NKX v Barts Health NHS Trust [2020] EWHC 839 (QB)
This article originally appeared in Issue 6 (September 2020).
The Facts
This was a liability only hearing where the Claimant alleged that his mother was given insufficient warning that she should have continuous fetal monitoring (“CFM”) when she was in labour; that if she had been given appropriate warnings she would have accepted CFM rather than, as in fact occurred, monitoring by intermittent auscultation (“IA”); that CFM monitoring would have detected abnormalities of the fetal heart earlier; that as a consequence a uterine rupture would have been detected more quickly, with consequently speedier delivery, thus avoiding some of the acute profound hypoxia that accompanied the uterine rupture and some or all of the permanent brain damage resulting from it. The Claimant’s secondary case was that IA should have increased in frequency from the point at which midwifery staff should have known or assumed that his mother was in the second stage of labour, and that such an increase in frequency would, again, have resulted in earlier detection of the uterine rupture.
The issues
Simon Maskrey QC identified the central issue in respect of breach to be whether the Claimant was given sufficient information that there was a risk of later detection of uterine rupture if the monitoring was by way of IA rather than CFM, with a consequent increased risk of permanent brain damage. The Claimant’s case was that his mother did not appreciate these consequences of her decision to opt for delivery in a birthing centre without access to CFM, it not having been made clear to her by midwifery staff either when discussing options for delivery or when she arrived at the hospital in labour. It is the Defendant’s case that the mother opted for delivery in the birthing centre monitored only by IA fully aware of the risks and benefits of so doing and exercising her undoubted right to choose how and where she would labour and with what monitoring.
Judgment – breach
Simon Maskrey QC found that, following her initial midwife consultations, the Claimant’s mother understood that she was a candidate for Vaginal Birth After Caesarean (VBAC), that VBAC was high risk and that there would be close monitoring as VBAC had a small (less than 1%) risk of a uterine rupture. The Claimant’s parents were adamant that while they understood there was a very small increased risk of uterine rupture, they did not appreciate that there was a consequent risk of permanent brain damage. They maintained they did not appreciate that CTG monitoring was designed to give early warning of uterine rupture. Simon Maskrey QC found that, while the parents had been informed of CTG monitoring, it was not described in any detail, in particular as to any differences between IA and CTG. He further accepted that the Claimant’s parents did not appreciate that hypoxia could result in permanent brain damage.
However, when it came to the stark differences in the accounts given by the Claimant’s mother and the consultant midwife as to the critical follow up consultation at which the definitive birth plan for a water birth in the birthing centre was formulated, Simon Maskrey QC broadly found against the Claimant.
He held that the consultant midwife informed the Claimant’s mother that IA was not recommended by the Royal College of Obstetricians and Gynaecologists; that a uterine rupture was a small possibility but that CFM reduced the risk of a rupture damaging the baby; that CFM was available in one room in the delivery suite but might not be in the birthing centre; and that if the mother wanted to labour in the birthing centre without CFM that would only be possible if staffing levels permitted. He concluded that the Claimant’s mother did appreciate the difference between CFM and IA, and that CFM carried a greater chance of detecting a rupture than IA. This was on the basis in particular that: (1) a person of the Claimant’s mother’s intelligence would have appreciated the IA was different from CFM, and was plainly not the close monitoring as was standard for a VBAC; (2) the Claimant’s mother had been told that CFM was the standard close monitoring offered; (3) the absence of specific reference to the risks and consequences in the record did not cause any doubt that the risks and consequences were discussed.
Accordingly, the consultant midwife had done enough to inform the Claimant’s mother of the risks of having IA, and the Claimant’s mother had appreciated that CFM was better for the baby than IA. The consultant midwife had appropriately balanced the need to make it clear that IA was not recommended by the hospital or the Royal College with the need to support the Claimant’s mother in the choice that she took. Critically he held that:
“whatever the perceived deficiencies of the antenatal counselling I find that the Claimant’s mother knew of the increased risks of having a water birth with IA as contrasted with labouring with CFM whether in a pool or otherwise. She may not have appreciated that hypoxic-ischaemic encephalopathy could lead to brain damage but she knew that it was “bad for the baby” and in my judgment that sufficed.”
Simon Maskrey QC went on find that once the Claimant’s mother was in labour, she did not have a preference for IA, did not need to be persuaded to have CTG, and that the midwifery staff simply considered that the birth plan had previously been agreed to by the consultant midwife and that they should support that plan, whatever they thought about it. Accordingly, they did not warn the Claimant’s mother of the risks or potential consequences of IA nor did they recommend she should have CFM in order to reduce the risk to the baby. He found that there was no counselling or re-assessment of the risks once the Claimant’s mother came to the hospital and that was a breach of duty given the agreement of the midwifery experts that a birth plan required reconsideration during the course of the pregnancy and in particular when the mother goes into labour. Further, that counselling and re-assessment of risks was necessary because there was a very real possibility that the Claimant’s mother would change her mind if provided with a sober re-assessment of the risks and benefits of IA. The Claimant’s parents should have been told that there was no one available with experience of caring for a VBAC mother without CFM.
Lastly, Simon Maskrey QC found that there had been a breach to perform IA sufficiently frequently.
Judgment – causation
Simon Maskrey QC held that despite the risk of subsequent events colouring the Claimant’s father’s recollection, he had given compelling evidence that, if there had been a recitation on the night in question of the risks of IA, they would have desired to accept whatever additional monitoring could be provided. Further, the Claimant’s mother, when faced with the reality of labouring in a busy maternity unit, would have re-evaluated her decision with the input of her husband. With that input she would have opted for CFM if it had been emphasised that that was the advice of the midwives on the night.
With regards to causation and the issue of the uterine rupture, Simon Maskrey QC rejected the Claimant’s argument that where there was no CFM (as there ought to have been) the evidence should be considered ‘benevolently’. However, he found that there had been a delay in commencing resuscitation, and consequently the Claimant would have only suffered mild rather than severe brain damage.
Comment
Any decision involving consent and causation in clinical negligence is bound to be highly fact sensitive. However, what is interesting about this judgment is the degree to which the judge’s assessment of what information should have been conveyed to the Claimant’s mother, and what degree of understanding she was required subsequently to have of the relevant risks, was formed on a relatively broad brush basis, rather than by particular reference to the magnitude of risk or the specific details of the risks involved.
Further, as an aside, the judge made extensive use of answers to his own questions to both witnesses and experts when reaching his conclusions in respect of both breach and causation – having a very experienced clinical negligence QC as the judge potentially made a significant difference to the outcome.
