Miss Victoria Richins v Birmingham Women's and Children's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Emma Kelly |
| Judgment Date | 12 April 2022 |
| Neutral Citation | [2022] EWHC 847 (QB) |
| Docket Number | Case No: E90BS740 |
| Court | Queen's Bench Division |
[2022] EWHC 847 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil and Family Justice
The Priory Courts
33 Bull Street
Birmingham B4 6DS
HER HONOUR JUDGE Emma Kelly
Case No: E90BS740
James Marwick (instructed by Enable Law) for the Claimant
John Coughlan QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 7 th, 8 th, 9 th, 10 th March 2022
Approved Judgment
This is the judgment upon the issue of liability only in this clinical negligence claim.
By her claim issued on 4 th July 2018, the Claimant seeks damages for losses arising out of the stillbirth of her son, Kyron, on 7 th July 2008 whilst she was an inpatient at the Defendant's Birmingham Women's Hospital (“the Hospital.”) The Claimant's case is that she would not have suffered nervous shock and consequential Post Traumatic Stress Disorder and Obsessive Compulsive Disorder had Kyron been born alive. The parties have agreed quantum, subject to liability, in the sum of £145,000 gross of CRU but net of a previous settlement of a dispute as to limitation, which was compromised on a 50/50 basis.
Background
The following chronology is not in dispute.
In January 2008 the Claimant (date of birth 5 th May 1988 and then aged 19) attended the early pregnancy assessment unit and a single viable intrauterine pregnancy was identified. It was the Claimant's first pregnancy.
The Claimant was booked to give birth at the Hospital with an estimated date of delivery of 16 th September 2008.
Initially the pregnancy was unremarkable. Scans took place on 7 th March 2008 and 1 st April 2008 with no concerns arising. Midwifery reviews at 16+3 and 25+5 weeks raised no material issues.
On 16 th June 2008 the Claimant self-referred with a history of no fetal movement for 48 hours. Maternal observations were unremarkable. Cardiotocography (“CTG”) was undertaken, which identified a deemed baseline with accelerations present and no decelerations, and fetal movements were felt.
On 24 th June 2008 the Claimant attended a further routine appointment. She had a scan on the Hospital's Day Assessment Unit (“DAU”). The baby's abdominal circumference was noted to be below the 10 th percentile. This prompted obstetric review resulting in a transfer to consultant led care and a recommendation for two-weekly scans.
On 27 th June 2008 the Claimant self-referred with concerns over diminished fetal movement. A CTG was reassuring and the Claimant was booked in for a follow-up appointment in the DAU on 1 st July 2008. The CTG on 1 st July was again satisfactory and another appointment booked for Friday 4 th July 2008 to include a further CTG.
On 4 th July 2008 the Claimant attended her appointment on the DAU. By this stage she was 29+4 weeks' gestation. Examination revealed pregnancy induced hypertension (“PIHT”) with raised urea levels, together with an absent end diastolic flow on a Doppler scan. There continued to be intrauterine growth restriction (“IUGR”). A decision was made to admit the Claimant to the Hospital as an inpatient. The plan was for steroids to be administered for fetal lung maturation, anti-hypertensives to be given and there be regular observations including daily CTG monitoring.
On Saturday 5 th July 2008 a midwife recorded that the Claimant would be seen by a paediatrician who would discuss the possibility of an early delivery. The Claimant was seen by a paediatrician around 1440 hrs and the consequences of an early delivery were discussed including warnings as to what treatment the baby may need.
On Sunday 6 th July 2008, at approximately 1035 hrs, a registrar review occurred. The Defendant contends an earlier midwife review also occurred at approximately 0900 hrs when the Claimant's urine was tested and noted to be negative and a satisfactory CTG performed.
The Claimant makes no complaint as to the standard of care received up to this point.
Summary of the Claimant's case
In summary, the Claimant's pleaded case is that:
i) At about 1700 hrs on Sunday 6 th July 2008 she began to feel unwell. She told midwife Rosie Mackintosh (then known as Rosie Hemming) (“Midwife Hemming”) who took her blood pressure, undertook CTG monitoring and said there were no problems. At 1800 hrs Midwife Hemming noted epigastric pain and administered paracetamol. The Claimant's urine was not tested.
ii) At approximately 2100 hrs the Claimant started to experience more symptoms: she did not feel right, her stomach felt tender, she had pain under her ribs on the right side, had lower back pain, breathlessness, kept going hot and cold with clammy hands, could not get comfortable and had heartburn. The Claimant reported these symptoms to midwife Valerie Morton (“Midwife Morton”) who said it was just the baby pushing her ribs out and heartburn. Midwife Morton gave the Claimant some Gaviscon.
iii) The Claimant informed Midwife Morton of her symptoms again. Midwife Morton did not review the Claimant again at this stage. A lady in the next bed shouted out “can somebody help her, she's clearly not well.”
iv) At approximately 2300 hrs the Claimant's symptoms were continuing and she felt much worse. Midwife Morton checked her blood pressure, listened to the fetal heart rate and gave her another dose of paracetamol. Midwife Morton reiterated that it was just heartburn and the baby pushing the Claimant's ribs out.
v) Overnight the Claimant remained unwell with significant pain to her abdomen and back. She felt very unwell but unable to seek help as her mind was fuzzy, she was drowsy, tired and too unwell to move.
vi) At approximately 0645 hrs on 7 th July 2008 the Claimant had searing pain in her stomach and suffered a massive placental abruption. At 0710 hrs intrauterine death was recorded.
The Claimant asserts that the midwifery care and treatment from 1800 hrs onwards on 6 th July 2008 fell below the required standard. I shall return to the allegations of breach in due course.
The Claimant's case is that but for the breach of duty, she would have been referred for obstetric review leading to probable transfer to the delivery suite on the evening of 6 th July 2008 with a subsequent diagnosis of pre-eclampsia. The Claimant contends that Kyron would have been born alive and she would not have suffered the psychiatric injury.
Summary of the Defendant's Case
The Defendant takes issue with the Claimant's factual account of events from 1700 hrs on 6 th July 2008 and, in particular, her case as to her developing symptomatology. The Defendant's pleaded case is as follows:
i) It is not admitted that the Claimant complained of feeling unwell at 1700 hrs.
ii) At approximately 1800 hrs it is admitted that the Claimant complained of epigastric pain to Midwife Hemming. The Claimant's blood pressure and a CTG were normal. No paracetamol was administered at that time.
iii) At approximately 2300 hrs Midwife Morton reviewed the Claimant when undertaking a drug round. She administered paracetamol. The Claimant complained of rib pain which Midwife Morton explained may be rib flare. The Claimant's blood pressure was normal, fetal heart rate was normal and Midwife Morton recorded that the Claimant was asymptomatic. It is not admitted that the Claimant told Midwife Morton she felt much worse.
iv) The Defendant makes no admission as to whether the Claimant remained in significant pain overnight and felt very unwell. There is no record of the Claimant complaining of symptoms overnight.
v) It is admitted that a massive placental abruption probably occurred at approximately 0645 hrs on 7 th July 2008.
Following the oral evidence, the Defendant concedes that the Claimant had been given paracetamol by Midwife Hemming at the 1800 hrs intervention. Further, the Defendant now accepts that the Claimant received Gaviscon later in the evening although from Midwife Hemming not from Midwife Morton.
The Defendant denies there is any breach of duty on its own factual case. The Defendant does however admit that, if the Court accepts the Claimant's factual case, breach of duty is established.
The Defendant denies causation, regardless of whether the Court finds in favour of the Claimant or Defendant's factual case. The Defendant contends that, even if the Claimant's case on breach of duty is established, sadly the death of Kyron would not have been avoided.
Issues
The issues for determination can be summarised as follows:
i) How are the conflicts of fact to be resolved as to how events unfolded from approximately 1700 hrs on 6 th July 2008 to abruption at around 0645 hrs on 7 th July 2008?
ii) Subject to the findings of fact, can the Claimant prove breach of duty in the way that the midwives administered care and treatment from approximately 1700 hrs on 6 th July 2008?
iii) If the Claimant can prove breach of duty, what would have occurred but for that breach of duty? In particular, can the Claimant establish medical causation to the effect that Kyron's death would have been avoided?
The lay witness evidence
The court heard oral evidence from the Claimant, Ms Debbie Richins (the Claimant's mother), Ms Jemma Fulford (the Claimant's friend) and Ms Simone Hilton (a patient in the bed in the Hospital next to the Claimant on the 6 th/7 th July 2008.) On behalf of the Defendant, the court heard oral evidence from Midwife Hemming and Midwife Morton.
Lay witness evidence for the Claimant
The Claimant
The Claimant confirmed the content of her witness statement dated 24 th October 2020. In her statement she described starting to feel unwell at about 1700 hrs on the 6 th July 2008 and telling the midwife who said she would fetch her some paracetamol. She accepted a CTG was...
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