Sebastian Webster (a child and protected party, by his mother and Litigation Friend, Heather Butler) v Burton Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Flaux,Lord Justice Jackson |
| Judgment Date | 13 February 2017 |
| Neutral Citation | [2017] EWCA Civ 62 |
| Docket Number | Case No: B3/2015/0327 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 2017 |
[2017] EWCA Civ 62
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTIC
QUEEN'S BENCH DIVISION (NOTTINGHAM DISTRICT REGISTRY)
HH Judge Inglis
Claim No: 03NG90445
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Simon
and
Lord Justice Flaux
Case No: B3/2015/0327
Satinder Hunjan QC (instructed by Freeths LLP) for the Appellant
Martin Spencer QC (instructed by Weightmans LLP) for the Respondent
Hearing date: 31 January 2017
Approved Judgment
Introduction
This appeal is against the judgment of His Honour Judge Inglis dated 28 November 2014 in which he found in favour of the respondent hospital on the issue of liability (causation), breach of duty having been admitted.
The appellant was born at 16.09 on 7 January 2003 at the Queen's Hospital, Burton on Trent with cerebral palsy. He has profound physical and cognitive impairment. It is common ground that his disabilities were caused by an injury to his brain which occurred in a period of between 72 and 48 hours prior to his delivery, and that if he had been delivered before 16.09 on 4 January 2003 he would have avoided brain injury and his consequent disabilities. The injury was a hypoxic-ischaemic insult to the brain caused by a relatively short period of cord compression. If it had been longer than a relatively short period, he would have died.
The appellant was Ms Butler's first child and her early antenatal care had been uncomplicated. A dating ultrasound scan on 20 May 2002 gave an estimated date of delivery of 27 December 2002. On 13 August she underwent a 20-week anomaly ultrasound scan, which showed measurements within normal limits but which also showed a low lying placenta. A note was made 'needs re-scan about 34/52'. Following this she was transferred to the care of the respondent's antenatal department.
On 31 October 2002 (at 31 weeks and 6 days) she was admitted to the hospital with vaginal spotting or bleeding and a persistent headache. A doctor wanted to admit her for 24-hour observation and explained the implications of possible placental abruption, but she did not want to stay in hospital and signed a discharge form. She explained in evidence that she suffered from anxiety, had been reassured by the staff and felt that for her own wellbeing she would be better off at home since she lived close to the hospital.
An ultrasound scan was carried out on 18 November 2002 (at 34 weeks and 3 days). The scan was arranged because of the previous observation that the placenta was low and therefore in a difficult position. The scan allayed that particular concern but gave rise to different issues.
First, measurements of the head and abdominal circumferences were noted to be 305mm and 272mm respectively. The head circumference was at around the 25th centile and the abdominal circumference at around the 3rd centile. The foetal weight was estimated at 1.9kg from these measurements. Although the sonographer who carried out the ultrasound scan recorded that there was a range of error in the estimate of foetal weight of '+/—15%', the measurements of the head circumference and the abdominal circumference were the actual measurements. The foetus was therefore small for gestational age ('SGA').
Secondly, there was asymmetry in the sense that the abdominal circumference was significantly less proportionately than the head circumference.
Thirdly, there was polyhydramnios (excess liquor). The sonographer drew attention to this by recording 'depth of liquor = 86mm (normal range 20mm–70mm)'. In the light of the polyhydramnios, the sonographer examined the foetal lips and stomach to see whether there were abnormalities which might throw light on the cause of polyhydramnios.
At this time Ms Butler was under the care of Mr James Hollingworth, the Consultant Obstetrician and Gynaecologist at the respondent hospital. When he saw Ms Butler following the ultrasound scan he recorded 'Well — scan ? no further PV loss see at 41 weeks'. The note indicated a review after 41 weeks with a view to induction. The relevant guidelines indicated that labour should be induced at 41–42 weeks if it has not begun spontaneously.
Neither following the ultrasound scan on 18 November 2002 nor at any time prior to the appellant's birth did Mr Hollingworth note that the foetus was small for gestational age, nor did he note the recorded asymmetry nor the polyhydramnios. He treated the pregnancy as being without these features.
It is agreed that he acted negligently in failing to arrange further ultrasound scanning (every two weeks) in view of the foetus being small for gestational age.
The main issues before the Judge were what would have been shown if further ultrasound scanning had taken place and what should have happened as a consequence. Before turning to those questions, it is convenient to continue with the history.
On 4 December, the midwife at the antenatal clinic recorded that the 18 November scan had shown polyhydramnios.
On 26 December Ms Butler went into hospital because she felt unwell. She was kept in and observed overnight. Friday, 27 December was the expected date of delivery, as established early on in the pregnancy. At about 10.00 that morning she was seen by Mr Hollingworth. His note reads: 'BP settled, feels well CTG ?, check urine for protein home antenatal clinic as planned.'
Ms Butler's evidence was that she felt a bit better on 27 December, but that she did not particularly want to go home and, since it was her due date and she felt so unwell, she had assumed that she would be delivered. She recalled Mr Hollingworth saying that he was on duty over the weekend and expected to see her back then. Perhaps unsurprisingly, Mr Hollingworth did not recall the conversation, but said that, if he had written 'feels well', this would have recorded the short conversation he had with her.
The focus of the claim and the argument on this appeal rested on the decisions made on 27 December.
In summary, the appellant's case is that Mr Hollingworth should have offered Ms Butler the possibility of induction of labour at term on 27 December; and that if he had done so the appellant's brain damage would have been avoided. The respondent's case is that, if the two omitted ultrasound scans had been carried out (as it accepts they should), they would have provided reassurance. The SGA, the polyhydramnios and (to the extent that it still existed) the asymmetry should not have given rise to the need for any heightened vigilance or advice about the dangers which might be avoided by induction.
As noted above, the appellant was born on 7 January 2003 following induction.
The judgment below
In his very full and careful judgment, Judge Inglis made a number of findings which are material to the present appeal, and it is convenient at this point to identify three passages.
The first passage (at §26) relates to Ms Butler's evidence.
Having considered her evidence … I think that had the mother been advised that she should proceed to induction or that there were increased risks in waiting until 6 or 7 January, she would have wanted to be delivered. I think she was fed up with the pregnancy and with the lack of well-being and it was the due date that she had in mind. She would not have wanted it to be put off, since the prospect of induction was looming in any event.
The second passage (at §33) relates to Mr Hollingworth's understanding.
Mr Hollingworth is an experienced obstetrician and gynaecologist. He was not justified in simply categorising the 18 November scan as normal. That he did so leaves the court in the unattractive position of having to find what further fortnightly scans would have shown when their absence is caused by his negligence. Mr Hollingworth's principal concern was foetal nutrition for which he relied heavily on the doppler reading [the ultrasound of the foetal bloodflow] and would have continued to do so with subsequent readings. Although he said he understood the issue raised by the combination of polyhydramnios and an SGA foetus I find that he did not think that that combination shown on the 18 November scan was relevant at the time to the management of the pregnancy. Whatever he understood at the time about the combination as an indicator of possible problems that was not an understanding that management should be affected by it. If anything he was encouraged by the polyhydramnios, since the opposite, oligohydramnios, is the more frequently encountered problem, which may be a bad sign in that the foetus may not be growing as expected … Moreover, if he had the combination of factors present on the 18 November 2002 in mind as having significance for management his note would I think have said so and it does not. The main focus of Mr Hollingworth's attention was on foetal development as evidenced by the normal doppler which demonstrated that there was not a placental problem. There were no other abnormalities in the foetus itself which were apparent, and none in the case to which he attached importance, hence the tick in his note.
The third passage (at §§86–88) consists of the Judge's views about the expert evidence of Professor Soothill (called by the appellant) and Mr Tuffnell (called by the respondent) and his material conclusions. In setting out §§86 and 88 I have divided them up with capital letters for ease of reference. These do not appear in the original.
86. [A] Since, as I have found in paragraph 33, Mr Hollingworth, though he may have had some understanding that the rare combination of SGA and polyhydramnios had...
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