Abstract
Mrs Maher died on 2nd April 2004 in Rochdale Hospital, two days after having undergone an emergency Caesarean section. She had been delivered of a healthy girl at 05:37 on 31st March.
Death was a result of multi-organ failure arising from severe blood loss. The latter was caused by a rupture in the posterior wall of the uterus. This rupture did not occur as a consequence of the Caesarean section, but rather due to contraction against obstruction whilst the baby was still in utero. It was accepted by those representing the deceased that the haemorrhage could not have been noted at the time of closure of the section, even with the exercise of reasonable skill and care.
Thereafter, however, blood loss continued and went unnoticed. Mrs Maher was transferred to the post-natal ward at 06:50, and the trust admitted that there had been an unacceptable delay in returning her to theatre for a laparotomy to investigate the cause of her deteriorating condition and to prevent further blood loss by means of hysterectomy. The defendants accepted that had reasonable care been provided, return to theatre would have been by about 09:30, with laparotomy commencing at 09:45. In fact, transfer did not occur until about 10:30 and the procedure ended at 11:10.
Nevertheless, the trust argued that this delay made no difference to the outcome, because even if surgery had taken place by about 09:45, the blood loss experienced by then would, in the absence of transfusion, inevitably have resulted in death.
Importantly, it was agreed that had Mrs Maher accepted blood, she would have survived with transfer to theatre at 10:30.
The trust had a protocol for dealing with patients who declined blood products. This stated that a Jehovah's Witness is one hundred times more likely to die from haemorrhage than others. It stipulated that the principal management of haemorrhage was to avoid delay, and that the threshold for intervention should be lower than in other patients.
It was argued on behalf of the deceased, that the defendants knew that Mrs Maher was at an increased risk of haemorrhage, and that owing to her religious persuasion any signs of haemorrhage required urgent if not immediate consideration.
Following the Caesarean section, the deceased was transferred to the post-natal ward at 06:50. Dynamap recording of blood pressure and pulse was untaken every 15 minutes. On transfer, Mrs Maher was noted to be pain-free.
At 08:45, the patient was examined and noted to look “extremely pale”. At 08:50, staff were concerned at the falling blood pressure (BP) and rising pulse. At 08:57, Mrs Maher said she was in pain and had operated her PCA (Patient's Controlled Analgesia) 297 times with 22 effective doses.
At 09:15, abdominal pressure resulted in a gush of blood from the vagina. Again, at this time, Mrs Maher was noted to look very pale.
She was transferred to the high dependency ward at 09:40 (or possibly 09:30) and was still fully communicative at this point. The consultant obstetrician was notified of the situation at 09:15, but he did not arrive until 10:25. A decision to transfer to theatre was taken at 10:15, and transfer occurred at 10:30. Even at this point, Mrs Maher was able to give clear instructions that she did not wish to receive blood.
Mr Recorder Hinchliffe observed that it was reasonable to conclude that no staff checked the patient between 07:25 and 08:45, which on any view amounted to an extraordinary lack of care. So too did failure to transfer to theatre until 10:30. None of the experts pointed to any diagnosis other than a concealed haemorrhage, and that appeared also to have been in the minds of the attending clinicians.
It was agreed by the expert obstetricians that from commencement of anaesthesia to stopping the bleed would have taken about 35 minutes.
As to the expert midwifery evidence, that of Mrs Johnson for the claimant was to be preferred. She suggested that medical staff should have been summoned by 08:21 at the latest. This was because the Dynamap reading at this time was “alarming”, since pulse had increased to 140 and BP had declined to 107/174. Staff should have realised by 08:21 at the very latest, that a life-threatening situation had potentially arisen. It was known that Mrs Maher was a Jehovah's Witness and would not accept blood products. The trust's own protocol stated that time was of the essence in such cases. Had a crash call been made, the latest realistic time for the emergency team to arrive would have been about 08:25.
Turning to the expert obstetricians, Dr Brunskill for the deceased argued that Mrs Maher should have been transferred to theatre by 08:40, with the haemorrhage being controlled by 09:05 at the latest. Mr Tuffnell, for the trust, argued that with reasonable care Mrs Maher should have been in theatre by 09:30. Held: whilst some of Dr Brunskill's timings were unreasonable, Mrs Maher should have been transferred to theatre by 08:40 at the latest and the bleed should have been stopped by about 09:15.
Whether Mrs Maher would have survived (in the absence of transfusion) had the bleeding been stopped at 09:15 was a very difficult question. Expert anaesthetists gave evidence on this point. Dr Lyons, for the trust, considered that bleeding ought to have been stopped by 09:00 at the latest, for the patient to have survived. Dr Park, for the deceased, took the view that had the operation
On balance, Dr Park's view was too sympathetic towards the claimant's case. Dr Lyons was more measured in his approach, but this was not simply a case of preferring one expert to another. There were certain points which Dr Lyons had not taken into account or explained fully, whereas the reasoning of Dr Park was compelling, subject to one caveat. On balance, had surgery been commenced at 08:40, resulting in stopping the bleeding by 09:15, Mrs Maher would have had a slightly better than even chance of survival.
However, the trust also argued that the deceased's refusal of blood broke the chain of causation. Neither counsel had discovered any civil authority on the point, although there was a criminal case, R v Blave (1975) 1 WLR, where no break in the chain of causation arose when the victim died as a result of refusing a blood transfusion. Lawton LJ in that case did not suggest that matters would be different in a civil claim.
Held: given that Mrs Maher was a Jehovah's Witness, it could not be said that she was acting unreasonably in refusing a transfusion. The trust knew of her religious belief, and knew that she would refuse a transfusion even if her life depended upon it. The trust had a protocol to deal with this situation.
The defendants were not responsible for causing the blood loss but were responsible for allowing it to continue for such a time that the patient died. This conduct was a substantial and proximate cause of death. In the absence of a blood transfusion, death was inevitable. The trust knew that no transfusion could take place.
The trust suggested that Article 9 of the European Convention on Human Rights (Freedom of Thought, Conscience and Religion) was of relevance. However, it had not been argued on behalf of the deceased that her Article 9 rights had been interfered with. In fact, this was not a case about Article 9 at all. It was a case of tort. Was it reasonable for the defendants to bear the burden of the claimant's religious beliefs? In the court's view it was reasonable, given the circumstances of this case. The court was not prepared to pretend that Mrs Maher was not a Jehovah's Witness. It was not right, when considering the question of fairness in deciding who should bear the responsibility of her death, to exclude the reason why she acted as she did.
Accordingly, there would be judgment against the defendants. This would be for the agreed sum of £375,000.
John McNeill (instructed by Forbes) appeared for the deceased. Charles Feeny (instructed by Weightmans) appeared for the trust.
Comment
This was an extremely interesting decision because it appears to have been the first in a civil claim where responsibility for the consequences of the claimant's religious beliefs had to be decided. Critically, it had been agreed that had the deceased accepted a blood transfusion, she would have survived, even if the operation had ended as late as 11:10, i.e. when surgery actually ended in fact. In other words, despite the trust's admitted breach of duty concerning delay, Mrs Maher would have survived. The judge took the view that because Mrs Maher was complying with her religious belief, she was not acting unreasonably. The trust knew that she was Jehovah's Witness and that she would therefore refuse blood, even in a life-threatening situation. The trust had a protocol covering this situation, which stipulated that the principal concern was to avoid delay and that the threshold for intervention should be lower than for other patients. The trust was in breach of its own protocol, and this led to the claimant's death. This conclusion has a certain logic to it, but its implication is that the NHS (and indeed other defendants) should bear the burden of the claimant's religious beliefs, which is highly contentious. There must be a strong argument for suggesting that individuals, and not potential defendants, should bear the consequences if their beliefs cause them to suffer injury or even death. On the other hand, it is a well established principle at common law that the defendant must take the claimant as he finds her.