Whitehouse v Jordan
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON |
| Judgment Date | 05 December 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1205-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1972 W. No. 11378 |
| Date | 05 December 1979 |
[1979] EWCA Civ J1205-1
The Master Of The Rolls
(Lord Denning)
Lord Justice Lawton and
Lord Justice Donaldson
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
Birmingham District Registry
(Mr. Justice Bush)
MR. M. WRIGHT, Q.C. and MR. D. PERRETT (instructed by Messrs. Roper & Company) appeared on behalf of the Plaintiff (Respondent).
MR. I. KENNEDY, Q.C. and MR. B. HARGROVE (instructed by Messrs. Hempsons) appeared on behalf of the First Defendant (Appellant).
MR. I. MORRIS (instructed by Messrs. Hempsons) appeared on behalf of the Third Defendants (Appellants).
Being born is dangerous for the baby. So much so that an eminent professor in this case tells us that: "Throughout history, birth has been the most dangerous event in the life of an individual and medical science has not yet succeeded in eliminating that danger". He parodies the psalmist by referring to "the valley of the shadow of birth".
This has its legal consequences. It follows that, when a baby is still-born or dies soon after birth or is born damaged or deformed, that fact is no evidence of negligence on the part of the doctors or nurses attending the birth. It does not speak for itself. The maxim res ipsa loquitur does not apply. That was conceded here.
During the pregnancy this was regarded as a high-risk case. So much so that the mother was treated at the specialist Maternity unit of the Birmingham Maternity Hospital. That unit is held in the highest regard by the medical profession. The doctor in charge of the unit was Professor H.C, McLaren of international reputation.
The delivery was expected to be troublesome. A very good team was gathered for it. The child was delivered by a very able and promising senior registrar, Mr. Jordan. Soon afterwards he attained the status of a consultant. He was assisted by a good younger man, Dr. Skinner, and two midwives. Also there was the anaesthetist. At hand were the paediatricians to take over the baby. With that assembly of skill, you would not think that anything would go wrong on the medical side. Nor did it by their accounts. None of them noticed anything untoward at all. Their evidence was that Mr. Jordan skilfully carried out a "trial of labour" to see if the baby could besafely delivered by forceps. As a result of the trial, it appeared that it would not be safe for the baby. So Mr. Jordan decided to switch over to a Caesarean section: and that was performed most skilfully.
Yet despite all that skill and care, the baby was born with severe brain damage. The doctors diagnose him as suffering from "cerebral palsy and mental deficiency". He is now nearly ten years of age but he is no better than a baby of nine months. He cannot speak. He cannot think. He cannot sit up, or stand or walk. He cannot feed himself. He cannot control his bowels or his bladder. He can only swallow soft foods. He is a helpless cripple. He will need constant care and attention all his life.
Naturally enough his mother is greatly distressed. She toils day and night for him. The saddest part of it is that she blames it all on the hospital and particularly on. Mr. Jordan, the surgeon who delivered the child. Ever since the child was born, she and her husband have sought an inquiry. They invoked the aid of the press, the media and their Member of Parliament. When an inquiry was refused, she obtained legal aid to press the case against the hospital and the surgeon. It is sometimes said that you cannot get one medical man to give evidence against another: just as it is said that you cannot get one lawyer to give evidence against another. This case shows how wrong that is. In this case two of the most eminent obstetricians in the country have given evidence against the surgeon: and two equally eminent have given evidence for him. Eminent counsel have been engaged to press the case against him: and counsel equally eminent to defend him. The expense must have been colossal. All borne on both sides by thetaxpayers of this country.
Now I must go into detail. The mother, Mrs. Whitehouse, was a little woman. She was only 4 ft. 10£ ins. tall. She was aged 30 years and this was her first baby. During her pregnancy she visited the hospital at intervals on 13 occasions. She was a very nervous,' tense woman. She had an instinctive revulsion against her vagina being examined. So much so that the doctors found it impossible to discover by clinical examination the position of the baby. They wanted to take a lateral X-ray to show it, but this she declined. On the 31st December, 1969, just a week before she was confined, she was examined by the head of the unit, Professor E.G. McLaren. He made this note:
"High head. Relaxed well.
This is a tight outlet, I think.
Declines lateral X-ray. So
awaiting head fixing. 'Trial of Labour is my guess'".
That note meant that the baby's head was still too "high".
It had not yet "engaged". That is, it had not got down to that point where the widest part of the head was level with the brim of the outlet. The professor thought it might be best to have "trial of labour". That means that the surgeon would have to go cautiously and try forceps and gradually to see whether the baby could be delivered safely or not.
A week later, soon after midnight on the 6th January, 1970, the mother began to have her labour pains. She was taken into the hospital at two o'clock in the morning. She was seen by the doctors and nurses on several occasions during the rest of the night and the next day. Their notes recorded on three occasions quite clearly "Vertex engaged". That meant thatthe baby's head had come down so far that the widest part of the head was level with the brim of the outlet: and that the time for delivery was approaching.
The labour was prolonged. Hour after hour passed. Twenty-two hours until it was eleven o'clock at night. She was in a labour ward. The doctor on duty at the time was a young Dr. Skinner. He had been qualified for five years and was working on a research fellowship in obstetrics. Mr. Jordan, a senior registrar, was off duty. He was working on a research project upstairs. Soon after eleven o'clock he went down to have a word with Dr. Skinner. Whilst they were having a cup of coffee, Dr. Skinner's "bleep" went. It was a message from the midwife that a patient was fully dilated. It was Mrs. Whitehouse. Dr. Skinner told Mr. Jordan: "This may be difficult. I doubt if I can do it myself. I shall need help". Mr. Jordan said: "I think I had better come myself". They changed their clothes into operating clothes and went to the delivery room to which Mrs. Whitehouse had been moved. Prom that moment Mr. Jordan took charge. He read the notes and discussed the case with Dr. Skinner. He examined the patient. He found that the head of the baby was "engaged" but that the mother was so small that normal delivery was out of the question. This was his note:
"Abdomen: Sinciput still palpable. Head engaged.
Pelvis: Small gynaecoid.
Normal delivery out of the question".
So he decided to do "trial of labour" such as Professor McLaren had suggested in his notes. All those concerned were there. Dr. Skinner was close beside him. The anaesthetist was there. Two midwives were there. The baby's head was "engaged" but it was a little out of straight. So he turnedit with forceps called Kielland's forceps till it was straight. This was easily done. Then he tried to see if he could urge the baby towards the outlet. For this he used other forceps called Simpson's forceps. He managed to get the baby down some way. He could have pulled it right down and out, but it was so tight a fit that he feared that the baby might be damaged on the way. So he stopped pulling and switched over to a Caesarean section. These were his notes on this most crucial stage:
"Forceps began at 23.45 6/1/70
Head rotated to O.A. (occiput anterior) with Kiellands - no problem.
Kiellands removed and Simpsons forceps applied.
A very tight fit. No episiotomy.
After pulling with 5 or 6 contractions, it was obvious that vaginal delivery would be 'too traumatic - for Caesarean section".
The charge against Mr. Jordan arises out of that very note which he made. It is said that he pulled too long and too hard: and that in so doing he was guilty of such want of skill and care that it was he who was the cause of this baby's cerebral haemorrhage. I will return to this later: and meanwhile get on with the story.
As soon as Mr. Jordan decided on Caesarean section, Mrs. Whitehouse was moved from the delivery room into the next room. She was made ready for the operation. The team got ready too with fresh sterile gowns and so forth. She was given a general anaesthetic. Mr. Jordan made an incision in her abdomen. He removed the baby and handed it at once to the paediatricians. It took two minutes. Everyone in the caseagrees that this stage was all superbly done. Mr. Jordan's note says:
"Caesarean section - patient given G.A." - that is, general anaesthetic.
"Op. started at 00.23 7/1/70
Child delivered 00.25 7/1/70
Sub-umbilical mid-line incision. Standard lower segment Caesarean section".
Mr. Jordan stayed to look after the mother. The paediatricians took over the baby.
It was in a very poor shape. It was not breathing and the pulse was almost nil. The paediatricians applied all their resuscitative techniques. It took them 35 minutes before the baby breathed...
To continue reading
Request your trial
- Heller Factoring Sdn Bhd (Previously known as Matang Factoring Sdn Bhd) v Metalco Industries (M) Sdn Bhd
- Payremalu Veerappan v Dr Amarjeet Kaur and Others
-
Volcafe Ltd and Others v Compania Sud Americana de Vapores SA (t/a CSAV)
...or justified." 75 In Beacon Insurance at [17] Lord Hodge, giving the judgment of the Board, cited Lord Bridge of Harwich's speech in Whitehouse v Jordan [1981] 1WLR 246 at 269–270 which spoke of a wide spectrum from cases where there is a conflict of evidence between witnesses and credibili......
-
Wai Wing Properties Pte Ltd v Lim, Ganesh and Liu (sued as a firm)
... ... It depends on the nature of the mistake. I would like to quote the speech of Lord Fraser in Whitehouse v Jordan at 281: ... Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true ... ...
-
Medical negligence as a causative factor in South African criminal law: Novus actus interveniens or mere misadventure?
...op cit (n43) 133.46 As further borne out by the judgments of Lord Denning: see English case law supra (n40); cf Whitehouse v Jordan [1980] 1 All ER 650 (CA); see also Denning op cit (n40) 237: ‘At one time the Courts held that a professional man was not liable for ordinary negligence but on......
-
The Presumption of Proportionality
...in HuangvSecretary of State for the Home Department n 17 above at [17].79 This is, in essence, the litigation in Whitehouse vJordan [1980] 1 All ER 650 (CA) and [1981] 1WLR 246 (HL).Julian Rivers© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 431(2014) 77(3) M......
-
Judicial Representations of Scientific Evidence
...the impact ofChernobyl, the Birmingham Six, OJ Simpson and so on.4643 Whitehouse vJordan [1981] 1 WLR 246, 256–257; Whitehouse vJordan [1980] 1 All ER 650, 655(CA). See also Ikarian Reefer I, n 28 above, 81–82; Ikarian Reefer II, n 28 above, 496; Turpin vMerrell Dow Pharmaceuticals, Inc 959......
-
EVOLVING PERSONAL TORTS
...Forms of Damage in Negligence”(2015) 27 SAcLJ 643 at 665. 25 Michael A Jones, Medical Negligence (Sweet & Maxwell, 2008) at p xi. 26[1980] 1 All ER 650. 27Whitehouse v Jordan[1980] 1 All ER 650 at 659. 28 Michael A Jones, Medical Negligence (Sweet & Maxwell, 2008) at p 20. 29 Michael A Jone......