Abstract
Joshua was born on 8th November 2005 and suffers from cerebral palsy, significant learning difficulties and epilepsy. His condition was caused by brain damage at the time of his birth, which probably occurred owing to cord compression. Damage was suffered from 14:03 hours on 8th November 2005 until his birth at 14:22 hours.
On behalf of the claimant it was alleged that the cardiotocograph trace taken between 11:08 and 11:55 showed two decelerations, which should have led to a medical review at 11:55 as opposed to discontinuance of the trace by the midwife. Alternatively, it was claimed that because the trace was not reassuring it should have continued until about 12:20 when there should have been a medical review because the trace would have continued to be non-reassuring. Medical review would have recommended continuing with the trace, with advice that if there were to be a further deceleration Joshua should be delivered by Caesarean section. As a result, Joshua would have been born before 14:03 when the brain damage commenced.
The trust maintained that CTG trace between 11:08 and 11:55 did not justify medical review, only further monitoring. The latter could not take place because Mrs Tippett had removed the trace and left her room. When she returned to the room the trace was reconnected at 13:31. At 13:53 when umbilical cord compression occurred everyone reacted promptly and an emergency Caesarean section was carried out. Even if monitoring had been continued between 11:55 and 13:31, Joshua would not have been born before 14:03 when the damage commenced.
The notes recorded that Mrs Tippett had agreed a planned delivery at 36 weeks gestation, either via induced labour or Caesarean section depending on the circumstances. She had been an in-patient on the antenatal ward at St Thomas’ Hospital from 4th November 2005, and on the morning of the 8th she was in a side room. Midwife Nanseera saw her at about 11:08 and noted that she was 35 weeks and 2 days pregnant, with a plan for induction at 36 weeks. She commenced a CTG trace at 11:08 and this recorded normal pulse, blood pressure and temperature.
The trace ended at 11:55. Mr Tippett, in a witness statement, recollected that the midwife had taken off the trace ‘about midday’. In cross-examination, however, he conceded that parts of his statement were incorrect. He added that the events occurred 8 years previously and he had no recollection. He accepted that he did not remember who took the trace off, and whilst he initially said ‘it was not me or my wife’ he also said ‘it could have been my wife I suppose so’.
Held: It was not possible to put any sensible reliance on Mr Tippett’s evidence.
Mrs Tippett said in evidence that she remembered Midwife Nanseera taking the CTG trace off and was quite sure about that. However, in her statement she had said that she had no real recollection of who had removed the trace.
Held: Mrs Tippett’s oral evidence about who had removed the trace was not capable of being relied upon.
Midwife Nanseera said that she popped into the patient’s room every 10 minutes or so to check on progress, but that around midday she found that Mrs Tippett was not in her room and that CTG monitor belt was lying on the bed. She denied stopping the CTG at 11:55, and said that she had wanted to continue the trace because it was not reassuring. She accepted that she did not make a note at 12:00 hours when she found the room empty, because the ward was very busy and she was performing observations on nine patients. She accepted that she was wrong not to do so, but neither of the midwifery experts criticised her for this.
The midwife said that the readings up to 11:55 were neither very good nor very bad. The dips had not worried her much but there were no accelerations.
Held: Midwife Nanseera was doing her honest best to recall matters. Mr and Mrs Tippett were not deliberately lying, however, and it was perfectly apparent that the recollection of honest witnesses can vary over time. It was not possible to place any sensible reliance on their recollection about who had removed the trace. Mrs Tippett had removed the trace, but removal did not jeopardise her baby.
The main dispute between the expert witnesses was whether aspects of the trace at 11:34 and 11:52 were decelerations or just dips. The judge preferred evidence of the defence experts, Ms Jennifer Fraser (midwife) and Mr Derek Tuffnell (obstetrician) on this point, noting that Mr Tuffnell had served on the National Institute for Health and Care Excellence committees which reviewed and drafted guidelines to the profession on CTG traces. Accordingly, there was no obligation on the part of the midwife to call for a medical review at 11:55 because there were no decelerations. Equally there was no duty on her to tell Mrs Tippett that the trace was not satisfactory.
In the light of what occurred on the trace between 13:31 and the bradycardia at 13:53, if the trace had continued after 11:55 it would have continued to be unsatisfactory. In those circumstances, by about 12:20 a medical review would have been called for. However, that was likely to prompt a further request for CTG monitoring and that would probably have lasted from about 12:30 to 13:30.
Even assuming that the further trace continued to be unsatisfactory, the evidence of Mr Tuffnell was to be accepted, namely that a further discussion would then have occurred, and that if any action had been taken, labour would have been induced, perhaps after a scan had been carried out. Such an approach would have been consistent with the plan agreed for Mrs Tippett on admission, and because there would have been no obstetric indication for a Caesarean section. There would not been any decelerations to trigger an urgent Caesarean. The trace between 11:08 and 11:55 was unsatisfactory but not pathological or sinister. In those circumstances, even if Mrs Tippett had not removed the CTG trace, the outcome for Joshua would have been the same.
Mr Tippett maintained that he had connected the CTG trace at 13:31, but this was denied by Midwife Nanseera who stated that she clearly recalled having performed the reconnection herself when she found Mrs Tippett back in her room. Held: Midwife Nanseera was to be believed.
At 13:53 there was an abrupt bradycardia with the foetal heart rate dropping to 60 bpm. It rose to 100 at 13:55, but dropped again to 80 bpm and did not recover. At 14:02 the midwife pressed the emergency buzzer. Medical help arrived and an immediate emergency Caesarean section was carried out under general anaesthetic. Joshua was delivered at 14:22.
Summary: Mrs Tippett removed the trace at 11:55 and it was reconnected by Midwife Nanseera at 13:31. There were no decelerations on the trace between 11:05 and 11:55. If monitoring had continued at 11:55, then by about 12:20 a medical review would have been sought. This would not have been because of decelerations, but because the trace remained unsatisfactory. The doctor who would have attended would have called for a further trace to be carried out. Even if that had continued to be unsatisfactory it would not have led to a Caesarean, but rather an induced labour, perhaps after a scan. Joshua would not, therefore, have been born before the umbilical cord compression occurred at 13:53. For all these reasons, the claim would be dismissed.
Martin Spencer QC (instructed by Pattinson & Brewer) appeared for the claimant. Philippa Whipple QC (instructed by Bevan Brittan) appeared for the Trust.
Comment
It is most unusual for a dispute between the factual witnesses to play such a prominent part in an obstetric negligence claim. However, as the judge explained, his findings on this dispute were not determinative of liability. Even if the trace had carried on after 11:55 the outcome would have been the same. What this case does highlight very forcibly is that the midwife in question, against whom the serious allegations were made, had those allegations hanging over her for many years before her version of events was fully accepted by the judge. This is not to diminish the serious nature of the injuries suffered by Joshua, but clinicians can be the hidden victims in clinical negligence cases.