FE v St George's University Hospitals NHS Trust

FE was born at 03.16 on 25^th January 2001 at the Defendant’s hospital, St George’s Hospital. It is agreed that he suffered a period of acute hypoxic-ischemic insult at the end of labour which led to neurological damage. It is also agreed that if he had been born at or before 03.11 he would not have suffered such damage. This is the trial of his claim for damages for clinical negligence in the period leading up to his birth. The Court has previously ordered that liability and causation are to be determined at this trial. If quantum needs to be determined that will occur subsequently.

I am very grateful to counsel and all parties for the skill and expertise demonstrated in written and oral submissions.

The issues have been narrowed by the parties before trial and have been further distilled during the hearing. The central matter to be determined can be summarised as follows, when should JE have been assessed by an obstetrician of appropriate seniority and how quickly after that assessment should FE have been delivered. The Claimant’s case is that, on receiving appropriate information from the midwife, either the obstetrician could and should have left another patient, (X), sooner in order to reach JE to carry out the assessment and commence the delivery earlier or that the delivery should have occurred more quickly after the assessment was actually carried out. The Defendant’s case is that the obstetrician did all that could reasonably have been required of her and that the injuries suffered by FE were in all likelihood caused by a “cord event” and therefore not as a result of anything done or not done by the medical staff.

The Claimant contends that both the midwifery team and the obstetric team fell below a competent standard of care, such that the Defendant’s breach of duty caused or materially contributed to the brain damage suffered. The failings were pleaded in the following way:

Not all of those issues still require to be resolved. The significance of some factors waxed and waned during the hearing but the time at which the doctor left patient X, the timing of the examination after 2am and the time from that until delivery remain the crux of the case. It is necessary to deal with the factual evidence in some detail but it is not necessary or helpful to rehearse all the evidence or decide those points which do not contribute to a determination of the crucial issues.

FE was the first child of JE and PE. The pregnancy was generally unremarkable. The contractions began in the early hours of the morning of 24^th January 2001 and JE was admitted to the labour ward at 8.45am. Labour continued throughout the day, the baby’s heart rate dipped a number of times and a monitor was attached to allow closer observation. Gas and air was not an effective form of pain relief and in due course an epidural was administered and subsequently topped up. At 22.35, after an examination by the registrar, it was felt that the labour should be “moved on” and a Syntocinon drip was started. At 23.50 the concerns of the midwifery team were such that the registrar was called again and a foetal blood sample was taken. The baby’s heart rate continued to dip. A second sample was taken at 01.35 on 25^th January. JE was told that the doctors were “tied up in theatre”. When the registrar saw JE at about 02.30 she said that the baby needed to be delivered quickly and that she would try a Ventouse delivery. That was attempted but failed. Delivery was then attempted by forceps, that too failed and it was decided that a Caesarean section was necessary. That was performed and FE was delivered at 03.16, by which time he had suffered a severe hypoxic ischaemic injury. It is agreed that if he had been born by 03.11 he would not have suffered those injuries.

It is an unsatisfactory feature of this case that the recording of events was generally unreliable. The CTG monitor that was used to observe and record the baby’s heart rate and contractions was running on the wrong time for a considerable part of labour. The machine did not permit notes of events to be written against the time on the paper as it passed through the machine, although it might have been possible to mark the paper at the correct time and fill in details later that procedure does not seem to have been followed. At one stage the evidence was that events, such as an examination, are recorded on the trace before the paper went through the machine and before they were carried out, at another time the evidence was that the notes were added after the paper had been through the machine. The names of medical personnel are inaccurately recorded, sometimes but not always corrected later. Theatre notes have been altered by over writing without authorship. Some important events, if they occurred, have not been recorded at all, in particular the stopping of the administration of Syntoconin to JE. It is hoped that these failings have been remedied in the time since 2001.

Diane Mack is an experienced midwife who had charge of JE’s care from 17.00 on 24^th January when she took over from her colleague Clare Richards. The parents felt that she provided good support to them throughout the evening and early hours of the morning. When she took over care she reviewed the day’s events, in particular the CTG trace and noted the pattern of decelerations and recovery in the baby’s heart rate. She described herself as not being “too concerned” by these at the start of her involvement but kept a close eye on the trace in the circumstances. Her evidence was that in order to record an event on the CTG trace she would write on the roll of paper before it went into the machine. Her notes in the patient records are neat and apparently detailed but although those notes show that Syntoconin was started at 22.45 they are silent as to if or when it was stopped. The last reference to a dose showed that at 01.00 it was being administered at 45 drops per minute. Before the trial it had been conceded by the Defendant that there had been a failure to stop the administration of the drug at about 02.00 and that it was not stopped until JE was admitted to theatre at about 03.00. The midwife gave evidence that as far as she could remember it had, in fact, been stopped sometime much earlier than the time at which JE was eventually taken to theatre.

It is clear that her concerns increased as the evening continued into the early hours of the morning and she advised or sought intervention from the medical team on a number of occasions. Her notes include the following;

“20.50

[JE] would like a top up. (Epidural). Discussed with anaesthetist the need to give sitting up as [JE] feeling contractions mostly lower back. Agreed this could be done. Also discuss with [JE] and [PE] reasons for giving top up sitting up. Dr Hussain informed.

22.00

Dr Sharma informed of findings. Seen patient on ward round.”

There was a ward round and at 22.35 JE was seen by Dr Hussain, senior registrar and Dr Thomas, senior house officer. The doctors were aware of the lack of progress in the 3 hours prior to the vaginal examination at 21.40, they were also aware of the previous variable decelerations in the baby’s heart rate but the foetal heart rate was considered satisfactory. The plan was that Syntconin should be started and a foetal blood sample should be taken if the CTG worsened. Syntoconin was commenced at 22.45 at the rate of 15 drops per minute. By 23.15 it was 30 drops per minute and by 23.30 it had been increased to 45 drops per minute. At 23.50 there was a late deceleration of the baby’s heart rate to 80 beats per minute. When seen by Dr Hussain at 23.50 she was happy that labour should continue

“for the time being”

In fact Diane Mack was becoming increasingly concerned and felt that the baby should be delivered soon. She spoke to her colleague, Sister Darko to express her concerns, and contacted the senior house officer, Dr Thomas so that he could review the situation. He arrived at 00.25 and took a foetal blood sample. The sample would indicate the pH level in the baby’s blood which would further assist in assessing the position. That sample showed a reading of 7.331, which was considered satisfactory. The reading was discussed between Dr Thomas and Dr Hussain and a plan was made to allow labour to continue and further review the situation in an hour. Both doctors were informed of the deceleration at 00.32, in which the baby’s heartrate dropped to 75 beats per minute.

The midwife’s concerns further increased as time went on, the CTG trace continued to show variable decelerations down to 90 beats per minute but recovery was sluggish. There was an issue as to whether such decelerations were actually warning signs of potential trouble or merely a reaction to contractions. A very significant feature of this case is that the midwife believed that these were worrying features and based her attempts to communicate her concerns to the medical staff, at least in part, on this pattern of decelerations. By 01.15 Diane Mack wanted a doctor to attend to perform a vaginal examination to assess the need for delivery. By this time there were frequent decelerations as low as 70 beats per minute and there had been a period of between 10 and 15 minutes in which there had been no accelerations. Dr Thomas told the midwife that he was busy attending to another patient and asked the midwife to perform the vaginal examination, which she did. There was full dilation. The presenting part of the baby’s head was cephalic and 2cms below the spines. In the view of the midwife delivery should be expedited. The trace continued to show decelerations but no accelerations. Sister Cornelia Darko was informed that a doctor should attend. The answer came back that the doctors were busy and would attend as soon as they could. In fact Dr Thomas did come back at 01.35 and performed a vaginal examination and took another foetal blood sample. That sample produced a reading of 7.264, which is just normal. The medical plan was to wait 1 hour and re-examine. The midwife was told at 01.45 that both Dr Thomas and Dr Hussain were going into theatre to carry out a Caesarean section on another patient X.

Diane Mack remained concerned and advised JE to refrain from further pushing as it was feared that this might cause further decelerations. The trace continued to show variable decelerations but very few accelerations. At 02.00 Diane Mack again told Sister Darko and recorded in her notes that she wanted a doctor to attend and that the baby needed to be delivered soon. She was told that the doctors were still in theatre. By 02.15 the foetal heart rate was 110 beats per minute with no reactivity. She noted marked deceleration which was very slow to recover.

“02.15 Indicated to [JE] and [PE] not very happy as earlier will need to be delivered. [JE] happy to do what ever is necessary. Foetal heart 110 bpm, no reaction, very marked variable deceleration very slow to recovery. (sic). 60-80 bpm. [JE] on side.”

The midwife was told that Dr Hussain had come out of surgery at 02.30 and she then assembled the equipment for an instrumental delivery. This was at some point, either before or after the doctor arrived in the room. There was a discussion between Dr Hussain and the parents who agreed to whatever was necessary. Dr Hussain carried out a vaginal examination and then decided to carry out a Ventouse delivery at 02.45, after two unsuccessful attempts she tried to perform a forceps delivery at about 02.50. The need for a Caesarean section was discussed with the parents, they agreed and JE was transferred to theatre. A Caesarean section was carried out, there was some difficulty in getting the baby’s head out of the pelvis and FE was delivered at 03.16. He was described as being in poor condition and he was immediately handed over to the paediatric team for further care.

At no point in the notes or in her witness statement does the midwife record the stopping of Syntoconin. Her evidence was that it was her normal practice to turn it off and although she did not have a specific memory of turning it off on this occasion she could not imagine that she would not have done so, particularly given her concerns about the course of this labour.

Heather Greenway gave expert evidence on the midwifery aspect of the case for the Claimant. She had concentrated, in large measure, in her report on the failure to stop the administration of Syntoconin after it was clear that there were consistent foetal heart rate abnormalities and further not to have obtained a senior obstetric review by 00.50. She also dealt with the failing of Sister Darko as an effective channel of communication between the midwife and the medical team. In general terms she believed there had been a failing on the part of the midwifery team to secure a review by a senior obstetric medical practitioner by 02.00. In my view she was handicapped in her critique of the care given on the night by the imperfections in the notes and record keeping, in particular the notes made by Diane Mack about the assembly of the equipment necessary for an instrumental delivery.

Jennifer Fraser gave expert evidence on the midwifery aspects of the case for the Defendant. She agreed that if the Syntoconin had not been turned off, it should have been. She was not critical of the midwives for not seeking senior medical opinions at the time pleaded by the Claimant on the general premise that opinions were sought at relevant times and that at 02.00 in particular when such an opinion was required all the doctors were unavailable dealing with other patients.

In my view the evidence of the expert midwifery practitioners was of less significance at the conclusion of the hearing than had appeared to be the case before the evidence began. This was particularly given the evidence of Diane Mack that she thought that the Syntocinon drip had actually been turned off at some point.

Fatima Hussain is now a consultant in obstetrics and gynaecology. At the time of FE’s birth she was a senior registrar. Her title at that time has been used in these proceedings, as in the case of all the medical practitioners. Given the damage that FE was known to have suffered she had made a detailed statement two days after his birth and had been assisted by that in preparing her evidence for this trial.

The night of 24^th-25^th January was a particularly busy one. She had come on duty at 16.00 and had immediately been called to deal with an abdominal wound. Her normal pattern of ward rounds had had to be varied so that she could deal with patients of “higher priority”. A ward round that should have taken place at 18.00 did not in fact occur until 22.00. Even then only Dr Hussain and Dr Thomas, the SHO, were available to carry out that round. Dr Wayne, the senior registrar, was dealing with an emergency and was unavailable.

JE was first seen by Dr Hussain and Dr Thomas at 22.35. Dr Hussain read the notes, saw the results of the vaginal examination carried out at 21.40 showing dilation of 8cms, the same finding as three hours earlier. The contractions were occurring at five minute intervals. Her statement records the following.

“The CTG trace had a baseline of 140, good variability and some variable decelerations had been seen in the preceding hour with good recovery. I reviewed the whole CTG trace when making my assessment I considered that the CTG was satisfactory. I made a plan to start Syntocinon to see if the contractions could be improved to help progress. I confirmed that we should keep a close eye on the CTG trace with a view to taking a foetal blood sample if it deteriorated to obtain a reliable indication of how well the foetus was coping with the labour. Future management decisions could then be based on good information.”

She intermittently checked on progress by looking at the CTG trace on the monitor at the nurses’ station and on seeing that the variable decelerations were continuing she asked Dr Wayne to see JE. The notes showed Dr Hussain that Dr Wayne had reviewed the CTG trace at 23.30.

The doctor remembered being informed that a late deceleration to 80 bpm with a sluggish recovery had occurred at 23.50. As had been planned earlier a foetal blood sample had been taken by Dr Thomas. Dr Hussain had been informed of that test verbally by Dr Thomas who stood at the door of the theatre where Dr Hussain was treating patient X. She was told of the baby’s position, that the cervix was fully dilated and the blood sample reading was 7.33, which was normal. That sample had been taken at 00.25. Dr Hussain gave instructions that the test should be repeated in an hour so that the ability of the foetus to deal with labour could be kept under review.

She recollected and stated in her witness statement that at 01.35 the test was repeated, the reading was 7.26, the results were communicated to Dr Hussain, it was normal and she was therefore re-assured and felt that there was no

“particular urgency about the case.”

Dr Hussain was of the view that JE should be proceeding to delivery because she had by that stage been fully dilated for an hour. Dr Hussain believed at that time that she would leave the theatre where she was treating patient X by 02.00 and attend to JE herself to assess “the mode and urgency of delivery”. She told Dr Thomas that she would be able to reach JE for that assessment as she expected to finish treating patient X and leave the theatre at 02.00. In fact the print out of the test result showed that it had been created at 01.43 and therefore the conversation with Dr Thomas could not have been before 01.45, at the earliest.

The records of the time of arrivals and departures in and out of theatre have been written over and in general terms are wholly unreliable. It appears likely that patient X’s baby was delivered at 01.33. In any event patient X had had a very difficult delivery and suffered complications which included a vertical uterine tear. As a result both Dr Hussain and Dr Wayne were required to stay in theatre for longer than had been expected, possibly for as long as 45 minutes to 1 hour after delivery. The difficulty that Dr Hussain faced in evidence was that the estimate she gave to Dr Thomas at about 01.45 of when she would reach JE, namely at about 02.00, must have been given at least 12 minutes after the delivery of Patient X’s baby at a time when she must have been aware of the damage sustained by Patient X and the likely time required to repair the damage.

The shambolic state of the theatre records show that timings have been altered and no signatures or initials have been applied, so no explanations can be given for the appalling state of record keeping when it was obvious to all by 03.16 that the events of the night and their precise timing would be of great significance. It would be difficult not to be somewhat cynical about the nature of that piece of record keeping were it not for the fact that it is so generally awful.

Dr Hussain had compiled notes of the events of the shift at different times and on occasions she would record the fact that they were made up in retrospect but not necessarily every time that was the case. It is difficult to place much confidence in her note recording. She could not be certain whether she stayed with patient X until all the surgery was concluded, including the cutaneous suturing which could have taken up to 10 minutes, or not.

Dr Hussain recorded in her witness statement that it was 02.20 before she could leave the theatre, change scrubs and attend to JE, arriving she thought at about 02.30. She accepted that it might, in fact, have been 02.35. When she arrived she spoke to PE and JE and proceeded to carry out a vaginal examination, saw that the CTG was showing persistent late decelerations and found that the baby ”needed to be delivered”. Dr Hussain wanted to move to a theatre so that if the instrumental delivery she intended to carry out could not be performed then the process could move straight to a Caesarean section. She herself went back to the theatre to see if it was available, it was still being cleaned from the previous patient and so it was decided between Dr Hussain and Dr Wayne that Dr Hussain would carry out a Ventouse delivery in the delivery room. Dr Hussain was experienced and confident in carrying out this procedure. Two attempts to complete the procedure failed and so a forceps delivery was attempted, this too failed. By this stage the theatre had been cleaned and was available and JE was moved there so that a section could be performed. A general anaesthetic was administered to JE and FE was delivered by Dr Hussain with the assistance of Dr Thomas at 03.16. He was immediately passed to the care of the paediatric team. Dr Hussain made notes of the events at 05.20 that morning.

In her witness statement of 30^th June 2014 she said that usual practice would be to ask for the taking of the foetal blood sample to be taken after 30 minutes if there were ongoing concerns about the results of the CTG trace. She agreed that proper management would mean that after 01.45, JE was reviewed as soon as was possible in the light of other commitments and applying that test she should have left Patient X after the sub-cutaneous tear was closed leaving Dr Wayne to suture the skin. She was forced to accept that that would have brought her to JE’s room about 10 minutes earlier than she actually got there and that FE would therefore have been born approximately 10 minutes earlier. She maintained that whatever the actual time she left patient X, it was the earliest she could safely have left her in the care of Dr Wayne alone. That is a difficult position to reconcile with her inability to recall whether she remained in theatre until after the cutaneous suturing was completed.

Dr Wayne is now a consultant in obstetrics and gynaecology; he was also a senior registrar at the time of FE’s birth. He has no recollection of the events of the night concerned and is therefore entirely dependent on the notes and records. His involvement with JE was restricted to examining the CTG trace at 23.30. He thought it likely that he would have re-assured the midwife that the trace was satisfactory and that labour could continue but would have confirmed the necessity for close observation. His primary involvement over the relevant period was with patient X. During the time he and Dr Hussain were in theatre dealing with patient X it was agreed, after the second foetal blood sample result on FE was relayed to Dr Hussain, that Dr Hussain would go to JE “as soon as she could”. He too thought that was at 01.35 but that seems to be a repetition of the mistake made by Dr Hussain. His evidence was that the surgery on patient X was “completed some time after 02.00, although the exact timing is not clear from the records”.

He is now also a consultant in obstetrics and gynaecology. At the time he was a senior house officer. He remembers this shift as one of the busiest he has ever worked but has no detailed recollection of his care of JE. He accompanied Dr Hussain on the delayed ward round at about 22.00. His next involvement appears to have been at 00.25 when he saw JE and carried out a vaginal examination which showed almost full dilation. He took the first foetal blood sample and relayed the normal reading of 7.33 to Dr Hussain. He observed the position on the CTG monitor at the midwives’ station at 01.30 that although there was still good variability of 5 to 10 bpm, a series of regular mixed variable and late decelerations had developed. After discussion with the midwife, he went to tell Dr’s Hussain and Thomas of the plan to carry out a second foetal blood test and the midwife spoke to the parents. He carried out the test and received the result at 01.43 which showed a reading of 7.26, which was still within normal limits “and reassured us that an emergency situation had not yet developed”. He immediately passed those results to Dr’s Hussain and Thomas who were still in theatre “finishing the emergency caesarean section”. He was called to A&E but spoke to JE and PE on his way and informed the midwife that he was carrying a bleep and could be called back. He also told Diane Mack that she could call either Dr Hussain or Dr Thomas from theatre. He appears to have felt some sense of the impending emergency of the position. He was called back from A&E to assist in the Caesarean section on JE at 02.55, he ran to the theatre to find JE there “ready” for the surgery. By that time a “code blue” call had gone out and a paediatric specialist team had been summoned. He was not sufficiently experienced to have commenced an instrumental delivery alone even if he had been called back from A&E.

The issue between the neonatology experts can be expressed quite simply. Was the damage that FE suffered caused by an acute mechanical injury to the cord in the period shortly before delivery or was it as a result of chronic damage caused by gradual deterioration in his condition in a longer period before delivery, whether or not there was also an acute cord incident. Professor John Wyatt gave evidence for the Claimant and Dr Anthony Emmerson for the Defendant. Each has great expertise in the field but represents a very different school of thought. On reviewing the records, and in particular the foetal, cord and post-natal blood samples, Dr Emmerson was firmly of the view that this was an acute cord incident which occurred in the “last sort of 10 plus minutes before delivery”. A cord incident is an accident in the true sense and not something caused or contributed to by the treatment of mother and baby in the labour ward. Professor Wyatt was equally firmly of the view that there had been a gradual deterioration in FE’ condition over a longer period which was caused, in whole or in part, by the exhaustion of the foetus struggling through decelerations and an unduly delayed delivery.

Although the issue between them can be expressed simply it is medically complex but each has been of enormous forensic assistance in contributing to a minute of a joint meeting which they held on November 2^nd 2015. They disagree on the chronic or acute cause of the damage. The position upon which they agree can be summarised as follows:

Mr Stephen Walkinshaw, a consultant in foetal and maternal medicine until his retirement in 2012 provided a report and gave evidence for the Claimant. Professor Timothy Draycott, a consultant in obstetrics and gynaecology, by video link from Japan, prepared a report and gave evidence for the defendant. Each is a leading authority in the field. They both agreed, in a joint report and in evidence, a number of aspects of the care provided,

Professor Draycott was of the view that it appeared that there had been a sudden and catastrophic total cord compression about 10-15 minutes before delivery. He described this as a chance accident, which could not have been predicted or prevented.

Mr. Walkinshaw concluded on the balance of probabilities that there had been escalating hypoxia, secondary to cord failure. That hypoxia starts the chain reaction which results in compromised brain profusion causing damage.

The standards by which the defendant is to be judged are the standards of the day, 2001 in this case. The law has developed through the leading cases in the field from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 to Bolitho v City and Hackney Health Authority [1998] AC 232. The principles have more recently been articulated in Sardar v NHS Commissioning Board [2014] EWHC 38 at para 25.

“The legal principles applicable to claims for clinical negligence against doctors, nurses and midwives can be summarised in the following propositions:

(1)

The test to be applied is the standard of the ordinary skilled man or woman exercising and professing to have that special skill.

(2)

It is sufficient if he or she exercises the ordinary skill of an ordinary competent person exercising that particular art.

(3)

He or she is not negligent if he or she has acted in accordance with a practice accepted as proper by a responsible body of medical people skilled in that particular art.

(4)

The standard by which the individual doctor, nurse or midwife is to be judged is the standard of a reasonably competent doctor, nurse or midwife carrying out the functions expected of him or her in the delivery suite of a general district hospital.”

My primary findings of fact on the evidence are as follows:

Notwithstanding the pressures of a busy labour ward, the system of communication and the response to messages sent between the teams was inadequate and failed to ensure that a reasonable standard of care was provided to FE and his mother in the period before his birth. In the result and for the reasons given above the Claimant’s claim succeeds.