Philip Harry Wisniewski and Another v Central Manchester Health Authority

JurisdictionEngland & Wales
JudgeLORD JUSTICE BROOKE,LORD JUSTICE ALDOUS,LORD JUSTICE ROCH
Judgment Date01 April 1998
Judgment citation (vLex)[1998] EWCA Civ J0401-9
Docket NumberQBENF 96/0572/CMS1
CourtCourt of Appeal (Civil Division)
Date01 April 1998
Between:
Philip Harry Wisniewski
(A Minor)
Respondent
and
Central Manchester Health Authority
Appellant

[1998] EWCA Civ J0401-9

Before:

Lord Justice Roch

Lord Justice Aldous

and

Lord Justice Brooke

QBENF 96/0572/CMS1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE THOMAS)

Royal Courts of Justice

The Strand

London

MR S GRIME QC, MR N BRASLAWSKY and MR G FORRESTER (1.4.98) (instructedby Hempsons, Manchester M2 3HR) appeared on behalf of THE APPELLANT

MR M REDFERN QC, MR A LYON and MR P A EDWARDS (1.4.98) (instructed by Messrs Alexander Harris, Sale, Cheshire M33 6FX)

1

Wednesday 1 April 1998

LORD JUSTICE BROOKE
2

This is an appeal by the Defendant health authority from a judgment of Thomas J sitting at Manchester on 2nd April 1996 when he directed that judgment be entered for the Plaintiff in this medical negligence action. Damages were agreed between the parties during the course of the trial, and the judge was only concerned to decide the question of liability.

3

At the centre of this litigation is a boy called Philip. He is now 10 years old. He was born at St Mary's Hospital Manchester in the early hours of the morning of 15th January 1988 and he has suffered from athetoid cerebral palsy from birth. In an admirably clear judgment the judge held that he suffered irreversible damage to his brain in the 13 minutes immediately prior to his birth at 5.40 am because as he moved down the birth canal the umbilical cord was wrapped round his neck and had a knot in it. He was effectively being strangled. His mother had been admitted to hospital at 2.50 am, less than 3 hours earlier, and the judge held that if her care had not been negligently mismanaged, a doctor would have carried out an artificial rupture of the membranes (ARM) shortly after 3.40 am, and such an exercise would inevitably have disclosed the presence of a substance called meconium. This discovery would have led to the child being born by caesarean section, thus obviating the hazards of birth down the birth canal.

4

The Defendants' case both at trial and in this court is essentially that there was a respectable school of medical practitioners who would not have moved immediately to investigate intervention at the sign of possible trouble which revealed itself at 3.40 am and that by the time any further trouble signs appeared it would have been too late to perform a caesarean. It is therefore said that the judge did what the House of Lords in Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 has again very recently affirmed that he must not do, which was to substitute his own assessment of what would have been an appropriate standard of care for the standard considered appropriate by a responsible body of skilled medical opinion. There are two further issues in the appeal, one connected with the judge's positive finding, in the absence of the relevant doctor from the trial, as to what he would have done if he had attended his patient at 3.40 am, and one connected with issues of causation.

5

Philip's mother had given birth to her first child, who is a healthy boy, in 1985. She had been admitted to the same hospital for four days towards the end of that pregnancy with high blood pressure. A trace of protein in her urine had indicated pre-eclampsia, but further testing had eliminated this possibility.

6

For her second pregnancy, when she was 31 years old, the expected date of delivery was 7th January 1988. Five days later high blood pressure was disclosed at a routine check-up and she was admitted to hospital overnight. This helped her blood pressure to return to normal. The following evening (14th January) she began to feel mild contractions, and her husband took her to St Mary's Hospital in the early hours of 15th January, arriving there at about 2.50 am. St Mary's is a major teaching hospital with a specialist obstetric unit.

7

The relevant staff on duty that night were Sister Brockbank, the midwife sister on duty, and Dr Renninson, the resident senior house officer ("SHO") on call. No other member of the hospital's staff figures in this story until a number of people came on the scene during the events surrounding Philip's birth about three hours later. Sister Brockbank had qualified as a SRN in 1974 and as a midwife in 1978. She had served on the staff of this hospital since 1979 and was promoted to midwife sister in 1982. She had had a lot of practical experience as a midwife, since in an average week the hospital had 40-50 mothers in labour. Dr Renninson, on the other hand, had qualified as a doctor at Manchester University as recently as 1985. After obtaining experience at two other local hospitals as a house physician and house surgeon between August 1985 and July 1986, he had had six months experience as a SHO in obstetrics and gynaecology at one of those other hospitals, and had then come to St Mary's Hospital as a SHO in obstetrics and gynaecology in February 1987. At the time these events took place, therefore, he had had 17 months experience in this speciality, which included 11 months experience of managing patients on delivery suites.

8

The Defendants faced the difficulty that the Plaintiffs' solicitors' letter before action was not written until over three years after Philip was born (9th April 1991), the writ was not served for another 21 months (21st March 1993), and the trial of the action started more than eight years after Philip's birth. In those circumstances it is hardly surprising that Sister Brockbank told the judge that she could not recall what had happened prior to the actual delivery (although she did remember the delivery itself because it was so rapid) and Dr Renninson said in a written statement that he had no independent recollection of his involvement in the management of this case at all. By the time of the trial Dr Renninson had obtained an appointment at a cancer centre in Australia, and he did not return to England to give evidence at the trial, a matter which evoked adverse comment from the judge to which I will refer in due course. For the events prior to delivery Sister Brockbank was constrained to try and reconstruct the history of what had happened from the entries in the admission records and other records and from her usual practice.

9

Soon after Mrs Wisniewski was admitted Sister Brockbank carried out an abdominal examination. She recorded the foetus heart beat as 160 and regular and the position of the foetus as a cephalic presentation with the head 3-4/5ths palpable. The contractions were noted as irregular. At 3.05 am she carried out a vaginal examination. She recorded that the cervix was 1-2cm dilated, that the head was 3cm above the ischial spines, and that it bobbed out of the pelvis as she was making her vaginal examination. She said she would not have pushed the foetus: the head, which was in the pelvic rim and not completely free, would have just moved at her touch. She considered that Philip's mother was a normal patient in niggling or early labour and arranged for her to be taken to the pre-delivery room.

10

At 3.10 am she started electronic monitoring of the foetal heart rate using a Corometric monitor. This monitor displayed a digital readout of the foetal heart beat and recorded both the heart beat and the contractions on a cardiotachograph (CTG) trace. Between 3.10 am and 3.40 am the trace showed a foetal heart rate baseline of between 170 beats per minute (bpm) and 175 bpm, rising to 180 bpm, but not dropping below 160 bpm. The trace showed that the beat to beat variability was 5 bpm, which was considered to be at the bottom end of normal.

11

During this period there were two early decelerations in the foetal heart rate when the rate fell to 130 bpm (at 3.23 am) and 110 bpm (at 3.40 am) although it rapidly recovered on both occasions. The Plaintiff's case stands or falls by the contention put forward by his expert witnesses that the early deceleration identified on the CTG trace at 3.40 am called for investigative intervention at that stage and that to adopt a policy of waiting to see if there were any further indications of trouble would have been negligent.

12

There is a note made by Sister Brockbank in the admission record against the time of 3.40 am which stated, after noting the CTG readings:

"Dr Renninson informed. Patient to remain in (central delivery unit)—observe.

Patient may mobilise."

13

The judge found that Sister Brockbank went to speak to Dr Renninson at this time, and that he did not attend Mrs Wisniewski or examine her or see the CTG trace himself. Instead, he probably assented to Sister Brockbank's advice on what to do. Sister Brockbank had told the judge that she had decided to contact Dr Renninson mainly because of the quick foetal heart beat (tachycardia)—in 1988 the normal range for a foetal heart rate was considered to be between 120 bpm and 160 bpm—but also in relation to the deceleration to 110 bpm at 3.40 am. There were some inconsistencies in her evidence, and the judge eventually held that she had failed to tell Dr Renninson about the tachycardia, since this was not expressly mentioned in Dr Renninson's statement. He went on to hold that the Defendants were negligent in that Dr Renninson should have attended and examined Mrs Wisniewski at this time. He found that there was nothing else happening in the hospital that night which properly prevented the attendance of Dr Renninson or another doctor, or excused his failure to attend. These findings are not challenged by the Defendants on this appeal. They understandably take the view that whether this omission was caused by the midwife not telling the doctor the full story or by the doctor,...

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