Abstract
Omar Gossland, who was born on 8 April 1991 at the Norfolk and Norwich Hospital, suffered sino-venous thrombosis (SVT) in the newborn period, which resulted in cerebral palsy and severe learning difficulties. No criticism was made of the neonatal care.
The claimant alleged that SVT was attributable to:
A traumatic delivery by Keilland's forceps, complicated by shoulder dystocia (without Erb's palsy); Intrapartum hypoxia.
It was alleged that these problems would have been avoided if the Claimant had been delivered by Caesarean section. It was claimed that the persistent tachycardia and other non-reassuring features on the CTG trace indicated fetal distress and therefore mandated the taking of a fetal blood sample. This would have shown acidosis and thus prompted a Caesarean delivery. Other factors, including the slowness of labour and a midwife's suspicion that the Claimant was a large baby, made it unreasonable to allow labour to proceed.
The Judge found in the Health Authority's favour on all the issues of fact. He was satisfied there was nothing, apart from the Claimant's mother's own impression that the baby was large and a single note written by the midwife during labour, to alert the medical staff to Omar's size. This information was not such as to cause a competent medical team to proceed to anything other than a normal vaginal delivery.
Although the Judge confirmed he thought the Claimant's parents were honest witnesses, he did not accept their evidence that the obstetrician had put his foot on the mattress and used his leg to gain traction during the forceps delivery; and he was not persuaded that an unacceptable degree of force was used. He thought that after so many years, the parents probably had only a partial recollection of what had happened.
The attending obstetrician was seriously ill and lived in the USA so was unable to give evidence in person. The Judge confirmed he did not draw any unfavourable inferences from the obstetrician's failure to give a detailed description of the forceps delivery in his witness statement.
Mr Nick Johnson, the Claimant's obstetric expert, was severely critical of the obstetric management in his report. However, under cross-examination, he acknowledged he had misread some of the medical records material to the breach of duty issues and admitted that his report contained exaggeration and hyperbole.
Mr Ian MacKenzie, the Health Authority's obstetric expert, maintained his opinion throughout the trial that all aspects of the obstetric management were reasonable and acceptable, according to the standards of the time.
In his judgment, Plender J referred to the errors and hyperbole in Nick Johnson's report and the concession he made during cross-examination. He said Mr Johnson ‘had the advantage’ over Mr MacKenzie of being engaged in current obstetric practice, but he acknowledged Mr MacKenzie had been in clinical practice for many years, including the time when the Claimant was born. He concluded: ‘Overall I had no hesitation in preferring the evidence of Mr MacKenzie’.
The Judge accepted that some obstetricians may have performed a Caesarean section, or managed the labour and delivery differently; but he could not conclude that the obstetrician's actions were negligent. He accepted Mr MacKenzie's evidence as the basis for finding the labour was not obstructed; there was no ‘complicated’ tachycardia and it was not mandatory to take a fetal blood sample at any stage. Consequently, breach of duty was not made out.
The causation issues were particularly complex. Dr Simon Newell, the Claimant's neonatology expert, argued that intrapartum hypoxia (although not causing any injury in itself) made the Claimant less able to cope with the stress of his delivery. He believed the flow of blood to the Claimant's head was disturbed between the application of forceps and delivery of the shoulder, which caused thrombus in the venous sinus. He did not consider the fact the Claimant suffers from Protein C deficiency, which increases the risk of blood clots, played any part in his SVT.
The Health Authority argued the Claimant could not prove his case on causation. The haematology experts (Dr David Perry for the Claimant and Dr Trevor Baglin for the Health Authority) both confirmed that Protein C deficiency is capable, in itself, of causing SVT and it was argued on behalf of the Health Authority that this was the most likely explanation for Omar's injuries.
Dr Anthony Emmerson, neonatology expert for the Health Authority, explained that the medical literature does not demonstrate a causal connection between birth trauma or fetal distress and SVT. Some authors have suggested there could be an ‘association’, but analysis of their case studies and methodology shows it would be unsafe to take these as proof of a causal link. Furthermore, no author had been able to explain the mechanism by which such factors could make blood more coagulable. It is also necessary to distinguish between literature relating to SVT (as suffered by the Claimant) and intra-ventricular haemorrhage (‘IVH’), where different considerations apply.
The Judge preferred the evidence of Dr Emmerson. He noted particularly that Dr Emmerson had been very careful to distinguish between medical research suggesting an association between birth trauma and SVT and the issue of whether there was a proven causative link between the two. He was not satisfied the Claimant had established that birth trauma can cause cerebral thrombosis; and any associations identified in the medical literature did not amount to proof.
In the circumstances, it was not necessary to determine whether the Claimant had been exposed to risk factors for SVT by the conduct of the Health Authority; but if it had been necessary to determine that issue, the Judge would have concluded in favour of the Defendant.
Plender J confirmed he agreed with Dr Emmerson that the Claimant had suffered a spontaneous haemorrhagic infarction, which gave rise to his brain injuries. The claim therefore failed.
John Stevenson (instructed by Howes Percival) appeared for the Claimant. David Westcott QC (instructed by Kennedys) appeared for the Health Authority.
Comment
This case is chiefly interesting because of the causation issues. The various academic papers adduced by the Claimant's expert witnesses described a possible association between certain risk factors, such as perinatal distress, and the manifestation of SVT among neonates with inherited Protein C deficiency. However, ‘association’ is not the same as proof of causation. The judge quite rightly concluded that causation needed to be determined on the balance of probabilities. The papers did not contain sufficient evidence to enable the Claimant to overcome that hurdle. Indeed, the conclusions of some papers were heavily qualified, and the methodology of others was questionable.