Update: clinical negligence

The courts have had to consider the issue of whether a GP should have referred the child claimant to hospital in two recent cases.

In Alice Mary Fallon v Dr John Wilson [2010] EWHC 2978 (QB), Eady J considered whether an experienced GP should have referred the claimant, who had been born prematurely at 27 weeks about ten weeks earlier, back to hospital following a consultation.

There was a factual dispute as to the claimant's condition at that consultation, although the defendant could not recall the detail and was reliant upon his medical notes. However, the two GP experts agreed that, if the claimant's presentation was as described by her mother, she should have been referred to hospital.

On the basis of the claimant's history and her mother's factual evidence, the judge concluded that the claimant on presentation had been pale, clammy, with a blotchy neck and face, with slow irregular breathing, a wailing sound on exhalation and a low temperature. On the basis of these factual findings, the judge found that it was inadequate for the defendant to advise that the claimant simply be kept warm and she should have been referred to hospital.

The judge further found that if the claimant had been referred to hospital, arriving at 6pm, some 45 minutes earlier than actually was the case, the hospital staff would have recognised that she required specialist intensive treatment, she would have reached the special care baby unit by 6.45pm and she would have been incubated and ventilated shortly thereafter.

Her peripheral perfusion failure, which, on the facts, probably occurred between 7.15pm and 8.15pm, and which led to her hypoxic brain injury, would have been avoided, and thus her severe quadriplegic cerebral palsy would also have been avoided.

Out of hours

The second case was against two GPs and a hospital, involving a 14-year-old brain damaged claimant (Morwenna Ganz v (1) Dr Amanda Childs (2) Dr John Lloyd (3) Kingston Hospital NHS Trust [2011] EWHC 13 (QB)). Here, Foskett J had to consider whether the claimant's presenting clinical features (which were subsequently discovered to be due to mycoplasma pneumonia) warranted earlier admission to hospital and earlier treatment on arrival at hospital; and, if so, whether such earlier admission and treatment would have avoided her brain damage.

The claimant, having been unwell for a few days, visited the first defendant at the GP surgery on Saturday morning. The first defendant considered that the claimant simply had a viral illness and arranged for some investigations to take place after the weekend, but did not admit her to hospital.

However, the claimant deteriorated during the course of the day and the second defendant was contacted by the out-of-hours service in the early hours of the following morning, Sunday. The second defendant did not visit and simply advised the claimant's mother to wait and see how the claimant was later that morning. The claimant was eventually admitted to Kingston Hospital at 10.22am that day, having deteriorated further.

Before the trial, the second defendant had admitted breach of duty, in that he admitted he should have attended the claimant after contact with the out-of-hours service and that this would have resulted in urgent admission to hospital; and the third defendant had admitted that there were some delays in both diagnosis and treatment on the claimant's arrival at Kingston Hospital. The first defendant, however, denied breach of duty and all three defendants denied causation of the claimant's brain damage.

On the issue of the remaining breach, the judge considered that the first defendant should have referred the claimant to hospital following the consultation on the Saturday morning on the basis that, once the question of pneumonia had raised itself in her mind, which she accepted it had, it was too much of a risk not to arrange for the claimant's admission.

Further, in what was a complex case, the judge found the cause of the claimant's brain damage to be combined hypoxia and hypocapnia rather than mycoplasma encephalitis. The judge found that, absent the first defendant's breach, the claimant would and should have been admitted to hospital by midday on the Saturday; or, absent the second defendant's breach, by 5am or 6am the next day. Had she been admitted by these times, she would not have suffered with the combined hypoxia and hypocapnia and would not have suffered the resultant irreversible brain damage from which she did suffer.

The judge further found that it was likely that the claimant's susceptibility to such damage was caused by an underlying, as yet unidentified, condition, but that the defendants must take the victim as found and the presence of such a condition did not operate to absolve a tortfeasor from responsibility for damage caused. However, the Kingston Hospital delays had not caused or materially contributed to the claimant's brain damage.

The case against the first and second defendants was made out, therefore, but not the case against the third defendant.

In April Jane Dainton v Hazel Powell [2011] EWHC 219 (QB), Swift J considered whether a GP had breached her duty of care in failing to identify congenital dislocation of the hip (CDH) and in failing thereby to refer the claimant to an orthopaedic specialist when the claimant was nine weeks' old in 1988 '“ her CDH subsequently having been diagnosed in 1995 when the claimant was aged seven.

The judge considered that it was clear from the SMAC (Standing Medical Advisory Committee) guidance in 1986 that it was important to detect CDH as soon as possible and that GPs involved in screening infants at that time should have been aware of what signs to look for and of the importance of investigations if CDH was suspected.

The claimant was later diagnosed with a full dislocation, so the judge considered that she must have had some instability from birth. Indeed, examination by another GP at seven weeks of age revealed some 'stiffness' in the hip, which was probably due to a limitation in abduction due to a full dislocation present at that time.

When the defendant GP subsequently examined the claimant two weeks later, the limitation of abduction should also have been detected, but was not. It was, therefore, inappropriate to advise a review in nine to 12 months' time and specialist orthopaedic referral should have taken place immediately after the consultation; at the very least, the claimant should have been brought back for re-examination within two to three weeks.

If such a referral had been made, an x-ray would have been performed and a diagnosis of CDH would have been made. Closed reduction, plaster immobilisation and splinting for three months would have taken place, and on balance no disability would have occurred until middle age.

Considering causation

In two recent obstetric cases, there has been focus on different aspects of causation. In MacMillan Goncalves v Newham University Hospital Trust (unreported, 24 November 2010, QB) Mr John Leighton-Williams QC, sitting as a deputy high court judge, had to consider in detail the timings of a second twin's delivery in relation to avoidance of his brain injury.

The claimant, a second twin, was born by emergency caesarean section (ECS) at 7.47pm, 37 minutes after the birth of a first twin, Maxwell, who was born in a healthy condition. The claimant suffers with dyskinetic quadriplegic cerebral palsy and the case was complicated by the absence of the twins' mother's clinical records, obstetric and midwifery records and the cardiotocograph (CTG) traces.

The claimant had been a breech delivery and claimed that a ten to 15-minute delay in his delivery from the time that a bradycardia was discovered resulted in hypoxia and subsequent brain damage, part of that delay being due to the delay in the obstetric registrar's attendance. The defendant averred that the claimant's delivery was achieved within 17 minutes of the bradycardia, which was acceptable.

The expert paediatric neurologists agreed that: if the claimant had been delivered within ten minutes of the acute onset of fetal asphyxia, he would have avoided brain damage; if delivery had been within ten to 15 minutes, there was a chance he would have avoided brain damage (which the judge accepted as a 'grey area'); and that the bracket for the damaging hypoxia was 16 to 25 minutes.

On breach of duty the judge found that the claimant's breech presentation should have been discovered shortly after the first twin's birth at 7.10pm, such that the obstetric registrar should have been summoned to and attended at the delivery room no later than at 7.20pm. The registrar would then have been in a position to detect and act upon the cord prolapse and bradycardia on occurrence.

On the factual evidence, the judge found that the bradycardia commenced at some point between 7.25pm and 7.30pm and concluded that the onset of hypoxia/asphyxia was at 7.28pm. The delay in the obstetric registrar attending was of the order of eight to ten minutes, which meant that the time between the decision to perform ECS and delivery was about nine to 11 minutes, and this was during a situation of panic.

On causation, the judge concluded: 'With the onset of asphyxia/hypoxia at about 7.28pm, with the obstetric registrar present and with the team ready to act, [the mother] could and should have been taken to theatre very quickly. Given that CS incision to delivery would take about two minutes'¦ it seems to me quite reasonable to have expected [the claimant] to have been delivered and resuscitated, if such was necessary, within about ten minutes.'

The judge found that, had this occurred, it would have avoided the claimant suffering with any of his injuries.

In the second case, Brodie McCoy v East Midlands Strategic Health Authority [2011] EWHC 38 (QB), Slade J had to consider the analysis of a CTG trace.

The claimant suffered with diplegic cerebral palsy and claimed for the defendant's failure to carry out a further CTG trace on 17 March, five days before the claimant was born, claiming also that the further trace would have shown a worsening fetal heart pattern such that earlier delivery (by induction or more likely caesarean section the following day) would have occurred, avoiding her brain damage. The defendant disputed breach of duty and causation, the latter on the basis that a repeat trace would not have led to a decision to intervene any earlier than was actually the case.

On the facts of the case, the judge considered that there were two concerning decelerations in the trace but there were also a number of reassuring features; that the claimant had not established on balance that the CTG was suspicious, but nor had the defendant established that it was normal; and, rather, the trace needed to be continued or repeated.

The judge, therefore, found that the staff grade obstetrician had negligently interpreted the CTG trace as satisfactory and negligently failed to restart the CTG, or at least to re-admit the claimant's mother to enable a repeat CTG. The doctor had considered the trace as satisfactory without clear evidence of whether, and if so when, the fetal heart rate returned to normal after a drop some 15 seconds before the CTG was switched off.

The parties had agreed that the damage from the hypoxia had probably occurred between 24 and 48 hours before delivery. However, as the judge found that the claimant had not succeeded in showing that a continued or repeated trace on 17 March would have been either suspicious or pathological, earlier intervention had not been warranted and, therefore, the claimant's brain injury would not have been avoided. The claim, therefore, was dismissed.