability and causation concerning the allegation that the trial of labour should have been induced in a controlled environment. In Section 6 below, I deal with the issues of liability arising out of the actual birth and delivery of Jackson on 6 August 1992, and in Section 7, I address the corresponding issues of causation. There is a short Section 8 setting out my conclusions. I should say at the outset that, in undertaking these tasks, I have been greatly assisted by the focussed submissions of leading counsel on both sides.
CHRONOLOGY
Lorraine had her first child, a son, on 10 June 1977. There were no difficulties or complications at birth. Jackson is her second child. When Lorraine became pregnant with Jackson, she was 31. Her estimated due date was 25 July 1992. She attended regularly for antenatal appointments from 17 February 1992 onwards. It appears that, at that early stage, she was under the overall care of Mr MacKay, although it is unclear whether or not he ever examined her. In April 1992, when the defendant took on a fourth consultant in the maternity unit at the hospital, Lorraine was transferred to the care of Mr B K Ghosh.
On 26 June 1992, at about 35 weeks, Lorraine was seen by a community midwife, Ms Bronwyn Boddy. Ms Boddy also worked at the delivery suite at the hospital. She was a very experienced midwife. She identified for the first time that there was a breech presentation. At the next appointment on 2 July 1992 (36 weeks and 5 days), Ms Boddy again identified a breech presentation. A scan on 10 July 1992 (37 weeks and 6 days) further confirmed the breech presentation.
The features of the breech presentation in this case were as follows. The foetus was upside-down in the womb, lying with his head at the top and his bottom closest to the vagina. His legs were flexed: in other words they were bent at the hips and again at the knees, as if he had tucked up his legs. At this stage, neither of his legs was extended downwards.
On 17 July 1992 (38 weeks and 6 days), Lorraine was seen by Mr Ghosh. He again confirmed the breech presentation and he advised what the notes described as a "trial of breech delivery". In other words, he was suggesting that arrangements be made for Lorraine to deliver Jackson normally, notwithstanding the breech presentation but that, if this proved difficult, the baby would instead be born by Caesarean section.
This was confirmed at Lorraine's appointment on 31 July 1992, which referred to her having a CTG "early next week for Trial of Lab [labour]". By this time she was at term (40 weeks) plus 6 days. There was no attempt to fix a preliminary date for an induction, despite the fact that it was agreed by the experts that an induction was automatically required at term plus 14 days. In fact, by 6 August, Lorraine was at term plus 12 days and still no arrangements had been made for an induction.
From this point on in the chronology, I make findings as to approximately when particular events occurred. I have taken the timings principally from the print-out of the CTG machine, which timings are largely supported by the more approximate timings in the medical notes. I am confident that the events described below happened within minutes (either way) of the approximate time which I have ascribed to it.
Lorraine went into first stage labour at home in the early hours of 6 August. She was admitted into hospital at about 5:30am that morning. It appears that she was taken either directly to one of the hospital's High Risk delivery rooms, or taken there after only a short wait in the maternity unit's assessment room. I find that, on the balance of probabilities, all of Lorraine's examinations took place in the High Risk delivery room.
At about 5.40am, Lorraine was vaginally examined by an experienced midwife, Mrs Susan Ward, who found her to be 6 centimetres dilated. More importantly, Mrs Ward found that the breech was now a footling breech; that is to say, one of the legs was extended down towards the neck of the womb. The evidence was that a footling breech changed everything: now that a footling breech had been diagnosed, a Caesarean section was required.
Mrs Ward noted that Lorraine was experiencing strong contractions, one every four to five minutes. The foetal heart was heard and continuous foetal monitoring was commenced using cardiotocography ("CTG") at about 5:43am. At about 5:50am, Ms Ward contacted Dr Miller, the acting Registrar on duty in the hospital. It appears that Dr Miller examined Lorraine at about 5:55am and confirmed the footling breech presentation. She also noted that the membranes had ruptured. She recorded that Lorraine was 7 centimetres dilated. Her notes, completed shortly afterwards, were timed at 6am.
Because of the footling breech presentation, Dr Miller went outside the delivery room and used the phone on the wall to ring Mr MacKay, the on-call consultant obstetrician. As she put it at paragraph 5 of her witness statement:
"As there was a footling breech presentation I then rang the consultant obstetrician on call, Mr MacKay immediately to discuss the need for a Caesarean section thereafter. On the telephone, I made Mr MacKay aware of the patient's obstetric history together with my findings upon examination. He agreed that a Caesarean section was required and advised that he would come into the hospital from home immediately to assist. In the meantime however he advised that the patient should be prepared in theatre....
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