Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE BUCKLEY
Between :
| SAFIA DERICHE | Claimant |
| - and - |
|
| EALING HOSPITAL NHS TRUST | Defendant |
The Claimant appeared in Person.
Charles Cory-Wright (instructed by Capsticks) for the Defendant
Hearing dates: 18th, 20th, 21st, 24th, 25th and 26th November and 15th December 2003
Judgment
Mr Justice Buckley:
Background
In early 1996 the Claimant, (Mrs Deriche), became pregnant. On 2nd May 1996 she attended her general practitioner, (Dr Ali), whose notes record that her son (Alexander) had chicken pox and that she was to be tested for antibodies against the disease. On 14th May 1996, Mrs Deriche again attended Dr Ali. On this occasion his notes record:
"Came out in chicken pox rash this morning.
O/E (on examination) florid crops of chicken pox all over.
D/W (discussed with) Registrar EGH (Ealing General Hospital).
à (referred to) EGH for Blood Test.
PT (patient) counselled about side effects of VZV on foetus.
Advised about small chance of affecting foetus."
Dr Ali wrote the following referral letter to the Registrar in Obstetrics at the Defendant’s hospital:
"This pleasant 36 years old lady is 14 weeks pregnant and has come out in chicken pox rash this afternoon. She is enquiring about the effect to the baby. I would be grateful for your advice. Thank you."
Mrs Deriche attended the Accident and Emergency Department of Ealing General (A & E) that same evening, taking with her the referral letter she had collected from the surgery. The A & E notes record that she arrived at 18.16; they include a nursing assessment, which mentions that she needed an antenatal clinic (ANC) appointment in two weeks and Mr Haeri is mentioned. He was to be the consultant responsible for Mrs Deriche’s care. The notes then record that Mrs Deriche was seen and examined by a Dr Hakki and then reviewed by Dr Adedze, a Registrar, whose note includes:
"ê (diagnosis) – chicken pox in second Trimester.
Full counselling of patient re: small risk of transplacental spread/congenital malformation.
Accepts small risk."
Nothing about Dr Adedze’s note is admitted as will become clear.
On 16th May 1996 Mrs Deriche again attended the A & E and was reviewed by a senior house officer (SHO) whose note records:
". . . . . plan: reassure.
Calamine.
Piriton . . . . .
Review in ANC in 2/52 (2 weeks)."
On 30th May 1996, according to the antenatal records, Mrs Deriche was "booked" by midwife Barbara Francis who recorded:
"Discussed – antenatal care, booking, bloods, scan, diet, double test, leaflet given, will breast feed."
The note also confirms an appointment at ANC for 5.6.96.
Mrs Deriche duly attended the ANC on 5th June 1996 where she was seen by a Dr Anderson and had blood tests and an ultrasound scan. It is agreed that Mrs Deriche specifically asked to see the consultant. She then saw Mr Haeri whose entry in the record is simply:
"Serum screening ü for foetal anomaly scan, Amnio discussed."
Mr Haeri wrote to Dr Ali on 7th June 1996 as follows:
"Thank you for referring this lady who unfortunately has recently developed chicken pox. She has had this condition during the 17th week of gestation and is now nearly recovered. We regard the risk to the baby as being very small but we will perform a foetal anomaly scan at 20 weeks gestation. We discussed serum screening and amniocentesis in view of her age and she has elected to have serum screening in the first instance.
We would be happy to share antenatal care with you "
No abnormalities were revealed by the foetal anomaly scan which was carried out on 19th June 1996 and Mrs Deriche gave birth to her son, Gabriel, on 7th November 1996.
Tragically Gabriel is very severely disabled, has suffered brain damage and is likely to remain dependent on carers for his lifetime.
Mrs Deriche now brings this action against the Defendant in negligence for failing properly to advise her of the risks to her baby. I am concerned only with the issue of liability.
As may be apparent, the background I have recited is largely taken from the medical records and I find it as fact, insofar as it indicates the sequence of events and the medical notes that were generated. I mentioned that Dr Adedze’s note was challenged by Mrs Deriche. Her firm evidence was that on the 14th May at A & E she saw only one male Asian doctor who took her blood and looked at her spots. She denied seeing Dr Adedze, who is black, and maintained that position even when Dr Adedze gave evidence in court. I believe that Mrs Deriche, whilst still having no recollection of Dr Adedze, was, in the end, prepared to countenance the possibility that her lack of recognition may simply indicate that she was very unwell on the 14th May. However, in view of Dr Adedze’s confirmation in evidence of his meeting with Mrs Deriche and his contemporaneous note, I do find that he saw her on 14th May and that his note is a genuine record of his examination and advice.
The Parties’ Cases
Mrs Deriche’s case is simple. It is that she was never advised that there was a risk of serious damage to her baby from the chicken pox she contracted in pregnancy and Mr Haeri advised her there was no risk. If she had been properly advised she would have opted for a termination. Since Mrs Deriche represented herself, I consider it fair to expand her case somewhat to reflect both the evidence and submissions at trial and the expert evidence. Her real complaint is against Mr Haeri, since she does not recall her meeting with Dr Adedze. However, even if she did see Dr Adedze and even if he did advise her as his notes indicate, she remained undecided about a termination, was very upset on 5th June at the ANC and insisted on seeing the consultant Mr Haeri. In those circumstances his advice to her was inadequate; either, because he said there was no risk to the baby or was otherwise too reassuring or because he failed to identify and illustrate the possibility of severe damage if such risk as there was materialised.
Mr Cory-Wright, who conducted the Defendant’s case throughout with complete fairness and tact in accordance with the best professional tradition, put the Defendant’s case as follows: Mr Haeri did advise, correctly, that there was a small risk to the baby; it was not necessary for him to explain the nature of the risk, since it was plain that the conversation was about damage to the baby and more particularly, he saw from the A & E notes that Dr Adedze had fully counselled Mrs Deriche about possible congenital malformation; he was right to be reassuring to Mrs Deriche and, in any event, Mrs Deriche would probably not have opted for a termination.
Issues and Findings
14th May visit to Dr Ali
Mrs Deriche’s evidence was to the effect that on seeing her spots Dr Ali said:
"Safia, are you sure you don’t want to wait for another pregnancy?";
She was shocked by this and asked:
"Why?";
Whereupon Dr Ali said that there might be a problem with the child’s development as a result of her chicken pox; she was very concerned and asked to be referred to a specialist consultant for advice on the potential effects on the foetus before deciding about termination.
Dr Ali gave evidence. It was clear that, understandably, he had difficulty in recalling precisely the sequence of events and what exactly he had advised. However, he remembered this appointment generally and confirmed that his note would reflect the sequence of events. He agreed that he would have mentioned termination as an option and that he had passed on the telephone advice of the registrar, whom he could not identify, that the risk to the baby was very small. He agreed that Mrs Deriche collected the referral letter that evening.
Thus, it is clear that termination was mentioned by Dr Ali. I find that he mentioned it as an option but readily accept that Mrs Deriche understood it as advice and that her recollection of his words is probably about right.
A point, which I do not consider determinative, arises out of the last entry in Dr Ali’s note of this visit:
"Advised about small chance of affecting foetus."
Dr Ali said that this was not added later. However, I find that it was, but hasten to add, perfectly properly. It would never have been written as it appears in the notes unless the entry for 16th May had already been made. It is possible that Dr Ali wrote it on 15th May, perhaps if Mrs Deriche told him what had happened at the hospital the evening before. However, it is more likely and I find that it was added when he received from the hospital on 17th May a copy of the A & E notes, which include Dr Adedze’s note of counselling. I regard that as an understandable addition in order to complete what he then understood to have happened on 14th May.
14th May Attendance at A & E
I have already indicated that I find that Mrs Deriche did see Dr Adedze, a registrar, in A & E that evening and that she was counselled as set out in Dr Adedze’s note. The remaining question is what, precisely, Dr Adedze meant by "full counselling re: small risk of transplacental spread/congenital malformation". Dr Adedze said in evidence that he identified four possible known problems: brain damage, skin lesions, hypoplasia of the limbs and neurological damage including loss of sight. Mrs Deriche cross-examined Dr Adedze on the basis that she had never met him before. It was not suggested by Mr Cory-Wright that Mrs Deriche was lying, simply that the tragedy she suffered had in some way distorted her recollections and caused her to reconstruct events inaccurately. The Defendant had lost touch with Dr Adedze and he was only contacted during the trial. It follows that he had not recorded his version of events until some 7 years later. However, I accept that he did recall the meeting. Chicken pox in pregnancy is a rare occurrence and one in which I accept he had a special interest. He explained "full counselling" saying that he recalled mentioning the four potential problems. I accept his evidence on that and consider that it is entirely consistent with his contemporaneous note.
In his evidence Dr Ali was very unclear as to when he actually discussed with Mrs Deriche any advice she had received from the hospital and whether it was advice from Dr Adedze or Mr Haeri. He understood that Mrs Deriche had received full counselling and accepted the small risk and thought it likely that he had heard of that on 15th May but wasn’t sure. In the end he said Mrs Deriche came to him after being reassured at A & E and not after seeing Mr Haeri. Certainly, he made no note between an entry of 5th June stating that Mrs Deriche was "going to see Mr Haeri and having a scan", until 31st July. It is probable that they would have discussed Mr Haeri’s advice on 31st July and indeed Mrs Deriche said that they did.
Dr Ali also said in evidence that he saw Mrs Deriche on 15th May. His note for that day records that he gave a certificate for four weeks because of chicken pox and prescribed calamine. Bearing in mind that only the previous evening he had given her the referral letter to A & E for advice and tests that evening, it is very unlikely that he would take no further action, or indeed that Mrs Deriche would not demand such, if she had not then seen a doctor and received the advice she was seeking. Since, overall, it is clear that Mrs Deriche was continuing with the pregnancy, at the very least, pending seeing Mr Haeri at the ANC and bearing in mind the above-mentioned matters, I find that Dr Adedze’s evidence fits in with the overall picture and has some support from the evidence of Dr Ali.
I note, in passing, that Mrs Deriche attended A & E on 16th May as she wanted something for itching. The unidentified note records "Reassure" as part of the plan. She was also seen at home by midwife Barbara Francis on 30th May. This was a booking appointment as already mentioned.
5th June Appointment at the ANC
Mrs Deriche’s account of her meeting with Mr Haeri was that she told him that her GP was, in effect, recommending a termination and that as he was reading her notes he pondered aloud "Why is he saying that?" and that he went on to say categorically that since she had chicken pox in the second, as opposed to the first trimester, there was no risk to the baby. She said she even asked if he was sure there was no risk, which he confirmed and that he would write to her GP to confirm.
Mr Haeri’s account was that Mrs Deriche said her general practitioner wanted her to have an abortion because there was a high risk of something being wrong; he was astounded that anyone should make such a strong recommendation and said that it was wrong, the risk was low not high.
Importantly, Mr Haeri agreed that he had not discussed the problems the baby could have or their severity. In his view the consultation was about the level of the risk. He had seen Dr Adedze’s note and that Mrs Deriche had received "full counselling" and accepted the "small risk"; he was dealing with what the GP was reported as having said; he had said she would not need a termination because the risk was low but he wouldn’t have put a percentage figure on it. He said that Mrs Deriche was obviously upset and he told her he would write to her GP because he wasn’t sure she was taking in his advice. He also said that a foetal anomaly scan (FAS) was discussed, as recorded in his note; that Mrs Deriche raised the question of an amniocentesis test (which Mrs Deriche agreed) to see if the baby was alright, but he explained that test was for Downs syndrome not chicken pox; he explained that the FAS was not very effective, but was the only test available. Specifically, he said he could not believe he would have said to any patient that there was no risk.
Despite Mrs Deriche’s clear insistence that Mr Haeri did say "no risk", I consider it unlikely that any consultant would make and, as alleged, repeat such a bold statement in this type of situation. It is also contrary to his letter to Dr Ali in which he specifically wrote "very small risk". I also note that at paragraph 15 of her witness statement, Mrs Deriche states:
"On 31st July 1996, I saw my GP again who asked me about the outcome of my consultation with Dr Danesh-Haeri, to whom I reported all that was said at the hospital."
If Mr Haeri had said "no risk" it is almost certain that Mrs Deriche would have conveyed that to Dr Ali. Not only would that have struck Dr Ali as extremely surprising in view of his own knowledge and what he had received from A & E, but it would have been contrary to Mr Haeri’s own letter which he had by then received. In such circumstances some further discussion or action would surely have ensued. Dr Ali’s evidence, whilst suggesting that Mrs Deriche had reported that the risk was very small, even negligible, was not that she ever said she had been told there was no risk. Clearly that was never conveyed to Dr Ali. I find that Mr Haeri told Mrs Deriche that the risk was "low" and "very small", was generally reassuring and that she wouldn’t need a termination. I also find that the understanding of both was that the discussion was in the context of potential damage to the baby but that the severity of any damage was neither discussed nor illustrated.
The Expert Evidence
Each party called expert evidence. Mr Hare for Mrs Deriche and Dr Maresh for the Defendant.
In the end, as a result of the usual experts meeting and their evidence in Court, there was a large measure of agreement. The main issue was whether in all the circumstances of this case, Mr Haeri’s consultation with Mrs Deriche on 5th June at the ANC met the required professional standards. To be more precise: would it be supported by a responsible body of medical opinion? The well-known Bolam test should be applied to advice given by a medical practitioner, as was confirmed in Sidaway v. Governor of Bethlem Royal Hospital (1985) 1 A.C. 871. This was acknowledged in Pearce v. United Bristol Healthcare NHS Trust (1999) 8 PIQR 53.
I summarise the facts I find which are most relevant to this issue as follows:
Mrs Deriche had specifically asked to see Mr Haeri, the consultant;
Mrs Deriche was manifestly upset and told Mr Haeri that her GP was recommending a termination;
Mr Haeri was generally reassuring and specifically said that the risk was low and very small and a termination was not needed;
Mr Haeri did not discuss the severity or nature of potential disabilities nor did he illustrate them by way of example;
Mr Haeri had read the A & E notes, including Dr Adedze’s;
Mr Haeri reasonably understood that Mrs Deriche knew there was a possibility of some damage to the baby.
The issue here turns on whether Mr Haeri was justified, in view of Dr Adedze’s notes, in not revisiting the question of the nature and severity of potential damage to the baby but was entitled simply to adopt a reassuring attitude to Mrs Deriche and say that a termination was not needed.
Mr Cory-Wright submitted that Mr Haeri was entitled to rely upon Dr Adedze’s note about "full counselling"; that he had a discretion and exercised clinical judgment in the particular circumstances, in confining himself to reassurance as to the level of risk.
Unaided by expert evidence I might have found this a tricky issue to resolve. However, my understanding of the expert evidence before me is clearly that a consultant in Mr Haeri’s position should have satisfied himself that Mrs Deriche had fully understood the nature of the risk involved and not simply assumed that from Dr Adedze’s note. Both experts said not only should the potential severity of damage to the baby have been made clear but it should have been illustrated by reference to some of the four known problems I have identified. Mr Hare said three of the four should have been mentioned. Dr Maresh said "certainly one or two".
In their joint report the experts had said, in answer to a question on this:
"Both experts agree that at least some of the major abnormalities should have been mentioned as examples of the severity."
Mr Hare had further criticisms, including, that the circumstances of counselling at A & E were not adequate; namely, evening counselling of a sick and worried pregnant woman in an A & E cubicle. I should add that chicken pox in an adult is very nasty and no one doubted Mrs Deriche’s evidence that she was very poorly. Mr Hare said that should have been apparent from the notes in any event and should have rung alarm bells with Mr Haeri. He also criticised the advice that "there was no need for a termination". His opinion was that was for the patient to decide on proper information. In short, his opinion was that Mr Haeri should have spelled out the potential severity of the problems and illustrated them. He was very clear that whatever motivated Mrs Deriche to insist on seeing the consultant, there should have followed a full discussion; it was not acceptable simply to reassure.
Dr Maresh in evidence gave his opinion that Mr Haeri should have "ensured" that Mrs Deriche had understood that the possible abnormalities could be severe and were illustrated; he might, for example, have read the notes aloud as a way of approaching the topic. Provided that was done he was content that the overall effect of the discussion could be reassuring because the risk was low. Both experts were aware of the Bolam test in giving their answers. Thus on the face of things both experts agreed that Mr Haeri’s advice was not to the requisite standard in omitting reference to the severity of possible abnormalities and in failing to illustrate them; he was not entitled simply to rely on Dr Adedze’s note.
Mr Cory-Wright submitted that Dr Maresh’s answers to the above effect should be construed as general answers and not specific to Mr Haeri’s consultation. In particular he relied upon his last question and Dr Maresh’s answer in examination-in-chief:
"Q. Mr Maresh, we have heard his Lordship summarising his note of what Mr Haeri’s evidence was. You were not here at the time. Assume his Lordship were to accept that evidence, is that something which in your view a reasonable body of obstetricians could properly do?
A. It is, my Lord."
In those circumstances, I caused a transcript of Dr Maresh’s evidence to be provided. Having read it carefully I am left in no doubt that Dr Maresh’s repeated answers (including to my own questions) were specific to the circumstances of this case and not general. I regard them as unequivocal. In my judgment they cannot be put aside by the last quoted very general answer. By way of illustration only:
At the bottom of page 3 of the transcript, line 56, Mr Cory-Wright states that he is "moving forward now to the position which Mr Haeri finds himself in on the 5th of June. . . . . "
After drawing attention to Dr Adedze’s notes and pointing out that Mr Haeri had not had any direct contact with Dr Adedze, Dr Maresh at page 5, line 5 of the transcript answers:
"A. If he did have access to this information (the notes), and if I was in this situation, which is what I feel I am being asked to do (give an opinion of what happens in practice), I would expect that I would not want to completely go through everything again with the patient on another occasion. What I would want to do, and what I would do in practice, is almost to read through the notes aloud in the patient’s presence, just to make absolutely clear that I have covered it and that she understands. I would certainly review what was written down to try to make sure that the patient was aware of the discussions which had been recorded in the notes."
At page 8 of the transcript, line 25 my question to Dr Maresh was:
"Q. The GP’s letter simply indicates that she is enquiring about the effect to the baby because she had chicken pox. That raises the very point. But you said more than once now that you would check to see, or satisfy yourself what information she had been given. What I want to know is are you saying you would satisfy yourself simply by looking at the note? I think the answer to that is "No", because you said a method of doing it would be to read aloud?
A. Yes, that is right, my Lord. I would want to go through with her and say: you have been told that there is this small risk and would look at her and see if she had taken that risk on board and that she understood that risk. If not, I would clearly need to go over it again. I would be trying to ascertain whether the written records were in accord with her current understanding. I’m sorry I did not make that clear.
Q. What I was on about was that that includes the nature of the risk, not just that it was small?
A. Absolutely.
Q. In other words, the serious consequences should the risk materialise?
Yes, absolutely."
Taking guidance from dicta in the cases to which I have referred, I accept that a practitioner may, exercising his medical judgement, decide that certain information would be medically damaging to the patient and on those grounds withhold it. That is part of his overall duty of care towards the patient and would be supported by a Court unless considered manifestly unreasonable. However, Mr Haeri did not give that as his reason for not revisiting the matters in question. The closest he came to explaining his decision was to say that further talk of the problems would probably have undermined her confidence in continuing with the pregnancy. Neither expert gave his opinion that that was a sufficient reason for not discussing the possible serious abnormalities nor were they asked to do so.
I have already mentioned that as a result of their meeting the experts agreed at least some of the major abnormalities should have been illustrated. In a second agenda prepared by Mrs Deriche, both experts agreed that:
"Counselling has to be non directional, give a clear indication of the frequency of the condition and its severity."
Mr Cory-Wright also submitted that Dr Maresh’s answers were or should be understood as being directed to his own practice and thus could be reconciled with the final general answer I have mentioned. I reject that submission. Both experts clearly understood the Bolam test and I cannot accept that a fair reading of the transcript leads to any conclusion save that Mr Haeri should have ensured that Mrs Deriche fully understood the nature of the risks and should not simply have taken Dr Adedze’s notes as read. Both experts were clearly of that view and did not identify any contrary body of opinion.
As to the level of risk it was agreed that in this case it was 2%. Mr Hare criticised the expression "very small risk" used by Mr Haeri. He drew a clear distinction between that and "small risk" which was, in his view, the proper description. Dr Maresh also would have described the risk as "small" as opposed to "very small". But he was less critical of the latter description and would not have taken serious issue with it.
Overall, I can understand that in the circumstances of a known small risk of truly dreadful abnormalities, Mr Haeri’s consultation with Mrs Deriche might be regarded as too reassuring particularly bearing in mind his comment that Mrs Deriche would not need a termination. Taken with the omission to ensure Mrs Deriche understood the nature of the risks, it evidenced a somewhat unbalanced consultation. However, since I have found that Mr Haeri did not say there was no risk and bearing in mind the overall effect of the experts’ evidence, I do not find this alone amounted to a breach of duty. I confine myself to finding, based on the evidence of the two experts, that Mr Haeri was on this occasion in breach of his duty to Mrs Deriche in failing to ensure that she fully understood the nature of the risks under discussion. Having seen and heard from Mr Haeri, I have no doubt that he is a competent and caring practitioner. On this one occasion, however, I feel constrained to accept the opinions of the two eminent experts who gave evidence.
I only add for the sake of completeness, that if there was any question of Mr Haeri not having at his finger tips on 5th June, an up-to-date knowledge of the nature and extent of the risks arising in the rare circumstances of chicken pox during pregnancy, both experts were agreed that he could and should have found the information and discussed the matter with Mrs Deriche on another occasion. It was also agreed that there was no need to make an immediate decision on termination and if Mrs Deriche was too upset or apparently not fully understanding anything that was said, the matter could have been left over to another consultation.
Mr Cory-Wright drew my attention to a Court of Appeal transcript in Wyatt v. Curtis and Central Nottinghamshire Health Authority dated 30th October 2003 (Neutral Citation No. [2003] EWCA Civ 1779), which was approved, just in time for this Judgment. He submitted that the same question arose in Wyatt as this case and I should therefore reach the same conclusion. He cited in particular paragraphs 21 – 23 of the transcript of Lord Justice Kay’s Judgment which drew attention to the distress which could be caused to the patient if the second doctor reopened the question of termination or possible abnormalities. At paragraph 23 Lord Justice Kay said:
"Thus, whatever the precise legal test, I would be reluctant in the extreme to hold that there was any greater duty on the second doctor, whatever his or her status, to do any more than satisfy himself that a warning had already been given by an apparently competent doctor."
I do not regard Wyatt as determinative of the present case. There are certain important factual differences. First and most important, Wyatt arose out of a birth in 1991 as opposed to 1996 in this case. The expert evidence to the Court seems to have been different. As Sedley LJ., who gave the first Judgment, pointed out at the end of paragraph 18:
"We have no submission before us that, even without being asked, Dr Howarth (the second doctor) had a duty to tell Miss Wyatt, however emolliently, of the risk to her child."
I had such a submission and very clear expert evidence to support it. Secondly, the consultation with Mr Haeri was at Mrs Deriche’s insistence. It was not simply routine as in Wyatt. Thirdly, the very question of termination was raised by Mrs Deriche.
It seems that medical practice and opinion may have developed since Wyatt. If that is the case, I endorse it. I do not believe it or my conclusions on it are contrary to Kay LJ’s views. The experts in my case were, in effect, simply underlining that the second doctor should satisfy himself or herself, otherwise than by simply taking the earlier notes as read. The wisdom of such a course is demonstrated by the findings of fact in Wyatt at paragraph 36 and 39 of the trial Judge’s Judgment cited by Sedley LJ. Simple reliance on another’s brief note is calculated to give rise to such misunderstanding.
Obviously, the circumstances of cases will vary. It may be that at the later consultation there is nothing to indicate that the topic should arise for discussion at all, it may be a purely routine attendance to check on the patient’s well being. That is not the case here. But when the topic does or should arise, I see great force in the expert view in this case that it must be dealt with properly. As Mr Hare, in particular, pointed out; even a small risk of potentially devastating abnormalities is likely to be regarded as highly material to a pregnant woman. It also seems to me to be important because in such a case, views a doctor may hold on such a delicate matter, should not be allowed to affect the tenor of advice. I have in mind religious or other personal views on the question of abortion.
It must, however, clearly be emphasised that part of the doctor’s duty of care to his patient is to protect her from events that may cause medical injury, so far as he can. Thus if a doctor forms the view that injury would follow from further discussion, of course, he would not proceed and the Court would support him. However, something more than temporary distress would be needed. That should surely be outweighed by the devastation a mother would suffer if the risk materialises and she feels she was not fully warned of it and thus deprived of her right to decide. This is an area where the patient’s right to know and be informed of up-to-date medical knowledge is clearly important, but no doctor who, on sensible medical grounds, withholds certain information need be concerned that a Court would not support that decision.
I believe the above observations to be consistent with Sidaway and also Sedley LJ’s Judgment in Wyatt, including his citation of Pearce. I do not believe them to be contrary to Kay LJ’s comments in Wyatt, which I would be concerned to follow.
Causation
I regard this as a more difficult issue. Mr Cory-Wright submitted that Mrs Deriche’s reaction ("accepts small risk") to Dr Adedze’s counselling was the surest guide and that it was contrary to her present evidence that she would have opted for a termination if properly counselled by Mr Haeri.
In fact Mrs Deriche said in evidence that she had, for example, never been warned of brain damage and that she was horrified when she subsequently learned of Gabriel’s problems. Further, that she wanted a healthy baby and had she been warned of any problems, even minor ones, she would immediately have opted for a termination. I have already made findings about Dr Adedze’s counselling. I cannot accept Mrs Deriche’s evidence on the latter point. Mrs Deriche’s own evidence was that she realised from the outset that chicken pox could lead to "problems" with the baby; that it could be "bad" for the baby. Her mother’s statement, which was put in evidence, was to the effect that they had talked many times about it after she had seen the GP and that neither of them wanted an abortion. The last three short paragraphs of Mrs Deriche’s mother’s statement are as follows:
I was very worried about her all alone and far away being so ill. We did not talk about what might or might not be wrong with the baby. We did not know. I knew that chicken pox was dangerous but that was all.
Safia just wanted to know the truth and she hoped to get the truth from the specialist. She wanted very much to keep the baby.
Safia decided that if the specialist told her that there was a problem with the baby, then she would think again but that otherwise she would keep the baby. In fact, when she went to see the specialist, he reassured her completely."
Perhaps of more significance is the fact that when counselled by Dr Adedze Mrs Deriche accepted the "small risk". I have found that she was then told of the real problems, but even if I confined myself to Dr Adedze’s note, it is clear that she was told of "congenital malformation".
Her reaction was not immediately to opt for a termination. It is clear from both Dr Ali’s evidence and the notes of the midwife, that at least up to 5th June, she was continuing with the pregnancy. Thus her assertion that any problem would have caused her to have a termination is, I am afraid, a product of the tragedy that subsequently occurred and I cannot accept it as an accurate statement of her state of mind in 1996.
Again, I stress that no one has suggested Mrs Deriche is not telling the truth as she sees it. However, Mr Cory-Wright was able to point, not only to the piece of her evidence I have just mentioned, but to her insistence that she never saw Dr Adedze and that she was never counselled at A & E, despite his notes in the medical records and his appearance at the trial; also her evidence that Dr Hakki was a male Asian doctor. Dr Hakki whose notes appear in the records is a female doctor. These inaccuracies must arise from the events which happened and for which everyone is very sympathetic. I do however accept Mrs Deriche’s insistence that her blood was taken at A & E by a male Asian doctor. The position is unclear from the notes but she could well be correct on that.
Even if I accept Mrs Deriche’s perception at the time that she was to see Mr Haeri as the true specialist and that 5th June was "D-day" as she put it; what basis or evidence is there for a suggestion that she would have reacted differently from the way she reacted to Dr Adedze, if Mr Haeri had revisited the nature of the problem? The risk was small, as Dr Adedze had said; Mr Haeri was entitled to be generally reassuring; she did not want an abortion nor did her mother.
I make full allowance for the fact that on 14th May at A & E Mrs Deriche was undoubtedly very unwell and upset by what she thought Dr Ali had suggested and her own general knowledge that chicken pox could be bad for the baby.
However, she is clearly an intelligent woman and was in a condition to understand Dr Adedze. He was satisfied she had understood and recorded that she "accepts small risk". He said, and I accept, that if Mrs Deriche had not been happy with his counselling or had not accepted the small risk he would have referred her to another.
I am inclined to accept that it was Mrs Deriche’s perception at the time that she would see Mr Haeri specifically at the ANC. Dr Ali’s note of 5th June so suggests. If he had counselled in accordance with Mr Hare’s and Dr Maresh’s opinions, he would, in effect, have been expressly confirming Dr Adedze’s earlier counselling. In other words Mrs Deriche would then have heard essentially the same advice or counselling from the specialist or consultant that she had been waiting to hear from. I am afraid I can see no sufficient basis for finding that her reaction would, for some reason, have been different. Mrs Deriche’s real complaint against Mr Haeri was that he expressly said that there was no risk to the baby. I have explained why I cannot accept that evidence; it is simply not in accord with the contemporaneous notes and Mr Haeri’s letter. I do accept that he was somewhat more reassuring than Dr Adedze’s textbook counselling, but neither expert would have regarded that as an attitude that no responsible body of medical opinion would have supported. Certainly Dr Maresh expressly condoned "very small" as opposed to "small".
In short, if Mr Haeri had advised fully and in accordance with the opinions of Mr Hare and Dr Maresh he would, in effect, have been repeating the counselling of Dr Adedze. Even if I were to accept that Mrs Deriche was specifically waiting to hear the consultant’s advice as opposed to her GP’s or the registrar’s, in the event it would have been the same as Dr Adedze’s counselling which had prompted her to accept the small risk, at least for the time being. I can only conclude that in those circumstances her reaction would have been the same.
Thus this claim must fail on the basis that Mrs Deriche has failed to establish causation.
As a postscript I should, perhaps, mention that Mr Cory-Wright proffered and I accepted a witness statement from a Professor Alfirevic. Professor Alfirevic duly attended Court but in the event was not really questioned. He is a professor of obstetrics in feto-maternal medicine at the University of Liverpool. His statement contains his experience since 1997 in respect of an average of 5 women a year who had chicken pox in pregnancy and their reactions to counselling from him or, perhaps others at his hospitals. I indicated to Mr Cory-Wright that since the professor was not called as an expert but as a witness of fact I would need some assistance from him as to the relevance or even admissibility of the statement which I received. I need only say that in view of the conclusions I have reached without reference to this statement the matter is of no further importance. In the end I retained considerable doubt as to the admissibility of this factual evidence but certainly formed the view for various reasons that it was of little assistance to me.