Lillywhite v University College London Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lady Justice Arden,Lord Justice Buxton |
| Judgment Date | 07 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1466 |
| Docket Number | Case No: B3/2004/2594 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 2005 |
[2005] EWCA Civ 1466
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MR JUSTICE JACK
HQ02X02464
Lord Justice Buxton
Lord Justice Latham and
Lady Justice Arden
Case No: B3/2004/2594
James Badenoch QC & Richard Smith (instructed by Messrs Kingsley Napley) for the Appellant
Terence Coghlan QC & John Whitting (instructed by Messrs Hempsons) for the Respondent
Introduction
Alice is the appellants' second child, born on the 26 th April 1992. She suffers from a severe malformation of her brain caused in the early stages of foetal development by the failure of her fore-brain to divide into two. The condition is called holoprosencephaly. She is quadriplegic, and is unable to use her limbs or talk. She has a gastrostomy and requires twenty-four hour care. Despite her very severe difficulties, she can recognise and respond to those who look after her.
In this action the appellants claim damages for the loss, pain and suffering which they themselves have suffered as her parents consequent on Alice's birth. The trial with which we are concerned dealt solely with the issues of negligence and causation. The negligence alleged was that of Professor Rodeck, who has been Professor of Obstetrics and Gynaecology at University College London since 1990 and is head of the Department of Obstetrics and Gynaecology at University College Hospital. He is a man of considerable distinction; whilst he was in a previous post, at Kings College Hospital, he had set up what was possibly the first unit in the world devoted exclusively to foetal medicine. The negligence which was alleged in the claim was that he had failed when carrying out an ultra sound scan of Alice while she was in utero on the 3 rd December 1991 to appreciate that the scan showed abnormalities of Alice's brain indicative of holoprosencephaly and to have advised the appellants accordingly. Had they been so advised, the judge, Jack J, found that the pregnancy would have been terminated. There is no appeal against that finding. The judge, however concluded that the appellants had not established that Professor Rodeck was negligent. He therefore dismissed the claim. The appellants appeal on the basis that the judge, on a proper analysis of the facts, was wrong. As a result, this court has had to consider in some detail the evidence at the trial and has done so acutely aware of the fact that it has not seen or had the opportunity to evaluate any of the witnesses as they gave their evidence.
Holoprosencephaly
This is a comparatively rare condition which has been stated to have an incidence of between one in 10,000 and one in 30,000 births and to be responsible for one in 250 abortions. The judge, in his judgement, set out the description of the condition given in the report of Dr Peter Twining, Consultant Radiologist at the Queen's Medical Centre in Nottingham, who was called as an expert witness on behalf of the appellants. It has not been suggested that this description can be bettered, so I will use it for the purposes of this judgment. In paragraph 2 of his report he said:
"2.1 The normal foetal brain consists of two halves, each half is called a cerebral hemisphere and each hemisphere contains a ventricle (a thin fluid filled space). These ventricles communicate towards the front of the brain and then there is a midline channel through which fluid passes (third ventricle) which then communicates with the posterior part of the brain (cerebellum). There is a further fluid space within the cerebellum (fourth ventricle) which communicates with the outside of the brain and this is where the fluid (cerebral spinal fluid) leaves the brain and then is absorbed over the surface of the brain.
2.2. In holoprosencephaly the process by which the brain separates into two halves does not occur. The result is a spectrum of abnormalities in which many of the mid line structures are absent and there is a variable shaped single ventricular cavity. The brain usually separates into two halves during the fourth and fifth weeks of pregnancy. There are three main types of holoprosencephaly.
2.3 The most severe type is alobar holoprosencephaly. In this condition there is a single ventricular cavity and the thalami are fused. There is also absence of the midline structures such as the cavum septum pellucidum, corpus callosum and falx. This diagnosis of holoprosencephaly is quite straightforward as the brain is severely disordered and there is a large central fluid filled space within the brain.
2.4. Semi lobar holoprosencephaly is a more difficult diagnosis to make, however once again there is a single ventricular cavity around the thalami, which are partially fused. The anterior parts of the ventricles are fused in a sickle or horse shoe shape and there is absence of the corpus callosum, cavum septum pellucidum and anterior portion of the falx. The posterior parts of the lateral ventricles will appear relatively normal.
2.5 Lobar holoprosencephaly is the least severe form and in this condition the ventricles are almost normally formed however there is fusion of the most anterior parts of the lateral ventricles. The corpus callosum, cavum septum pellucidum and part of the falx are absent.
2.6. It should be noted therefore that in all forms of holoprosencephaly there is absence of the cavum septum pellucidum. In both lobar and semi lobar forms there is absence of the anterior horns of the lateral ventricles."
For the moment, it is only necessary to elucidate some of the terms used in these passages. The normal brain, formed as it is of two hemispheres, has a cleft between the two which is occupied by the structure known as the falx. This structure cannot develop if the brain has not divided. Hence its absence or partial absence depending on the extent of the holoprosencephaly where that condition is present. The corpus callosum is the structure which provides the communication between the two halves of the forebrain. This structure will accordingly be absent where division has not occurred. The cavum septum pellucidum (the CSP) develops in conjunction with the corpus callosum at the relevant period of gestation, which is 18 to 20 weeks. It consists of two parallel structures with a fluid filled space which ultimately join to form a fibrous sheet. While it is developing, it is identified on ultrasound scans by the presence of two parallel lines. Again, where the forebrain has not divided, there can be no CSP.
Alice's Condition
MR scans of Alice's brain since her birth have established that she has semi lobar holoprosencephaly, towards the severe end of the spectrum. As a consequence she has no corpus callosum and has never had a CSP. Her falx extends no further forward in her brain than the line between her ears. The anterior horns of her ventricles are absent. The ventricles join in a horse shoe or sickle shape. She therefore has what is known as a monoventricle. It is the fact that these structures were absent at the time that Professor Rodeck performed his ultra-sound scan which is at the heart of this case.
The History
This can be taken from paragraphs 7 to 32 of the judge's judgment, reported at [2004] EWHC 2452(QB). As both parties are agreed that these paragraphs accurately set out the history, I gratefully adopt them:
" The history in detail
7. On 28 November 1991 Mrs Lillywhite attended at the West London Hospital for a routine abnormality scan. This was carried out by Mrs Janet Wright, the superintendent radiographer in charge of ultrasound services at the West London and Charing Cross Hospitals. Mrs Wright graduated as a radiographer in 1976 and in 1982 obtained a diploma of medical ultrasound. She was an able and experienced sonographer but did not have the training of a doctor. Mrs Wright remembers the scan for two reasons: first because Mrs Lillywhite was anxious that she might have an abnormal child because of her age (she was 36), and second it was the first and only time that Mrs Wright had not found a cavum septum: she remembered it as "the case of the absent septum pellucidum". Mrs Wright used a Hitachi EUB 340 machine, which she described as not one of the latest but a very good machine. Despite a careful search in the course of which, as was usual, she recorded pictures, she could not find a cavum septum. She thought that the front of the brain was filled with brain tissue. Her pictures are available and three relate to the skull and brain. They would not show the same definition and differences of shading as would have been apparent to Mrs Wright on the screen and they may have deteriorated with age. Each gives a single view as opposed to the multiple views Mrs. Wright would have obtained as she moved the probe.
8. Mrs Wright scanned the skull and brain of the fetus in the axial or transverse plane, that is, so that she obtained a sonographic image of it at the level across the skull at which she was directing her probe, which represented a horizontal slice at that level. She found that she was able to obtain echoes which visualised the structures in the posterior brain. She found the midline echo representing the third ventricle but she could not find a cavum septum nor could she find the anterior horns of the lateral ventricles. She did not refer to the anterior part of the falx either in her evidence or expressly in the note she made on the examination form. That note read: 'unable to visualise septum pelucidum and normal anatomy in the...
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