Nilujan Rajatheepan (by his mother and litigation friend Sinthiya Rajatheepan) v Barking, Havering and Redbridge NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | McKenna |
| Judgment Date | 13 April 2018 |
| Neutral Citation | [2018] EWHC 716 (QB) |
| Date | 13 April 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15 C04398 |
[2018] EWHC 716 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE McKenna
(Sitting as a Deputy High Court Judge)
Case No: HQ15 C04398
Mr Christopher Hough (instructed by Wiseman Lee LLP) for the Claimant
Mr Sebastian Naughton (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 19, 20, 21, 22, 26, 27 February 2018
Judgment Approved
HHJ
Introduction
Nilujan Rajatheepan, the Claimant, was born at the King George's Hospital in Goodmayes, Essex, (“the Hospital”) on 16 th July 2009 and he is now aged a little over eight and a half years old.
Barking Havering and Redbridge NHS Foundation Trust, the Defendant, is responsible for the care provided to the Claimant and his mother at the Hospital.
This claim relates to brain injuries suffered by the Claimant shortly after his birth. The Claimant's parents are Tamil refugees from Sri Lanka whose native language is Tamil and who were granted asylum in this country. The Claimant's mother, Mrs Sinthiya Rajatheepan, who is also his litigation friend, was born on the 2 nd June 1988 and came to this country in 2008. She was just over 21 at the date of the Claimant's birth and, it is said, at that time, spoke only a very few words of English. The Claimant's father is Sivarajah Rajatheepan, who was born on 27 th April 1977 and came to this country in 2000.
This Court is only concerned with the issues of liability and causation pursuant to the order of Master Roberts dated 6 th June 2016.
Background
The Claimant was delivered by caesarean section at 22.56 hours on Thursday 16 th July 2009. At birth, his condition appeared to be good with his APGAR scores and cord blood readings being normal and there were no concerns about him by either the consultant paediatrician who examined him or the midwife who performed the new born examination.
The Claimant and his mother were discharged from the Hospital at around 21:50 hours on Saturday 18 th July 2009. The formal discharge process was in fact completed by 14:00 but the Claimant and his mother remained in the Hospital until they could be collected by the Claimant's father who was working that day.
The following day at about 12:40 hours, the community midwife Ms Madigan arrived at the family home to discover that the Claimant was pale and lethargic and having not been fed since 21:00 hours the previous evening.
The Claimant was immediately transferred to the Hospital where he was described as unresponsive pale and floppy with reported seizures. Blood tests revealed raised insulin and low glucose. He was in a hypoglycaemic state and this hypoglycaemia has caused catastrophic brain injuries, leaving the Claimant suffering from cerebral palsy and with severely impaired physical and cognitive function which, it is common ground, were caused as a result of poor feeding.
The endocrinologists instructed by the parties are agreed that 12–15 hours of poor feeding would be sufficient to use up the normal reserves of energy and result in symptomatic hypoglycaemia. They agree that:
i) If the Claimant had not been discharged on the 18 th July 2009, his injuries would probably have been avoided;
ii) If the Claimant had been returned to hospital before 06.00 hours on 19 th July 2009, the damage would probably have been avoided;
iii) If the Claimant had been returned to hospital after 06.00 hours on the 19 th July 2009, some damage was unavoidable and;
iv) A transfer to hospital taking place at 08.30 hours would not have avoided damage but would have reduced the severity of the insult.
The claim originally asserted breaches of duty in relation to both the management of labour and the post-natal care. There was a partial admission of breach of duty in respect of the management of labour in that it has been admitted that the Claimant should have been delivered by about 18:45 hours on the 16 th July 2009, some four hours earlier than his actual delivery, but causation of injury flowing from that breach of duty remained in issue until a decision was made on the Claimant's behalf to abandon that aspect of the claim.
The Court is therefore only required to adjudicate upon the remaining part of the claim which, put simply, relates to the discharge of the Claimant and his mother on the evening of the 18 th July 2009. What is said in summary is that the Claimant's poor feeding was attributable to the Defendant's failure effectively to advise the Claimant's mother on proper feeding techniques and what to do if there was poor feeding, in the light of the very limited extent of her understanding of English and, on the facts of this case, the Claimant should not have been discharged on 18 th July 2009 in which case the damage would have been avoided.
The Defendant for its part contends that the Claimant's post-natal care before he left the Hospital was, on the face of the contemporaneous notes, routine and appropriate and breach of duty is denied.
Chronology
The relevant chronology can be shortly summarised as follows:
“ 7 th July 2009
Due date of delivery.
13 th July 2009
Mrs Rajatheepan attended at the Hospital but was told to return on the 16 th July 2009.
16 th July 2009
Mrs Rajatheepan was admitted to the Hospital at 10:15am by midwife Lucas
It was decided to deliver the Claimant by emergency caesarean section at 21:00 hours.
The Claimant was born at 22:56 hours.
The Claimant and his mother were transferred from theatre to a recovery room at 23:30 hours.
17 th July 2009
The Claimant and his mother were transferred to Japonica ward in the early hours.
The Claimant was discharged by the neonatal team.
18 th July 2009
Midwife Oriakhi conducted a discharge interview with the Claimant's mother between 1:30 and 2pm.
The Claimant and his mother were discharged home at 21:50 hours.
19th July 2009
The family home was visited by community midwife Madigan at 12:40 hours and the Claimant was found to be lethargic and hadn't been fed since 21:00 hours the previous evening and was taken back to the Hospital.”
The Legal Framework
It is common ground that the relevant legal test to be applied is that set out in Bollam v Frieren Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City of Hackney Health Authority [1998] AC 332.
In directing the jury in the Bolam case, McNair J said as follows at page 587:
“I myself would prefer to put it this way, that 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.”
In Bolitho, the House of Lords emphasised that McNair J had said that the practice in question had to be accepted as proper by a responsible body of medical men. Elsewhere in his judgment he had said that it must be regarded as acceptable by a reasonable body of opinion. Lord Browne-Wilkinson, who gave the leading speech, commented as follows at page 241:
“The use of these adjectives – responsible, reasonable and acceptable – all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or acceptable, will need to be satisfied that, informing their views, the experts have directed their minds to the question of comparative risks and benefits and reached a defensible conclusion on that matter.”
Later, at page 243, he continued:
“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and the benefits of adopting particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinion. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”
The Court was also referred by counsel for the Claimant to Montgomery v Lanarkshire Health Board [2015] UK SC 11 and the recent application of that Supreme Court authority in Thefaut v Johnstone [2017] EWHC 497.
It was not sought to suggest that this was a case involving treatment choice or informed consent. Reliance was placed on these decisions for their emphasis on the importance of dialogue. Thus in the Thefaut case, Mr Justice Green said as follows:
“58. Paragraph [90] of Montgomery is significant in shedding light on the modus operandi of communication. Two points emerge. First the centrality of “dialogue” is stressed. No doubt, in this day and age, dialogue can occur, for example, face to face, or by skype, or over the phone. A patient who suffers from a disability or who is abroad may engage in a perfectly adequate “dialogue” via electronic means. The issue is not so much the means of communication but its adequacy. Mr Peacock used the apt expression “adequate time and space” to describe the characteristics of a “dialogue” that satisfied the test in law.
59. The second point arising from paragraph [90] is the need to de–jargonise communications to ensure that the message is conveyed...
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