Healthcare and Law Digest

Obstetrics – Trust not liable for brain damage to baby

Chappell v Newcastle Upon Tyne Hospitals NHS Foundation Trust

(High Court, 20 December 2013 – Judge McKenna)

Introduction

This claim arose from the birth of Callum Chappell on 4 and 5 March 2000 at the Royal Victoria Infirmary (RVI) in Newcastle. He was delivered at 05:38 on 5 March by Caesarean section, following a failure to progress in labour. Callum was in a reasonable condition at birth but soon deteriorated, and it quickly became clear that he had extensive brain damage. Sadly, he died on 29 December 2012.

In brief, it was alleged that Callum suffered intra-partum hypoxia which could have been avoided with appropriate obstetric care. Specifically, it was said that an excessive Syntocinon infusion caused the mother’s uterus to contract too frequently, thus preventing adequate recovery time between contractions and leading to a prolonged period of chronic partial hypoxia. The trust argued that there was nothing untoward about the obstetric care, and that in any event Callum’s injury was the consequence of infection passed from his mother during labour which led to neonatal meningitis.

The evidence

On 4 March 2000, when she was aged just 17, Ms Chappell was admitted to the RVI for induction of labour at 41 weeks and six days. RVI guidelines at the time provided that a normal foetal heart rate (FHR) was in the range 110–150 bpm. At 19:00, a midwife noted that the FHR was between 115 and 120 bpm, i.e. within the normal range. At 20:30, an epidural was set up and Dr Cullinane, a senior registrar, authorised a Syntocinon infusion at 1.2 ml per hour. At 21:30, the rate of infusion was increased to 2.4 ml. This was in accordance with RVI guidelines, which provided that the rate could be increased by 1.2 ml increments at stated intervals until a satisfactory rate and strength of contraction had been achieved. At 22:00, it was noted that the FHR was less reactive with reduced variability. At 22:05, the rate of infusion was increased to 3.6 ml.

At 22:13, a vaginal examination was performed showing the cervix to be 9 cm dilated (10 cm being full dilatation). The FHR was 140–145 bpm, and the mother was contracting at 5:10 (i.e. five contractions in 10 min).

At 22:55, an obstetric senior house officer reviewed the cardiotocography (CTG) trace at the request of the midwife because the mother was contracting at 6:10 and there appeared to be reduced variability. The infusion rate was reduced to 2.4 ml per hour.

At 23:10, contractions were noted to be 4/5 in 10 and the infusion was increased once again to 3.6 ml. At 23:35, Syntocinon was increased to 4.8 ml per hour because the midwife did not believe that the mother was contracting effectively. Between 23:00 and midnight, the baseline FHR was around 150 bpm, and rose to 160 in the period to 01:00. There were no accelerations and the baseline variability was more than 5 bpm, i.e. the heart rate was normal.

At 00:30, the midwife performed a further vaginal examination and considered that the cervix was fully dilated. At 01:00, the midwives asked for a doctor to review the trace because of a perceived reduction in variability. Dr Black noted that the foetal heart baseline had risen and that variability had reduced. She also recorded that the mother’s temperature had risen to 38° and that the mother was tachycardic. Dr Black assumed that the foetus had an infection and ordered a blood sample (FBS). She also suggested that the mother should be provided with intravenous antibiotics. She suggested to the midwives that if the blood samples were satisfactory, the mother should be allowed to push, but if abnormal or the CTG deteriorated, there should be an instrumental delivery.

Three blood samples taken at 01:55 were normal and indicative of a healthy foetus. A further vaginal examination concluded that the cervix was not in fact fully dilated as previously thought.

At about 02:00, the Syntocinon rate was increased by a midwife to 7.2 ml, and the FHR baseline was rising to 170 bpm. At 02:45, the CTG was noted to be reactive and there was evidence that the baseline FHR was high.

At 03:00, an examination by Dr Black showed the cervix to be dilated and that the baby was in an OP (occipito-posterior) position, i.e. with the back of its head facing towards the mother’s spine. This position may lead to a prolonged labour and ultimately to the need for intervention.

Dr Black concluded that the mother should commence pushing, her reasoning being that there had been a good FBS at 01:00 and that the CTG was reassuring. There were accelerations and variability had improved.

At 03:22, the mother commenced pushing. The CTG then showed what appeared to be a series of decelerations. At around 03:30, the mother’s uterus was contracting at around 6:10, and at 03:50 there was a deceleration of the FHR to 90–100 bpm with contractions and a quick recovery.

Advice was sought from Dr Black who sanctioned an increase in the rate of Syntocinon infusion to 9.6 ml per hour, because she felt that the mother’s contractions were not effective.

By 04:05, the CTG was reassuring apart from the tachycardia, which Dr Black considered was explicable by the mother’s fever. However, she concluded that spontaneous delivery was unlikely because of the position of the head and the ineffectual pushing to date. She asked the senior registrar (Doctor Cullinane) to review the position.

Dr Cullinane undertook a review at about 04:40. Her plan was to transfer to theatre. At 04:45, the Syntocinon was discontinued, the mother transferred to theatre at 04:55 and at 05:00 Dr Cullinane decided that delivery should be by Caesarean section. The CTG showed an FHR of 160 bpm with good variability, accelerations and no deceleration.

Callum was born at 05:38. It was common ground between the parties that the delay of 58 min between the decision to perform a Caesarean section and actual delivery was acceptable in all the circumstances of this case.

The mother had a persistent fever after her son was born, and chlamydia was subsequently grown from a high vaginal swab. Callum’s condition declined after birth. He started twitching within four and a half hours and was treated with antibiotics. Cranial ultrasound scans taken on 5 and 6 of March were reported as normal, but a further scan on 7 March was markedly abnormal. Callum continued to suffer from fits and there was a failure of normal head growth. A magnetic resonance imaging scan performed on 22 March 2001 showed a normal brain stem and cerebellum, but very severe changes of a generalised cerebral multi-cystic encephalomalacia gliosis and atrophy.

Breach of duty

It was the claimant’s case that from 01:00 there was a clearly documented maternal infection with maternal tachycardia and pyrexia, which could have had a potential effect on the foetus. Additionally, there had been poor progress in labour since 22:50. Callum’s position was OP, which was the least favourable for a vaginal delivery. By 03:00, the baseline of the FHR had increased from 160 to 165 bpm with prolonged periods exceeding 160, in conjunction with reduced baseline variability and no clear accelerations.

It was accordingly alleged that senior input should have been sought. Dr Black was only six months into her first substantive registrar post and, it was alleged, her level of experience and knowledge was accordingly limited. It was further maintained that the trust was negligent not to reduce the level of Syntocinon at 03:30, and actually to increase it at 03:55.

The claimant relied on expert evidence from Dr Katrina Erskine, consultant obstetrician. She said that by 01:50 there was a very high-risk scenario, including such factors as: the mother was 17; she was 42 weeks pregnant; she was being induced and had pyrexia; she had dilated to 9 cm with no further progress, suggestive of a potentially obstructive labour. Moreover, there was foetal tachycardia with reduced baseline variability. By 03:00, Dr Erskine maintained, the mother should have been re-examined and an FBS undertaken. A more senior doctor should have been involved.

The trust, however, maintained that the CTG did not suggest any foetal heart abnormality indicative of hypoxia. The rising FHR baseline was explicable by the fact that the mother was noted to have a fever, and neither the reduced variability nor the rising FHR baseline were or should have been considered suggestive of hypoxia particularly as recurrent decelerations, a characteristic feature of hypoxia, were absent. This view was advanced by Mr Derek Tuffnell, consultant obstetrician, who was the trust’s main expert on breach of duty.

Mr Tuffnell fundamentally disagreed with Dr Erskine’s interpretation of the CTG. He queried Dr Erskine’s use of the phrase ‘atypical acceleration’, which he had been unable to find in the medical literature.

Mr Tuffnell noted that from 03:00 there were clearly accelerations present right up until Callum’s birth. The clinical team were entitled in his view to take reassurance from these, since the likelihood of a baby having a problem if accelerations were present was extraordinarily low. The FBS taken at 01:50 was reassuring. It would be remarkable, in his view, for the foetus to have been severely acidotic so as to cause severe brain injury, and yet to have recovered by the time of delivery; all the more so in a case where the mother had pyrexia.

Discussion

The notes of the midwives and doctors referred throughout the relevant period to accelerations. This was not contradicted by Dr Erskine, but in her joint meeting with Mr Tuffnell she introduced the concept of ‘non-reassuring’ and ‘atypical’ accelerations. When challenged at the meeting to disclose the origins of these terms, she was unable or unwilling to do so.

Mr Tuffnell was one of the authors of the 2007 NICE Guidelines on foetal monitoring, and it would, therefore, be surprising if he was unaware of a term which was in use elsewhere in the world.

The evidence of Dr Erskine on this aspect, therefore, needed to be treated with considerable caution. That caution should be extended to her evidence more generally, insofar as it conflicted with that of Mr Tuffnell. Dr Erskine was an

unimpressive and unreliable witness who seemed more determined to argue the claimant’s case than to give objective assistance to the court and when important features of the records of labour on which the other experts had relied were pointed out to her she sought to explain away their significance rather than accept their significance.

Mr Tuffnell, by contrast, ‘was an impressive witness on whose opinion … the court could place considerable weight’. He was uniquely placed to assist the court on the interpretation of the CTG, having been a member of the committee which put together the 2007 NICE Guidelines. Overall, Mr Tuffnell’s views were authoritative and the court had no hesitation in preferring his evidence to that of Dr Erskine.

Held:

The period of heart monitoring between 23:40 and 01:00 showed reduced variability but was still within the normal range.

In all the circumstances, Dr Black appropriately concluded that there was no indication from the CTG that the foetus was in danger. The continued appearance of accelerations meant that the management of the labour and delivery – supported as it was by Mr Tuffnell and also by Mrs Brydon, the trust’s midwifery expert – was of an appropriate standard applying the principles established in Bolam and Bolitho. The claim therefore failed.

Causation

The judge dealt with this aspect at some length, even though this was strictly speaking unnecessary having regard to his conclusion as to breach of duty.

There was plainly a maternal pyrexia and evidence from the raised white cell count and the results of the ultrasound scan pointed to meningitis as the likely cause of Callum’s brain injury. There was positive evidence of the absence of hypoxia at 01:55, and on the basis of Mr Tuffnell’s interpretation of the CTG, no evidence of hypoxia in the intervening period. It was inherently unlikely, given the appallingly severe injury to Callum, that there could have been damaging hypoxia and therefore a profound acidosis after 01:55 until 04:45 when Syntocinon was discontinued, the evidence for which would have completely disappeared by the time of delivery 53 min later. Accordingly, notwithstanding the absence of any documented evidence of hypotension after birth, the cause of the injury sustained by Callum was infection and not hypoxia. The claim therefore failed on this ground also.

Julian Matthews (instructed by Simpson Millar) appeared for the claimant. Stephen Miller QC (instructed by Ward Hadaway) appeared for the trust.

Comment

On breach of duty, the court was undoubtedly impressed by Mr Tuffnell owing to his authoritative approach and to the fact that he had been one of the authors of the 2007 NICE Guidelines. His analysis of the situation was logical and convincing, whereas the judge took the view that Dr Erskine was less objective than her opposite number and endeavoured to explain away aspects of the evidence which did not support her theory. This was clearly an extremely sad case, partly because of the cause of Callum’s brain damage and also because he died at the age of 12, before this action could come on for hearing. The judge assessed all the evidence very carefully, and made clear decisions based on the competing theories.

Nominal damages for unlawful detention

Bostridge v Oxleas NHS Foundation Trust

(Central London County Court, 4 February 2014 – Judge Hand QC)

The claimant suffered from schizophrenia and had, from time to time, been admitted to hospital and detained there via Section 3 of the Mental Health Act 1983 (MHA). On 16 July 2008, he was admitted and detained under Section 3, and his case was reviewed by the First-Tier Tribunal (Mental Health) on 2 April 2009. This tribunal ordered his discharge, but postponed it until 15 April 2009 so that a Community Treatment Order (CTO) could be put in place.

On 15 April 2009, what purported to be a CTO was implemented, and Mr Bostridge was duly discharged from hospital. The Trust accepted that this process had been fatally flawed because it had overlooked the fact that by Section 17 A(2) MHA only a person ‘liable to be detained in a hospital in pursuance of an application for admission for treatment’ can be made subject to a CTO. Once the claimant had been discharged on 15 April, he was no longer a detained patient, and therefore the CTO was technically unlawful.

The claimant’s condition deteriorated in August 2009, and on or about 19 August the Trust purported to recall Mr Bostridge to hospital and subsequently detained him. The Trust admitted that it had no lawful authority to detain, because Mr Bostridge was not the subject of a valid CTO and therefore any purported notice of recall conferred no authority on the defendant to detain him.

The claimant was detained from 19 August 2009 until 3 November 2010, a period of 442 days. The Trust admitted that this amounted to unlawful detention, and that it was liable for the tort of false imprisonment, and/or that it acted unlawfully pursuant to Section 6 of the Human Rights Act 1998.

Throughout this period of unlawful detention, Mr Bostridge remained ill. His case was reviewed twice by the tribunal, and on both occasions his condition was found to require his continued detention in hospital. It was common ground that he was never aware that his detention was unlawful.

There was likewise no evidence that anyone responsible for the claimant’s mental health care was aware of the fact of his unlawful detention until 3 November 2010. It followed that those responsible for his care acted as if the detention was lawful, and in the same way as they would have acted had it been so.

Dr Faith, an expert physiatrist instructed on behalf of the trust, concluded that the claimant’s readmission to hospital between August 2009 and November 2010 under MHA ‘would have been indicated nonetheless on the basis of his mental state, known vulnerability and the fact that he was refusing medication’. Dr Faith found no evidence that Mr Bostridge had suffered damage during the period of unlawful detention and concluded that the problems he displayed were ‘those of his constitutional disorder unaffected by the consequences of an administrative error’.

The issue before the court was quantum, liability having been admitted.

It was argued on behalf of the claimant that the admitted breaches were matters of substance rather than of procedure. The authorities kept open the possibility of a significant award in such a case. It was emphasised that the tort of false imprisonment was actionable per se, and therefore loss did not need to be proved. In R (B) v Secretary of State for the Home Department [2008] EWHC 3189, the award for false imprisonment amounted to £180 per day. In Muuse v Secretary of State for the Home Department [2009] EWHC 186, the award was £195 per day.

On behalf of the trust, it was argued that none of the authorities supported an award being made where, as here, no loss had been incurred by the claimant. This was particularly so with two recent Supreme Court decisions, namely Lumba and Mighty v Secretary of State for the Home Department [2011] UKSC 12 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23.

Conclusion

The authorities of Lumba and Kambadzi acknowledged three principles:

The tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully;

The submissions on behalf of the trust would be accepted. In Lumba, Lady Hale in the Supreme Court expressly rejected any special categorisation of ‘public law cases’. After Lumba, there was no basis for the argument that, irrespective of loss, the infringement of personal liberty amounting to the tort of false imprisonment must be marked by an award greater than nominal damages. This was made clear by speeches from most of the judges in that case. The majority of the Supreme Court took the view that where there was no loss, ‘the declaration that a claimant’s right has been infringed’ accompanied by nominal damages was sufficient to mark the breach.

In the circumstances, the claimant was entitled to judgment and to nominal damages of £1. Costs would be awarded against the claimant.

Denis Edwards (instructed by Campbell-Taylor) appeared for the claimant. Bradley Martin (instructed by Clyde and Co) appeared for the trust.

Comment

The NHS receives many similar claims, where the detention was technically incorrect but had appropriate procedures been followed the claimant would have been similarly detained in any event, and therefore suffered no specific losses as a consequence of the unlawful procedure. This case, which distils an extremely lengthy ruling from the Supreme Court in 2011, makes it abundantly clear that such claims have only a nominal value. This is arguably entirely equitable because in such circumstances the tort is a technical one only. It is proper that the claimant’s right not be detained unlawfully is recognised, but equally it must surely be correct that damages in such a situation are nominal. The position is, of course, very different where the claimant would not have been detained but for the technical error. In those cases, damages will rightly be substantial, because had it not been for the error the claimant’s liberty would have been preserved.