Lisa Diane Wild and Another v Southend University Hospital Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Michael Kent |
| Judgment Date | 03 December 2014 |
| Neutral Citation | [2014] EWHC 4053 (QB) |
| Date | 03 December 2014 |
| Court | Queen's Bench Division |
| Docket Number | Claim No. HQ12X02577 |
[2014] EWHC 4053 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Kent QC
(Sitting as a Judge of the High Court)
Claim No. HQ12X02577
Philippa Whipple QC (instructed by Gadsby Wicks) for the Second Claimant
Charles Bagot (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 14, 17 and 18 November 2014
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.
Michael Kent QC
Michael Kent QC:
The Claimants Mr. and Mrs Wild were expecting their first child in March 2009. Mrs Wild had been under the care of the antenatal clinic at Southend Hospital managed by the Defendant NHS Foundation Trust. On 20 th March 2009, which was the 40 weeks gestation milestone and thus the expected due date for the birth of her child, Mrs Wild had a show of blood and rang the hospital who told her to come in. Accompanied by her husband who had been called back from work, she did so. In an examination room, in circumstances which I will describe in more detail later in this judgment, it was discovered that in fact her baby had died in the womb. After returning home for the night Mr. and Mrs Wild came back the next morning when labour was induced and, after some seven hours, she delivered a still-born child they have named Matthew. The Claimants commenced proceedings against the Defendant alleging negligence in a number of respects in connection with the noting and recording of the baby's rate of growth. They alleged that, but for that negligence, Matthew would probably have been born alive because foetal compromise would have been diagnosed at a sufficiently early date for delivery to have been achieved through induction of labour before his death in utero. I summarise these allegations of negligence and causation because the Defendants have admitted the claim of Mrs Wild and, by a Consent Order dated 10 th July 2013, have agreed to pay her the sum of £41,948.64 in settlement of her claim. Breach of the duty of care owed to her causing compensatable loss is thus conceded. Her claim had in fact included a claim for damages for psychological trauma although Mrs Wild had a good cause of action because of the negligence leading to the death of her baby in the womb, whether or not she had suffered additional physical or psychological injury (see Bagley v. North Herts Health Authority NLJ 30 July 1986 Simon Brown J).
I am concerned only with the claim of the Second Claimant, Mr. Wild, who also claims damages for psychological injury but his claim, if it is to succeed, must navigate its way through the various "control mechanisms" which the law has devised to limit claims for "nervous shock" in respect of "secondary victims", controls that do not exist in the case of primary victims.
There is no issue in this case as to the genuineness of the injury suffered by Mr. Wild, namely a psychological illness or injury which satisfies, by one label or another, the acknowledged works of classification of recognised psychiatric illness. Indeed the quantum of any award of damages properly attributable to such injury is, subject to liability, agreed in the sum of £25,000.
The parties have exchanged the reports of psychiatric expert witnesses, Dr. Martin Baggalay on behalf of Mr. Wild and Dr. Richard Latcham on behalf of the Defendant. Those experts have met on two occasions, have identified areas of agreement and have answered specific questions posed by the parties' solicitors. In all essential matters they are agreed and those witnesses have not been called. I will have to look at the precise details of the agreement between the psychiatrists insofar as they relate to the causation of Mr. Wild's illness in order to fit their findings into the legal framework of the "nervous shock" cases.
The Claimants served witness statements signed by each of them. The Defendants have not challenged any part of their evidence (and have not called any factual evidence of their own). On the application of Miss Whipple QC for the Second Claimant I permitted Mr. Wild to go further than simply confirming his witness statement in the witness box and allowed him to describe in his own words his experiences over the two days (20 th and 21 st March 2009) which are at the heart of this case. Mr. Bagot for the Defendant objected to this course but it seemed to me that it was properly within my discretion to allow Mr Wild to describe matters in his own words and it has been of assistance to me although, in the event, he did not say anything inconsistent with or significantly additional to what had been said in his witness statement. Mr. Bagot did not cross-examine. Mrs Wild's witness statement was put in evidence without the need to call her to confirm it on oath.
The facts in more detail
Mrs Wild regularly attended her antenatal appointments from the end of 2008 when the midwives, as is normal, recorded the foetus's fundal height so as to plot an antenatal growth chart. Apart from an appointment on 10 th January 2009 when they were told that the baby was in the breech position, something confirmed just over three weeks later but which then corrected itself, the Claimants were given no cause for concern at any time. Mrs Wild did have some severe pains and spasms but she was reassured about these as being perfectly normal and the pain eventually disappeared. On 10 th March the Claimants (Mr. Wild invariably attended these appointments with his wife) again attended and, as far as they were concerned, everything was proceeding normally. Mrs Wild did mention to a midwife that her baby was not moving much anymore during the day but was told this was normal.
On the 20 th March she woke at about 8.30am and found spots of blood. She called her mother and Mr. Wild at work. She was developing low back pain. She phoned Southend Hospital who told her she should come in and, after waiting for her husband to get home, they went to the hospital and were taken into an examination room.
Mr. Wild described in oral evidence what then happened. He said that he was in something of a panic when his wife had phoned him because as far as he was concerned the baby was coming. He was excited and elated but also terrified that he was going to be a father for the first time. In the examination room a trainee midwife tried to listen to the heartbeat with a handheld scanner but could not find it. That did not ring any alarm bells at that point. The trainee went and got someone else who came in and, using a Doppler scanner, also failed to find a heartbeat. Another person then came in but with a heart monitor and pads which were placed on Mrs Wild but still they could find no heartbeat. Mr. Wild told me that he had no idea what was then going on. His wife was upset and other people were crying including one of the trainee midwives. He did not at first realise what was happening " but it started to dawn on us that there was a problem". He said that when the fifth person arrived with a scanner and said "I concur" it was as if he had been slapped across the face. He was shocked, bemused and dumbfounded and did not know what to do. His wife was crying and left the room. No one actually said to him your child has died. Before he heard the words "I concur" he was worried. There were then five people in the room, his wife was crying and it was bedlam. The look on his wife's face was then one of utter devastation. He felt numb. He said it had never entered his head that you could turn up on the day your baby was due and something like this could go wrong. He had been there when scans had been taken in the past and had been able to hear the heartbeat. This time nothing could be heard. He realised his wife had left the room and, for reasons he could not explain, he found himself apologising to the staff in the room and went to find her. She was wandering around trying to find a way out of the hospital. She was hysterical and crying. They both felt they had to get out and they went over the road where Mrs Wild phoned her father and he phoned his mother. It was as he was talking to his mother that it had struck him what had happened. Again he found himself apologising, this time for the fact that his child had died, and it sank in when he said it out loud. His wife was distraught and in tears as he was. His wife's father came and told them they had to go back into the hospital. Mr Wild said he didn't want to do that because then "it's real". They were persuaded to go back in. He found himself overhearing a newly born child crying from an adjoining delivery room. They spoke briefly to the consultant who said to Mrs Wild "you have to deliver the baby". She said "why?" and asked if a C-section was possible. The consultant said it was a matter of either staying in that night or coming back in the morning. They opted to go home. Mr Wild said he felt sick about his wife returning to deliver a dead child and he described it as the most awful thing one can go through. They made it through the night hardly sleeping and the next morning arrived back at the hospital at 7.45. Labour was induced and Mrs Wild walked around the hospital grounds. When it came to the time for delivery of the still-born child Mr. Wild was present. He stood to one side and cried and screamed "no" repeatedly. His wife was panicking and hysterical but was stronger than him. The midwife took the dead baby out of the room but returned with him and asked if they wanted to hold him. Mr. Wild was utterly repulsed by the idea. He thought it was horrible and did not feel right. However later,...
To continue reading
Request your trial
-
Liverpool Women's Hospital NHS Foundation Trust v Mr Edward Ronayne (Respondent/Claimant)
...NHS Trust v Walters [2003] PIQR P16; Galli-Atkinson v Seghal [2003] Lloyds Rep Med 285; Wild v Southend University Hospital NHS Trust [2014] EWHC 4053 (QB); and Brock v Northampton General Hospital NHS Trust [2014] 4244 (QB). 16 I do not propose to rehearse here the facts in all those cases......
-
Saffron Paul (a child, by her mother and litigation friend Balbir Kaur Paul) v The Royal Wolverhampton NHS Trust
...danger.” Wild v Southend University Hospital NHS Foundation Trust 35 In Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), [2016] PIQR P3, the claimant suffered psychiatric damage after being told of the death of his wife's baby in utero as a result of negligen......
-
Re (A minor by her mother and Litigation Friend LE) (First Claimant) LE (Second Claimant) DE (Fourth Claimant) v Calderdale & Huddersfield NHS Foundation Trust
...Reliance is placed on paragraph 20 of the judgment of Michael Kent QC in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB); [2016] PIQR P3. In that case the fetus died in utero and the Defendant accepted the mother was a primary victim. The Defendant says that i......
-
Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust
...to sue as a primary victim. Whipple J had been counsel for the claimant in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) in which Michael Kent QC, sitting as a Deputy High Court Judge, had held that, in a case where, as a result of negligence, the child had......
-
Health Law News - February 2016
...[2015] EWCA Civ 588; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB); Wild v Southend Hospital NHS Trust [2014] EWHC 4053 (QB)). The relevant criteria for such a claim to succeed are set out in Alcock v South Yorkshire Police [1992] 1 AC 310, A close tie of love and af......
-
Wells And Smith V University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB)
...[2015] EWCA Civ 588; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB); Wild v Southend Hospital NHS Trust [2014] EWHC 4053 (QB)). The relevant criteria for such a claim to succeed are set out in Alcock v South Yorkshire Police [1992] 1 AC 310, A close tie of love and af......