XXX v King's College Hospital Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 26 March 2018 |
| Neutral Citation | [2018] EWHC 646 (QB) |
| Date | 26 March 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14C04802 |
[2018] EWHC 646 (QB)
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: HQ14C04802
Elizabeth-Anne Gumbel QC and Mr Richard Cartwright (instructed by Irwin Mitchell LLP) for the Claimants
John Whitting QC (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 21, 22, 23 and 27 February 2018
Judgment Approved
Introduction
At the outset of the trial I made an anonymity order. Although, as will appear, the case is a “wrongful birth” claim and the Claimants are adults who are not “protected parties”, the substance of the case relates primarily to the needs of a seriously disadvantaged 7-year old boy and it seems to me to be an appropriate case for such an order. Such an order is always subject to review, but it seems to me to be a justified order in this case at the moment.
The boy, who will be referred to as ‘XXX’ in this judgment, was born at the Princess Royal University Hospital in Orpington, Kent, on 22 November 2011. The Defendant Trust is responsible for the hospital.
After XXX was born it was discovered that he possessed a chromosomal abnormality called a ‘22q11.2 deletion’ (otherwise known as DiGeorge syndrome). Although the case is not at this stage concerned with the nature of his disabilities, it is alleged on his behalf that he has suffered and will continue to suffer developmental delay and learning disability, with intellectual abilities far lower than would otherwise have been expected, and will require “further multiple heart surgeries” in the future. He has already undergone two surgical corrections to the heart defect referred to below (see paragraphs 19–23 below) and he remains under the supervision of the cardiac unit at Evelina London Children's Hospital. There is a question (that cannot yet be answered) about his ability to live independently in the future.
Had his mother had an amniocentesis, the chromosomal abnormality would have been revealed. It is accepted that she would have received advice about the consequences of the abnormality and that it would have been at a time when the possibility of a termination of pregnancy would have been offered. Her case is that she would have opted for a termination.
She underwent a routine 20-week ultrasound fetal anomaly scan at the hospital on 7 July 2011. It was carried out by Mr. Don Jayasinghe, an experienced sonographer. It is common ground that the fetus at that stage would have possessed an abnormal heart structure that, if identified, would have led to a fetal echocardiogram and an offer of an amniocentesis.
The primary issue in the case is whether Mr Jayasinghe, who essentially reported that the scan was normal, negligently missed the abnormality that existed and thus failed to refer XXX's mother on for further investigation. There is a secondary issue, namely, whether, as she alleges, XXX's mother would have opted for a termination when told of the potential consequences of the chromosomal abnormality.
The issues are narrow. Each side contends that the answer to the first issue is simple. It can be stated simply, but it is less easy to resolve given the debate between the expert witnesses. A list of the expert witnesses called on each side appears in Appendix 1 to this judgment.
However, it is right to observe that when certain infelicities and ambiguities of expression in the various expert opinions about the appropriate scanning techniques were analysed, the picture became clearer. The concepts are a little difficult for a layman to understand and it is not made easier when different expressions appear to be used for the same thing. However, one advantage of oral evidence in a case such as this is that these difficulties become less once the uncertainties of the language are exposed and explained. One regrettable feature of this process in this case, in my view, is that it took until at least the conclusion of all the oral evidence before the picture became clearer.
The difficulty remains, however, in conveying accurately and comprehensibly to a lay reader of a judgment such as this precisely what is meant by a particular aspect of the scanning technique. As most people will know, the technique itself involves a dynamic process of moving a transducer over the mother's abdomen in search of certain important features of the fetal anatomy in a fetus that may itself be moving. Ms Hazel Edwards, the expert sonographer who gave evidence on behalf of the Defendant, said that it is “hard to verbalise an ultrasound scan”. I think that sums up the difficulty accurately.
I will return to these issues where relevant in due course.
The legal test
There is no dispute about the legal framework for the decision. Mr Jayasinghe's actions have to be judged by determining whether he acted with reasonable care according to the standards of the reasonably competent and well-informed sonographer on the basis of what contemporary standards required in July 2011. Ms Elizabeth-Anne Gumbel QC, for the Claimant, referred me to Penney v East Kent Health Authority [2000] Lloyd's Rep Med 41, where issues of a comparable nature were considered.
In this connection Mr John Whitting QC, for the Defendant, referred me to Lillywhite v University College London Hospitals NHS Trust [2005] EWCA Civ 1466. His contention, based upon the approach adopted by the majority of the Court of Appeal in that case, is that where, as he suggests is the case here, a claimant cannot positively identify the scanning mistake which had been made (other than the fact that the abnormality had actually been missed), the defendant would escape liability if it could demonstrate positively a reasonable and plausible explanation for missing it. I will return to that contention if it arises.
The nature of the fetal anomaly scan
The normal fetal cardiac anatomy
Before understanding the nature of the anomaly that is said on behalf of the Claimants to have been negligently missed, it is important to understand the normal fetal cardiac anatomy.
Mr Whitting helpfully produced a diagrammatic representation of the normal heart as an Appendix to his Opening Note. I reproduce that diagram in Appendix 2 to this judgment. It helps to understand the relative locations of the individual features of the heart.
In the normal cardiac anatomy, the aorta leaves the left ventricle and the main pulmonary artery leaves the right ventricle. The aorta and the main pulmonary artery are two of the “great vessels” of the heart. The left ventricle is the main pumping chamber of the heart, the function of which is to pump oxygenated blood through the aortic valve into the aortic arch and thence to the rest of the body. Deoxygenated blood returns to the heart through the veins and via the right atrium through the tricuspid valve into the right ventricle. That ventricle pumps the blood through the pulmonary valve and through the pulmonary artery to the lungs where the blood is re-oxygenated.
In the normal heart, there should be an intact interventricular septum (the ‘septum’ illustrated in the diagram in Appendix 2) and a left and right ventricular outlet (‘LVOT’ and ‘RVOT’ respectively) which cross over each other, broadly at right angles (often referred to as the “offset cross”). The LVOT is the aortic outflow tract and the RVOT is the pulmonary artery outflow tract. The reason for the cross-over is that each goes in a different direction: the aorta goes in the direction of the right shoulder and the main pulmonary artery goes in the direction of the spine. Although the diagram in Appendix 2 is inevitably two-dimensional, a sense that these two vessels go in different directions can be obtained from it.
The developing heart of a fetus at 20 weeks is, of course, very small. Dr Patricia Chudleigh, the expert sonographer called for the Claimants, described the heart at this stage as being “the size of an olive” and the working assumption is that it occupies about one-third of the chest cavity of the fetus at that stage of development.
Notwithstanding its small size, its essential features can or should be capable of being visualised on a properly conducted ultrasound scan, as indeed should any defects in its structure (subject to the issue of “mimicking” to which I will refer in due course and to the issue of whether some defects may be missed despite using ordinary care and skill: see paragraphs 22 and 79–104 below).
The anomaly in XXX's case
The cardiac defects demonstrated in XXX's case were in the form of a truncus arteriosus (otherwise called a common arterial trunk – ‘CAT’) and a large ventricular septal defect (‘VSD’).
The form of truncus arteriosus in this case meant that only one vessel left the ventricles, the effect being that both oxygenated and deoxygenated blood mixed in the single trunk that rose from both ventricles. This occurred because of an incomplete separation of the aorta and pulmonary artery in embryonic life, a separation that ordinarily takes place. The consensus amongst the experts appears to be that there was no LVOT and no RVOT, merely one ventricular outlet. (An alternative way of describing the defect is that the single ventricular tract was both an LVOT and an RVOT. The consequence is the same.) However, another way of describing the position, as I understood the evidence, was that there was an RVOT, but no LVOT (which is the way Dr Bu'Lock and Mr Howe eventually described the position). At the end of the day, I do not think a conclusion as to which of these various descriptions more accurate is important to the outcome of the case save to the extent that the particular physiological cardiac configuration in XXX's case is of relevance to what...
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