Abstract
This was a claim for psychiatric injury by the mother of twin daughters born on the 28 June 2008. She maintained that she was shocked by the sight of one of them, L, who had been seriously damaged during an instrumental ventouse delivery at St George’s Hospital in Tooting. She claimed that this was a horrifying event, which caused post-traumatic stress disorder. She maintained that she was a primary victim of the event or, failing that, a secondary victim.
There was no dispute that the claimant had suffered from, and sought treatment for, depressive symptoms but it was not until 2011 that she formulated a claim for damages linked to any specific event.
In her statement, she accepted that she did not witness the failed ventouse birth, which was the allegedly negligent event. However, she recalled holding her twins in her arms in recovery and being “really shocked” at seeing L’s bruising for the first time.
Held: bruising, however unpleasant, is a natural phenomenon of any non-negligent ventouse birth.
The claimant also alleged that when she first saw L in the neonatal intensive care unit, some 15 hours after her birth, she had a mask over her head and nose and was being administered fluids through five cannulas. She maintained that she was shocked by seeing her baby in this state and broke down crying.
The claimant’s expert psychiatrist was Dr. Winbow. In his report dated 13 December 2011, he did not detail any specific traumatic event giving rise to Ms Powell’s psychiatric condition. However, in his second report dated 5 August 2013, he stated that the shock of seeing the damage to L’s head caused by the ventouse delivery, and the shock of finding out about L’s problems in intensive care, were “events” causing the psychiatric injury.
Dr. Winbow considered that Ms Powell was not suffering from PTSD but rather from “mild symptoms of PTS”. However, later in his report, he identified “adjustment disorder and moderate depressive episodes” as resulting from the claimant seeing the incubator containing her baby.
Dr. Reveley was the Trust’s expert psychiatrist. She concluded that there was no specific horrifying event at the hospital causing any recognised psychiatric injury. She considered that Ms Powell had suffered from depression caused cumulatively and successively by other events in her history, namely the death of her grandfather, unsatisfactory housing, post-natal depression and a very difficult relationship with a former boyfriend. Dr. Reveley maintained that the claimant would have suffered from depression irrespective of events surrounding L’s birth.
Held: the burden was upon the claimant to prove her claim. Contemporaneous records did not support her case that she suffered from intrusive thoughts and flashbacks about L’s birth from the start. On the 21 November 2008, she attended her GP complaining of depressive symptoms and was diagnosed with post-natal depression. On 15 January 2010, she attended group counselling but there was no recorded reference to intrusive thoughts or flashbacks. It was not until Professor Levene, an expert paediatrician, saw L in the context of L’s medico-legal claim that the possibility that Ms Powell might have PTSD was raised. Her account developed from there as part of the litigation process.
It was not until the 6 July 2012 that a detailed clinical examination and historical review of the claimant and her records was undertaken by Dr. Reveley. She was “a most impressive witness presenting empirically based expert opinion evidence, unlike Dr. Winbow whose opinions were rather incoherent not being soundly based evidentially and hence unreliable.”
The evidence of Dr. Reveley was to be accepted. The claimant did not have any traumatic experiences associated with the birth itself. She was traumatised and upset by seeing her daughter in the incubator and also by being informed about her daughter’s condition. She was a secondary and not a primary victim of any tort and she did not develop PTSD or an alternative condition such as adjustment disorder. No psychiatric injury was caused by the birth of L. The theses put forward by Dr. Winbow were unfounded. This is a classic case where the ‘truism’ is apposite: the claimant’s memory has become fainter whilst her imagination has become more active with the passage of time and the onset of litigation – and understandably so as one can only have sympathy for the plight of the claimant with a severely disabled twin daughter.
The claimant had failed to prove her claim on the balance of probabilities and therefore failed in her action.
Robert Glancy QC (instructed by Pattinson and Brewer) appeared for the claimant. Edward Bishop QC (instructed by Bevan Brittan) appeared for the Trust.
Comment
The Judge, having weighed up the evidence and in particular the opposing views of the respective psychiatric experts, came down firmly on the side of the defence. If there had been negligence during the course of the instrumental ventouse delivery, the claimant had not seen that particular event and that put her at a disadvantage under the Alcock test. Furthermore, and critically, there was no evidence that any of the claimant’s psychiatric problems had been caused by witnessing the birth of her daughter or its immediate aftermath. The Judge therefore had little difficulty in finding against the claimant. His views on the claimant’s psychiatric expert are trenchant.
Learning points
Select your expert psychiatrist carefully. Following a recent glut of secondary victim claims, not least against the NHS, the courts seem to be adopting an approach which is relatively robust.