Re (A minor by her mother and Litigation Friend LE) (First Claimant) LE (Second Claimant) DE (Fourth Claimant) v Calderdale & Huddersfield NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goss |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWHC 824 (QB) |
| Docket Number | Case No: HQ14X01554 |
| Court | Queen's Bench Division |
| Date | 12 April 2017 |
[2017] EWHC 824 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Goss
Case No: HQ14X01554
and
and
Mr William Featherby QC and Miss Vanessa Cashman (instructed by Addies) for the Claimant
Mr John Whitting QC (instructed by Hempsons) for the Defendant
Hearing dates: 21 st– 24 th March 2017 inclusive and 28 th March 2017
Introduction
RE (the First Claimant) was born on 22 nd April 2011 at 39 weeks' gestation at the Calderdale Birth Centre ('the CBC'), a midwifery led unit under the control and management of the Defendant. She weighed 4.7 kg (10 lb 6 oz.). She brings a claim by her mother and litigation friend, LE (the Second Claimant), for personal injury arising out of the circumstances of her birth. The Second Claimant together with the Fourth Claimant, DE, who is the Second Claimant's mother and was present at the birth, bring claims for personal injury caused by 'nervous shock'. RE's father, AE, is the Third Claimant but does not pursue his claim.
It is common ground that RE suffered an acute profound hypoxic ischaemic insult in the minutes immediately prior to and following her delivery. The Claimants' case is that there was a negligent delay in the management and delivering of RE. I am required to determine the issue of breach of duty, causation no longer being materially in issue, and liability in respect of the Second and Fourth Claimants' claims for damages for nervous shock.
There have been considerable problems with the Defendant's disclosure in these proceedings. It is not necessary to identify the detail of what occurred and why. On any view, the Defendant, in breach of its duty under CPR Part 31 PDB §7, destroyed the medical records after the claim began and only copies are now available, which are unsatisfactory in a number of respects. The Defendant "digitised" the originals on 29 th September 2015 then destroyed them on 18 th January 2016. The Defendant's Legal Services Manager, Ms Natalie Jooty, provided a witness statement dated 9 th March 2017 in relation to the disclosure issues and was the first witness to give evidence. She was clearly confused as to when she signed the Statement of Truth on the Defendant's List of Documents; eventually she accepted it was correctly dated 6 th February 2015. Consequently, her statement to the effect that the documents had already been digitised was incorrect. She explained that her subsequent informal enquiries revealed that a named individual who was then the Legal Services Manager bore responsibility for not ensuring the records were returned as they should have been after being digitised. However, I am satisfied that the records were destroyed by reason of negligent failings by the Defendant either by individual failures and/or in their system or systems and not as a result of a deliberate attempt to destroy evidence in this claim.
Nevertheless, the position now is that the integrity of the records cannot be guaranteed. The photocopies, some of which are in colour and some in monochrome, are not of good quality for forensic purposes and there are puzzling differences between some of the copies of the original documents and the digitised version. What is of particular concern is the inability to examine entries on the contemporaneous medical records, scrutinise entries that have clearly been over-written to determine what was originally recorded and compare the pens and inks used at various important points in the records.
Medical records are neither self-proving nor automatically admissible: see Buxton LJ's remarks in Denton Hall Legal Services v. Fifield [2006] Lloyd's Rep Med 251. The Claimants expressly put the Defendant on notice that they must prove any medical records on which they relied. In fact, the only witnesses providing evidence of the truth of their respective contributions to the medical records are Midwives Garvey and Taylor and Dr Emovon.
The Claimants contend that where there are ambiguities or uncertainties on the face of the documents, the court ought to resolve them in the Claimants' favour. Given that the Defendant failed in their duty to maintain the records, where, by reason of the quality of the relevant record now available compared to what would have been expected to have been clearer on the originals, I consider that it is appropriate to proceed on the rebuttable assumption that my reading of the entries should be the most favourable to the Claimants that is reasonable on the face of the available documents. Mr Whitting QC, on behalf of the Defendant, has not contended otherwise.
Background
RE is the Second Claimant's second child. Her first child, a girl, was born on 8 th June 2007 at 39 weeks' gestation and weighed 7 lb 4 oz. (3.288 kg). It was an uneventful pregnancy. When, in August 2010, she became pregnant again, she and the Third Claimant decided that their second baby could be delivered at the Huddersfield Birthing Centre ('HBC'). She suffered from very bad morning sickness, constantly vomiting, and developed lower back pain. On 3 rd December 2010, following severe pain in her pubic bone, her GP diagnosed her as suffering from SPD (symphysis pubic disorder), for which she attended hospital for physiotherapy. Her girth was significantly larger than it had been during the comparable stages of her pregnancy with her first child. On 4 th February 2010, by which time she was 28 weeks pregnant, she attended an antenatal appointment with her midwife, Amanda Fenn. Her tummy measurement was large for her date, being appropriate for a 32-week pregnancy. She was tested for maternal diabetes but blood tests came back as normal. She was referred to the Huddersfield Royal Infirmary where she was seen by an Obstetric Registrar on 18 th February 2011. Her evidence was that she just remembered being told that she was having a big baby. No problems were recorded. On 22 nd February 2011 a growth scan recorded her fetus as being just above the 90 th centile. A month later, on 24 th March 2011, on another antenatal visit, a scan showed that the fetus was over 36 cm which was significantly above the 90 th centile. She was reassured by the registrar about the size of her baby, who also recorded that no induction of labour was indicated, she should be treated as normal and was referred back to the community midwife. Because of the large size of her baby, the Second Claimant rejected the community midwife's reassurance that there was no reason why she couldn't deliver at the HBC, and she and the Third Claimant chose to go to the CBC which had an 'alongside' unit should obstetric assistance be required. There were further appointments with the community midwife at the hospital on the 4 th, 15 th and 21 st days of April 2011. The Second Claimant was suffering pelvic discomfort and was "aghast" at the prospect of having a baby weighing more than 10 lb (4.54kg). She was reassured that "big babies just slip out". On the morning of 22 nd April 2011 her 'waters broke' at 06.15 hours; she telephoned the CBC just over an hour later and spoke to Midwife Kate Garvey, who enquired why she wasn't going to Huddersfield. On being informed that she was having a big baby, Midwife Garvey said she had delivered more than 300 babies and was, according to the Second Claimant, somewhat dismissive. She was told to come to the unit. At 10.00 hours, the Second, Third and Fourth Claimants arrived at the CBC. RE was born at 16.53 hours with the assistance of Dr Emovon, the Obstetric Registrar who had been summoned to the delivery room due to difficulties with the delivery. Midwife Jayne Taylor and Healthcare Assistant Julie Halstead (formerly Conyers) were also present, having been summoned to help at 16.45 hours. RE was pale, floppy and without respiratory or heart rate. Resuscitation was commenced and a heart rate was noticed after 10 minutes and a first gasp after 12 minutes. Both the Second and Fourth Claimants suffered post-traumatic stress disorder. Causation and quantum have been agreed in respect of both claims, subject to the issue of whether they are entitled to recover damages either as primary or secondary victims.
Issues
The Claimants' case is that
(a) RE's delivery should have been achieved earlier than it was;
(b) Specifically, RE's head was born but there was shoulder dystocia which delayed the delivery of her body for longer than was appropriate.
(c) Such delay was a consequence of failings by the midwives and obstetricians in both the planning for the birth and in the delivery.
The issues have narrowed considerably. It is now accepted on the Claimants' behalf that the CBC, being an 'alongside' unit, had access to the requisite appropriate obstetric expertise, if required. The remaining controversial ones relevant to determination of the issues are: —
(i) The appropriate measures that should have been taken or put in place prior to the delivery;
(ii) The actions of Midwife Garvey in relation to the second stage of labour; in particular, permitting the Second Claimant to deliver on the floor and when the delivery of RE's face was slow;
(iii) The actions of Midwife Garvey, having summoned the Obstetric Registrar (Dr Emovon), in preventing him entering the delivery room and the latter's failure to enter the room in any event;
(iv) The Defendant's liability for claims for damages for nervous shock.
Witnesses
Evidence by statements and orally at the hearing was received from the Second, Third and Fourth Claimants, Midwives Garvey and Taylor and Dr Emovon. Julie Halstead's statement made on 29 th May 2015 was admitted in evidence but her mental health...
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