Spencer v NHS North West

Ashley Spencer was born on 5 August 1994 and is now nearly 18. She suffers from cerebral palsy. She brings a claim in negligence against the hospital where she was born, the Royal Oldham Hospital. She claims that the Defendant’s midwifery staff were negligent in failing to suspect that she was developing Group ß haemolytic streptococcus (GBS) on the first night of her life while she and her mother were still in hospital. As it turned out, her condition was picked up too late to avoid very serious long term disability.

Ashley was in reasonable condition at birth. Her temperature was normal and after being given some facial oxygen for two minutes she was transferred to the post-natal ward. However, at some stage during the following morning her condition deteriorated and at about 10.00 it became apparent that she was very ill having become infected with GBS. The disease process started with septicaemia but at some time during the early hours of the morning of 6 August the bacteria in her bloodstream crossed the blood-brain barrier and infected the meninges (the membranes that line the skull and vertebral canal and enclose the brain and spinal cord) causing meningitis. She was transferred late in the evening to St Mary’s Hospital Manchester (a specialist children’s hospital), where she remained very ill for many days, despite early treatment with antibiotics. It became apparent at an early stage that Ashley had suffered irreversible brain damage as a result of the disease and she is left with physical disabilities, severe developmental delay and severe visual impairment.

Blood samples taken from Ashley’s mother, Kathryn Spencer, on 5 August 1994 while still in labour indicated an elevated white blood cell count. She was prescribed at the end of the delivery a 7 day course of antibiotics to be administered, initially at least while she remained at the hospital, on the ward.

Mrs Spencer’s membranes ruptured spontaneously at 17.45 on 4 August 1994 and delivery was not until 16.55, some 23 hours later on 5 August 1994.

A short time after her birth Ashley and her mother were taken from the delivery suite to the post-natal ward and then to a single room off the ward. They were due to remain in hospital overnight. It was recorded that Ashley had her first breast feed at 17.45. A Baby Observation Chart was started at 20.00 and the first entries were that Ashley was: “Pink” (under SKIN/COLOUR), “breast feeding” (under FEEDING) and “good” (under TONE). A care plan was also written out which contained the following entries:

“Parentcraft

The midwifery shift changed to the night shift at 20.15 and the midwife taking over on the post-natal ward was Julian Bonnebaigt. He had qualified as a nurse in 1982 and as a midwife in 1988. He saw Ashley and her mother at about 23.00 and made an entry in the Baby Observation Chart. He noted that she was “pale pink”, that her eyes were “slightly moist”, that she had been “breast” feeding, that the umbilical cord was “clean and clamped” and that there were no other features worthy of note. He said that this followed a top to toe examination.

It was Mrs Spencer’s evidence that she told midwife Bonnebaigt that she thought Ashley had fed but she was not really sure as she had not had a baby before. He asked to see her feed and took the baby out of her cot and gave her to her. She said that he watched her for a little time and then left. She carried on feeding for about 10 minutes but the baby was not really sucking and she put her back into her cot.

She then described how Ashley began to become unsettled; she was restless and was moving her right arm and she was crying. She said that:

“The cry was a strange sort of cry, more like a cat cry than a baby and it was intermittent. I did not think it was the sort of cry that was asking me to feed her or pick her up; in fact you could almost have ignored the cry”

Mrs Spencer said that at about 00.30 on 6 August, she pressed the buzzer to call the midwife because the baby had not settled, but that she “...was not worried about Ashley and ...did not think she was unwell…just unsettled.” Midwife Bonnebaigt came in response to the buzzer and she said he would have heard the baby’s cry. She described how the midwife picked the baby up and wrapped her tightly in a blanket and put her in the bed next to her mother, saying that she probably just needed comforting. The baby quietened and settled almost immediately and both she and her mother went to sleep. Although at the time of his witness statement midwife Bonnebaigt apparently had no recollection of this interaction, he agreed in evidence that it had taken place. He had been called because Ashley was unsettled and crying, he had picked her up, swaddled her and placed her next to her mother, whereupon she settled. He did not examine the baby and there was no further discussion about breast feeding. He said that if he had heard or been made aware of any abnormal or unusual cry he would have examined the baby and recorded any abnormalities or concerns. He further said that he did go in to see them on several occasions during the night and there were no problems.

At 06.00 on 6 August, midwife Bonnebaigt wrote in the Post-natal Progress and Evaluation Notes relating to the mother:

“ Tired, has been breastfeeding most of the nite [sic]. No other complaints”.

In the Notes for the baby he wrote:

“Unsettled. Breast fed well. Both eyes sticky”.

Mrs Spencer said that she had woken up at about 08.00, that she and Ashley had slept through and were in the same position as they had been when they first went to sleep and that she was surprised that Ashley had not woken in the night for a feed. About 15 minutes later a female midwife came in and she remarked to her that Ashley looked pale and a bit blue, and the midwife replied that it was probably the lighting, opened the curtains and left without examining Ashley.

Mrs Spencer said that she was increasingly concerned because Ashley was still asleep. A photographer came in at some time between 09.00 and 09.30 to take a picture of the baby and the photographer remarked that Ashley looked a bit pale. She then asked the photographer to get someone straightaway and a female midwife came in, examined Ashley and went to get a doctor.

Midwife Diane Stringer came on duty at about 08.30. She said she went into Mrs Spencer’s room at about 10.00 to perform a routine post-natal check, rather than having been asked to do so. She was shocked by Ashley’s appearance. She appeared extremely pale and cyanosed, but was asleep and not crying. She asked the mother how long she thought Ashley had been that colour and was told that she had just suddenly gone pale and that previously she had been a nice pink colour. Mrs Spencer denied that this was said. Midwife Stringer wrote in the notes at the time:

“10.00am - On first sight of baby – looked pale ++and cyanosed T[emp] 36.5ºC. Dr Palamino (paed[iatrician]) informed immediately, also has rapid breathing.

Seen by Dr Palamino - baby for transfer to SCBU[Special Care Baby Unit]. Baby’s eyes sticky+ swabs taken ? meconium staining. Mum says baby just suddenly went pale from being a nice pink colour.”

Ashley was transferred to the SCBU. On admission it was noted by Dr Best, a paediatrician that the baby “Had fed well and been stable until 10am.” It was clear by then that Ashley was very ill and urine and blood cultures later demonstrated that she had GBS meningitis. She was initially treated with i/v penicillin and transfusions and was ventilated. She was transferred to St Mary’s Hospital Manchester that evening, but her condition deteriorated and she began to have seizures. She remained very sick for many days and early CT imaging showed severe abnormalities, extensive oedema (swelling of the brain) and possible infarction (obstruction of the cerebral vasculature).

It will be apparent from the above factual summary that there are differences between the factual accounts of Mrs Spencer and the midwives and central to the case are the findings to be made as to Ashley’s developing condition as was or should have been known to midwife Bonnebaight.

The principal issues may be stated as follows:

The standard by which the midwives are to be judged is the standard of a reasonably competent midwife carrying out the functions expected of him/her on the post-natal ward of a District General Hospital - see: Bolitho v City & Hackney Health Authority [1998] AC 232.

In considering this issue I had the assistance of evidence from expert witnesses in the fields of midwifery, Professor Ann Thomson BA MSc RGN RM MTD and Mrs Sue Brydon RGN RM BSc MSc PGDipEd(Mid) CertHp, and of neonatology, Dr Simon Newell MD FRCPCH FRCP and Dr Janet Rennie MA MD FRCP FRCPH FRCOG DCH. All were distinguished experts with considerable clinical and teaching experience in their fields. There was also expert microbiological evidence although it was ultimately decided that these experts did not need to be called.

By the end of trial there was no real dispute as to issues (3) and (4).

There are a number of areas of the case where the experts agreed. These included the following.

Ashley became infected with Early Onset GBS (EOGBS) infection rather than Late Onset GBS (LOGBS). Colonisation of GBS was at birth, most likely around the time of delivery. In most EOGBS the blood and respiratory system are affected/infected.

Ashley had an initial septicaemia (infection of the blood stream) leading on to meningitis (infection of the cerebrospinal fluid [CSF]).

Early signs of EOGBS are non-specific and there is an overlap between signs of meningitis and septicaemia. In their early stages they are often indistinguishable. As meningitis progresses there may be additional, more specific signs. Not all signs are present in every baby with EOGBS but one would expect some abnormal clinical signs to be present once EOGBS is present.

With hindsight and on Mrs Spencer’s account, poor feeding after the first feed, becoming unsettled and the strange cry were signs of EOGBS.

The limited findings of the midwife at 23.00 are consistent with Mrs Spencer’s account. At this time Ashley’s signs are unlikely to have been obvious without taking a history or examination.

Meningeal invasion is likely to have begun sometime between 23.00-05.00. However, clinical meningitis (when GBS has been present in the meninges for long enough to produce detectable inflammatory changes associated with clinical signs) was not established by 00.30. If it had been Ashley would have been unlikely to settle off to sleep and would have deteriorated more rapidly.

Ashley’s illness is likely to have developed progressively through the night and into the morning. By 06.00, all agreed that a careful examination would have revealed signs of illness. By 10.00-10.30 Ashley was clinically very unwell with features of established EOGBS including multisystem illness with infection of the blood and the meninges.

As to what a doctor should do when called to a newborn infant: “Antibiotics should be given to the newborn infant who has any signs suggestive of infection. In neonatal medicine, we have a low threshold for administration of treatment of infection”.

The experts also agreed that the leading textbook is Roberton’s Textbook of Neonatology (Roberton) which is edited by the Defendant’s expert, Dr Rennie. This included the following passages of particular relevance to the issues in the case:

“Clinical presentation, investigation and management of neonatal sepsis

Neonatal infections can be caused by an extraordinary variety of micro organisms and can present many specific features. There are though, many common principles relating to presentation, investigation and management which can usefully be considered before moving on to classify and deal with specific conditions.

Clinical presentation and assessment of the infant

Early recognition, diagnosis and treatment of serious infection in the neonate is essential because of the risk of permanent morbidity or mortality. Progression from mild symptoms to death can occur in less than 24 hours. Most neonatal bacterial infections have an early bacteraemic phase preceding the development of a full-blown septicaemia or the localisation of infection in organs and tissues. During this phase the clinical signs are subtle, but this is when treatment must be started if there is to be intact survival. These factors dominate the clinician’s approach to infants with apparently minor symptoms, and lead to an apparent, but totally justified, tendency to over investigate and over treat. It is undoubtedly better to be proved wrong and to withdraw treatment after 48 hours from a well infant whose cultures are negative than to procrastinate for even a few hours with fatal consequences.

….

Signs of neonatal sepsis

In the early stages, signs are subtle and often noted first by the nurses or the mother. Such concerns must always be taken seriously and should not be overridden by the findings of a single clinical examination, especially when risk factors for sepsis are present.

Early signs

‘Going off ‘. This is difficult to define, yet is often the earliest and most important sign. The mother or an experienced nurse thinks the baby is just not ‘right ‘. He may be slightly irritable or unresponsive. He loses interest in feeding or sucks poorly.

….

Tachhypnoea/recession. Mild respiratory distress, as evidenced by a raised respiratory rate (sustained above 60 breaths per minute), and slight recession are among the first non-specific sign of sepsis.

….

Irritability. Infection may cause pain and may make the baby restless or whimper. Persistent moaning respiration is an ominous early sign.

….”

The factual issues in the case are made more difficult by the fact that it is now nearly 18 years since the events in question. The resolution of those issues is also made harder because I am satisfied that all the factual witnesses were honest witnesses doing their best to assist the court. Where I have preferred the evidence of one witness to that of another it is because I find there to be mistaken recollection or reconstruction rather than any intention to mislead. All witnesses believed the evidence they were giving to be true.

In relation to Ashley’s history the Claimant contended that there were various risk factors of which the midwives caring for Ashley should have been aware and that they should therefore have had heightened awareness of the potential for infection. These were: the rupture of the mother’s membranes 23 hours before delivery; the elevation of the mother’s white cell count (WCC); the meconium staining in the mother’s amniotic fluid and the fact that the mother was prescribed antibiotics.

As to the rupture of the membranes, it was common ground between the midwifery experts that at the material time 23 hours would not be regarded as a prolonged period of rupture. It was only if it was 24 hours or more that it would be so regarded and a matter of potential significance. Midwife Bonnebaight was not aware of the period of rupture, nor should he have been unless there had been some reason to inquire into the obstetric notes relating to the mother.

As to the elevation of the WCC, the evidence was that these results would not have been available to the midwives at the time because they would not yet have been produced by the pathology laboratory. Midwife Bonnebaight was accordingly not aware of the elevated WCC, nor could he have been. In any event, it was Mrs Brydon’s evidence that a slightly elevated WCC during labour is not unusual and is not an indication of the need for investigation.

As to meconium staining, the midwifery experts agreed that this is a common post-term labour finding and is not associated with infection.

As to the prescription of antibiotics, the evidence was that antibiotics were prescribed because of a ragged membrane rather than concern about infection. Midwife Bonnebaight was not aware of this, nor should he have been unless there had been some reason to inquire into the obstetric notes.

I accordingly find that midwife Bonnebaight was not aware of any of the alleged risk factors. Had there been a reason for him to inquire into the obstetric notes the only factor of which he would have been made aware and on which he might be expected to have placed significance was the prescription of antibiotics for the mother.

In relation to midwife Bonnebaigt’s examination at 23.00 I find that he carried out a top to toe examination as he stated and that the Baby Observation Chart accurately recorded the findings that he made. To the extent that he had to inspect the cord and the baby’s buttocks he would have needed to remove or lift the baby’s nightdress and remove her nappy. He explained that to do the latter he would have lifted the baby’s feet up and looked, rather than turn her onto her front. He would have had to handle her to assess her tone. He would have had to look at her eyes to conclude that they were “moist”. He would have had to look at her face or skin to assess that her colour was “pale pink”. Although it was said that this examination would not have taken long, it was long enough for him to carry out properly the observations required by the Chart. Although he noted that Ashley was “pale pink” rather than “pink” that was because he considered that to be the best description of her colour. It did not reflect a change in condition from the earlier description by another midwife of “pink”.

With respect to breast feeding I essentially accept Mrs Spencer’s account of the interaction between them. Midwife Bonnebaigt said that he wanted to see Ashley feeding and Ashley was put to Mrs Spencer’s breast. The midwife “looked quite closely”, was satisfied that Ashley attached to the breast and began sucking and left shortly thereafter. Ashley did not feed much but this was not particularly surprising as it was not a long time since her last feed and she had been woken up. The midwife had seen Ashley attach and start sucking and was satisfied that she was feeding properly even if he did not know how much or for how long she fed.

It was the evidence of Dr Newell for the Claimant that Ashley would have had a raised respiratory rate by this time since the literature suggests that in 80% of cases of EOGOBS such symptoms will present in the first 4-6 hours. A raised respiratory rate means in excess of 60 breaths per minute. However, if this was the case I find that midwife Bonnebaigt would have noted it. He handled Ashley and carried out a top to toe examination of her. That included examining her naked chest, as borne out by the observations made as to her cord. He said that she was breathing normally. I am satisfied that an experienced midwife such as midwife Bonnebaigt would have noticed a raised respiratory rate during such an examination. This was supported by the evidence of Mrs Brydon and Dr Rennie. It was Dr Newell’s evidence that it could be missed and that a 30 second examination and a breath count would need to be done, but I find that midwife Bonnebaight would have noted a raised respiratory rate given the nature of the examination he carried out. It follows that Ashley’s respiratory rate was not raised at that time. If, contrary to my finding, it was so raised, then it was subtly raised so as not to be apparent on a properly carried out Observation Chart examination.

Following midwife Bonnebaigt’s 23.00 examination I essentially accept Mrs Spencer’s’ account of what occurred between then and the 00.30 interaction. Ashley was placed in the cot on her left side but was generally unsettled and crying and from time to time was moving her right arm. This eventually led to Mrs Spencer calling the midwife at 00.30.

It was the Claimant’s case that by this time Ashley was exhibiting a number of early signs of neonatal sepsis and was “going off”.

Reliance was placed in particular on Mrs Spencer’s description of Ashley’s cry which it was said was abnormal or unusual. In her witness statement Mrs Spencer described it as “strange” and “more like a cat cry than a baby”. A cat like cry is a widely used description of a cry that may be heard in the later stages of meningitis in neonates. However, it was common ground between the experts that Ashley could not have reached this stage or indeed have acquired clinical meningitis by 00.30 and so it cannot have been a cerebral cry of this nature. Such a cry would in any event by obviously distressing and immediately recognisable to a midwife.

In her oral evidence Mrs Spencer said that it was not a baby like cry and that it was more of a whiny cry. She also attempted to mimic it.

Roberton records that “infection may cause pain and may make the baby restless or whimper” and it was suggested by Dr Newell that this is what here occurred. However, as Dr Rennie explained, there was no reason for the sepsis to cause Ashley pain or even discomfort. Further, if this had occurred it would not be easily reconcilable with the agreed evidence that Ashley was quickly and easily settled when she was swaddled and placed with her mother. Moreover, one would expect a whimpering cry to cause concern even for an inexperienced mother, but it was Mrs Spencer’s evidence that the cry could almost be ignored.

As to the mimicked cry, the experts were agreed that it is very difficult for an adult to mimic a baby’s cry and it was Mrs Brydon’s evidence that it was not like a baby cry that she had ever heard. Further, the cry was not so strange or unusual as to cause Mrs Spencer to mention it at the time, or indeed at any time until months or years later.

I find that Ashley’s cry was not a cerebral cry, nor was it a whimpering cry as described by Roberton. It was a cry within the range of normal baby cries as described by Mrs Brydon, albeit that it was a soft, tremulous cry rather than a loud, lusty cry. It was not a cry that a midwife would regard as being abnormal or unusual. As such it was not a cry which would cause concern to a midwife, as borne out by the fact that it caused no concern to midwife Bonnebaigt, who, it was common ground, heard it.

It was the Claimant’s case that Ashley’s unsettled, crying state reflected “irritability” which is one of the early signs identified by Roberton. This was disputed by Dr Rennie who explained that this reflects being inconsolable, which Ashley was not, as she immediately settled on being swaddled and placed with her mother. Mrs Brydon’s evidence was to similar effect. She said that an irritable baby is one who does not like being handled or touched and that Ashley showed no such signs. I accept their evidence and find that Ashley was not displaying irritability.

As to other signs of “going off”, Ashley was not noticeably floppy or pale or mottled nor was she irritable or unresponsive. On Mrs Spencer’s account there were signs of her losing interest in feeding, but the midwife was not aware of this and she had appeared to suck properly.

By this time it is possible that Ashley would have had a slightly raised respiratory rate but this would be unlikely to be detectable without a chest examination, which was not carried out.

In support of the case that there were likely to be clear signs of infection by this time the Claimant relied on what they said was the agreed expert evidence that there was likely to have been invasion of GBS around of delivery and that one would expect some abnormal clinical signs once GBS is present. However, reading the note overall I am satisfied that Dr Rennie only agreed that it was possible that there was invasion at the time of delivery. In any event her oral evidence was clear that invasion at that time was unlikely because no elevated respiratory rate was noted at 23.00 and because Ashley survived until 10.00 without collapse. I accept that evidence and find that it is not possible to determine when invasion occurred. If so, one cannot infer that there would have been clear signs of infection by 00.30 and the factual evidence is that there were not.

Ashley and her mother then slept through the rest of the night. In so far as the Notes suggest that Mrs Spencer was thereafter awake and feeding Ashley, I find that they are incorrect. Midwife Bonnebaigt did look in on occasion but did not want to disturb mother and baby. He must have looked at them closely on at least one occasion during the night since he noted Ashley’s sticky eyes in his 0600 notes for the baby. The “breast fed well” note is likely to be a summary reflecting his 23.00 observations. The “unsettled” note is likely to be a summary of the 00.30 interaction, although it is possible that Ashley was also observed to be restless whilst sleeping during the night.

In relation to the following morning I essentially accept Mrs Spencer’s account of events, although it is unlikely that Ashley had in fact stayed in exactly the same position during the night. The person who came into the room after she woke up is likely to have been a nurse, not a midwife. The photographer left the room to get a midwife just as midwife Stringer was about to enter it, which would explain why she did not think she had been asked to do so. Mrs Spencer did say that Ashley had suddenly become pale. By this she was referring to her waking up and finding that she had become pale. In so far as midwife Stringer understood this to mean that Ashley had suddenly become pale at 10.00 this was a misunderstanding on her part. Dr Best’s notes reflect what he had been told by midwife Stringer.

This has been addressed above.

In relation to Ashley’s condition at 00.30 Professor Thomson’s evidence was that there were signs of Ashley “going off” as a result of her unusual crying; the fact that she was unsettled and that she was not feeding.

As to the unusual cry, I have found that Ashley’s cry was within the normal range of cries, was not a cerebral or whimpering cry and was not a cause for concern.

As to being unsettled, I have found that this was not a reflection of irritability. Further, Ashley was quickly and easily settled following midwife Bonnebaight’s intervention. Had it proved difficult to settle her then further steps might have needed to be taken, but in this case that was not necessary since she settled almost immediately.

As to feeding, midwife Bonnebaight was not aware that Ashley may have been losing interest in feeding. His understanding was that she had sucked well and fed satisfactorily and Mrs Spencer did not say otherwise. It was suggested that he should have asked about feeding during the 00.30 intervention. Had Ashley not settled immediately it may well be that this would have been raised. But the midwife’s efforts to settle the baby had been successful and it was reasonable for him to leave mother and baby in peace rather than have an extended interaction.

Further, Mrs Spencer’s concerns were not about feeding. She did not say anything about the baby not feeding particularly well either at 23.00 or 00.30. Even if she had given a description of what had happened after he left, Mrs Brydon’s evidence was that this would have been considered this as being entirely consistent with the feeding pattern of a normal new-born baby.

I accept Mrs Brydon’s evidence that the fact that a baby, less than a day old, was unsettled and crying intermittently would not be a reason to suspect infection. It would be considered normal behaviour. Nor, would it be a reason to look for possible signs of infection, rather than concluding that the baby probably wanted comforting. That was midwife Bonnebaigt’s instinct and it appeared to be proved to be correct because the baby settled down almost immediately after she had been swaddled and put into bed with her mother.

In cross examination Professor Thomson agreed that midwife Bonnebaight’s response had been sensible and successful. It had had the desired effect. The baby was not irritable or fretful. On the basis that the midwife had been satisfied at 23.00 that Ashley was feeding well, as I find he was, she said that what he did was acceptable. Although, the Claimant submitted that this did not qualify her evidence as to what have been done if there was an unusual cry, I have found that there was no such cry.

In the light of my findings as to Ashley’s condition as was or should have been known to midwife Bonnebaight, and Professor Thomson’s realistic concessions in cross examination, there was ultimately little evidential basis for questioning the competence of midwife Bonnebaight, still less for finding that no reasonably competent midwife would have acted as he did.

The neonologist experts mainly addressed the issue of causation and they deferred to the midwifery experts on the issue of negligence.

Dr Newell did consider that Ashley would have had a raised respiratory rate by 00.30 and that this should have been apparent on examination. However, even if that was so it would first have to be established that a reasonably competent midwife would have examined Ashley at this stage. Such an examination would only be necessary if there were causes for concern. An examination would not be done routinely. As found above, Mrs Spencer’s concerns had been addressed and dealt with. Ashley had settled and stopped crying. There was no apparent need for an examination. For similar reasons there was no apparent need to call the paediatrician.

If a paediatrician had been called it would have been because the midwife had concerns as to Ashley’s condition. The paediatrician would have learned of the 23 hour period of ruptured membranes and that the mother had been prescribed antibiotics. He/she would have elicited Ashley’s history of feeding. Even if there had been no sign of a raised respiratory rate on examination I have little doubt that the doctor would have taken the sensible precaution of prescribing antibiotics. There was ultimately no dispute about this.

By the end of the trial there was no dispute on this issue either. Clinical meningitis had not developed at this stage. Had antibiotic treatment been started at this time I find that all neurological injury would have been avoided.

This is a very sad case and it is tragic that Ashley has had to suffer and to continue to suffer the consequences of a preventable illness. However, the fact that it was preventable does not mean that it was caused by the negligence of the Defendant. Having carefully considered the evidence and the parties’ helpful submissions, I have reached the clear conclusion that it was not so caused. The claim must accordingly be dismissed.