Loraine v Wirral University teaching hospitals NHS foundation trust

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeThe Hon. Mr Justice Plender
Judgment Date18 July 2008
Neutral Citation[2008] EWHC 1565 (QB)
Date18 July 2008
Docket NumberCase No: 6MA90744

[2008] EWHC 1565 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Plender

Case No: 6MA90744

Between:
Stephen Loraine (a Child by his Mother and Litigation Friend Pauline Loraine)
Claimant
and
Wirral University Teaching
Hospital Nhs Foundation Trust
Defendant

David Allan QC and Richard Pearce (instructed by Thompsons of Newcastle) for the Claimant

Miss Margaret Bowron QC (instructed by Mr Richard Watson) for the Defendant

Hearing dates: 06 – 09 May, 2008

Approved Judgment

The Hon. Mr Justice Plender
1

The Claimant was born on 22 nd August 2000. He suffers from cerebral palsy, manifested in spastic quadriplegia, general developmental delay, visual impairment and gastro-oesophageal reflux, this being the consequence of foetal asphyxia that he sustained when his mother suffered a profound placental abruption shortly before his birth. In this action he claims damages from the Defendant, which is responsible for the provision of medical services at Arrowe Park Hospital.

2

The question of labour management raised by this case may be of interest to hospital administrators. The question of causation may be of interest to lawyers.

The Facts

3

On 21 st August 2000 the Claimant's mother, Pauline Loraine, was in the thirty-eighth week of her fifth pregnancy. She and her husband went to sleep shortly before midnight. At about 02.45 on the following morning she woke up and felt a gush of liquid on her legs. On pulling back the blankets she saw a substantial quantity of liquid blood as well as some clots of blood. She felt weak and faint. She saw in the mirror that her skin appeared grey. Her husband ran downstairs to telephone for an ambulance. Shortly after 0300 an ambulance arrived. Mrs Loraine was placed on a stretcher and driven to the Arrowe Park Hospital. On the way the ambulance crew administered intravenous fluid to replace her loss of blood. At 03.35 AM she was seen in the labour ward at the hospital where the Claimant was born by emergency caesarean operation at 03.58. He was in poor condition. The Defendant admits that if he had been born before 03.38 he would have been uninjured. After the caesarean section, Mrs Loraine was found to have a cervical fibroid measuring 6 cm by 6 cm and a retroplacental clot (ie: a clot behind the placenta).

4

This was by no means Mrs Loraine's first visit to the maternity unit at the Arrowe Park Hospital.

5

Her first child was born there on 17 th May 1989, after a relatively uncomplicated labour augmented by Syntocinon. Labour was followed by a suspected puerperal infection, treated by amoxicillin and metronidazole.

6

Her second child as born at the Arrowe Park Hospital on 2 nd May 1994, following artificial rupture of the membranes a few days after the due date. Thereafter Mrs Loraine suffered puerperal depression.

7

Her third child was born at the Arrowe Park Hospital on 11 th August 199A scan taken in mid-pregnancy, on 14 th March 1997, revealed a fibroid measuring 5.2 cm by 4.8 cm on the posterior uterine wall. The fibroid was detected again at 28 weeks when it was measured at 5.1 cm by 3.7 cm. The infant's lie was found to be transverse from 33 to 36 weeks but at the end of 37 weeks of pregnancy his lie had become cephalic. Further ultrasound examinations, conducted on 20 th June and 11 th July 1997, confirmed the presence of the fibroid in Mrs Loraine's cervix but detected no change in its size or location. On Mrs Loraine's admission to hospital on 8 th August 1997, with Braxton Hicks contractions, the foetal head was found to be displaced. A request was made for a scan. The request noted a high head and commented or suggested: “fibroid obstructing foetal head”. A further ultrasound examination was made. The sonographer reported

“The fibroid in the posterior wall measures 5.5cm and does appear to extend below the level of the foetal head”.

Subsequently it was confirmed that the posterior fibroid was below the foetal head. On 11 th August 1997 Mrs Loraine was readmitted to hospital with established labour and delivered a healthy male child.

8

On 23 rd November 1998 Mrs Loraine delivered her fourth child at Arrowe Park Hospital. The records of this pregnancy make no reference to a fibroid. An ultrasound scan was conducted on 18 th August 1998, at the gestational age of 25 to 26 weeks, when the stomach of the foetus was not visualised. A further scan was performed on 21 st August 199At 38 weeks the presentation of the foetus was a double footling breech. The responsible consultant, Mr Murray, attempted external cephalic version, to turn the infant to the normal presentation for delivery but could achieve only a transverse lie. By 17 th November 1998 the infant had spontaneously achieved cephalic presentation. Mrs Loraine proceeded to a successful delivery six days later.

9

Mrs Loraine's fifth pregnancy, culminating in the birth of her son Stephen on 22 nd August 2000, is the subject of this litigation. The history of that pregnancy is as follows.

10

By letter dated 13 th April 2000 Mrs Loraine's general practitioner referred her to Mr Murray at Arrowe Park Hospital. The letter stated in part that Mrs Loraine's fundus was of 20 weeks' size and that Mrs Loraine requested listing for sterilisation after the birth of this child.

11

The hospital's booking-in summary, apparently entered on the computerised record on 20 th April 2000, contained the following entries: “Past Medical History: laparoscopy, tonsillectomy, post-natal depression, on Prozac postnatally 2 nd baby. Family History: Father of this child: None other relevant family history. Maternal uncle and brother Downes [sic] syndrome. H/O twins both side family. Maternal mother high bp.” The date of Mrs Loraine's last menstrual period was stated to be “28/11/99 certain”. On that premise, the expected date of her confinement would be 3 rd September 2000. Under the heading of Obstetric History the only complication listed for Mrs Loraine's third pregnancy was “UTI”, signifying a urinary tract infection. No mention was made of the fibroid in the posterior wall detected and monitored in the third pregnancy.

12

In response to a request for a “routine 20-week scan” an ultrasound test was made on 28 th April 2000. The examination showed that heart-beat, limb movement, stomach, bladder, abdominal wall, spine and head all appeared normal. There is no indication that the sonographer had been alerted to the existence or risk of a fibroid, or that she looked for one or discovered one. Nor was there any mention of a footling breech presentation in the fourth pregnancy.

13

On the same date Mrs Loraine was examined. The notes stated in part “Late booking – 21/40. See at 34/40”. From this we may infer that the doctor or midwife conducting the investigation took the view that Mrs Loraine was in her twenty-first week of pregnancy and that she should return in the thirty-fourth week.

14

Mrs Loraine was seen at her general practitioner's surgery on 17 th May, 14 th June 28 th and 12 th July, on each of which occasions the presentation of the infant was recorded as “ceph free”, by which we must understand that the baby's head was not yet engaged.

15

However on 28 th July 2000, when her pregnancy was of thirty-four weeks and five days, the presentation of the infant was recorded as “oblique”, signifying that the baby was lying in the womb in a position somewhere between vertical (or longitudinal) and horizontal (or transverse). The corresponding comment read “In view of oblique lie see 36/40” (that is, in the thirty-sixth week of pregnancy).

16

Mrs Loraine was seen again on 2 nd August 2000 when the infant's presentation was again recorded as “oblique”. The comments include “Advised re SROM” which denotes spontaneous rupture of membrane. Presumably the advice given was that in the event of such a rupture, Mrs Loraine should come to the hospital immediately.

17

Mrs Loraine was next seen on 11 th August 2000, when she was thirty-six weeks and five days pregnant, the presentation of the infant was again recorded as “oblique”. The midwife's comments include the following entries “Transverse lie. Dr review.” Different handwriting, apparently that of a junior doctor, continues “U/S performed for presentation. Footling breech. Blood taken for FBC & bile acids. D/W Mr Murray ? appointment next week.i/c blood results & ?ECV”. That note indicates that an ultrasound test had been conducted and had revealed that the infant was in footling breech presentation; that blood had been taken for a full blood count; and that at the appointment in the following week consideration should be given to the blood tests and to altering the lie of the infant by external cephalic version.

18

An ultrasound examination was indeed conducted on 11 th August 2000. The relevant passage of Mrs Loraine's statement reads as follows:

“The lady who did the ultrasound told me that I should make an appointment for the following week and to ensure that the appointment was with Mr Murray. She said he was going to try to turn the baby. The lady was very specific and said that I was only to see Mr Murray and no-one else. I confirmed that I would do this and made the appointment to see Mr Murray the following week.

I do not recall being given any pictures of the baby following this scan.”

19

On 18 th August 2000 Mrs Loraine was seen in the Arrowe Park Hospital, not by Mr Murray but by Senior House Officer, Dr Williams. The notes of the examination record that the infant's presentation was “Oblique/transverse. Head LUQ. Anterior placenta normally sited” That means that the infant was in the left upper quadrant of the uterus. Among the comments on the notes there is the entry “Probably unstable lie” and the words “D/W Mr Murray ? Outpatient care. See weekly...

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