Tragic Death of Newborn from Infection was not due to Negligence
Callaghan v South Tees Hospitals NHS Foundation Trust [2023] EWHC 1199 (KB)
Background
This case arose from the death of the Claimant’s daughter, Imogen, who died from Group B Streptococcus (“GBS”) bacterial meningitis and septicaemia when she was 7 days old.
Imogen was born on 26 May 2014 and discharged home on 28 May. It was alleged that it was a breach of duty to discharge since, at that time, there was not an established pattern of feeding. It was also alleged that the Claimant was not properly advised with regards to a feeding plan and the specific signs of illness of which she should have been observant. It was claimed that, had Imogen been kept in hospital for one more day, observations would have revealed signs of sepsis which would have been successfully treated.
Breach of duty was denied by the Defendant Trust. It contended that, on the evidence available to the midwife, discharge had been appropriate. It was contended that Imogen had no risk factors for GBS or hypoglycaemia and that the standard of care had been in accordance with a logical and responsible body of midwifery opinion.
The key factual issues considered by the Court related to Imogen’s feeding pattern and her condition before discharge. The allegations of breach focused on the midwifery management of Imogen when she was in hospital, the decision to send her home and the advice that was given to the Claimant on discharge.
Quantum was agreed at £18,000 subject to liability.
Decision
On the key issues of fact, the evidence of the Defendant’s witnesses was preferred to that of the Claimant.
Ellenbogen J rejected criticisms made of the Defendant’s midwifery expert who was found to have given her evidence in a ‘fair, considered and balanced manner’. In contrast, she concluded that the Claimant’s expert’s opinions, ‘needed to be treated with some care and did not always reflect the nature of the extent of the duty incumbent upon the Defendant’s clinicians, as a matter of law’.
The expert midwives agreed that whether the Defendant’s clinicians ought to have concluded any issue with Imogen’s feeding reached the level of a feeding difficulty was a matter of clinical judgement. Furthermore, the infectious diseases experts and the Claimant’s midwifery expert agreed that a feeding difficulty would not raise concerns of, and had a poor predictive value for, sepsis, and that the index of suspicion for early onset neonatal GBS infection dropped after day one.
Having considered the factual evidence concerning Imogen’s condition whilst she was in hospital, in particular the extent to which she had fed, and despite some criticism of the note keeping, it was concluded that there was no breach of duty in respect of the midwifery management in hospital or the decision to discharge. Ellenbogen J also decided that the advice given upon discharge was largely appropriate. The only breach of duty that was found to be proved was in relation to a failure to specifically advise that Imogen should have fed on demand around every three to four hours.
In respect of causation, it was held that it was likely that Imogen’s condition had deteriorated at around midnight on 29th May and again at around 5.21 that morning, times when the Claimant had called the hospital. The paediatric infectious diseases experts had concluded that overt meningitis developed at around this latter time. Ellenbogen J said that “Beyond those findings, I conclude that it is not possible reliably to determine, on the balance of probabilities, when Imogen had exhibited signs and symptoms of sepsis and the Claimant has not discharged her burden to establish that matter.” She clarified that the one breach of duty that had been found was not causative.
Comment
This is a tragic case involving the death of a very young baby who was born healthy. Whilst the factual evidence of the Claimant was rejected where inconsistent with the evidence provided by the Defendant, Ellenbogen J was clear that, ‘that is not to suggest that I have concluded that she was other than doing her best to give an honest account of events, as she recalled and perceived them to be’.
The decision serves as a reminder of the importance of being confident that an expert witness is conscious of the legal test that they are required to consider when expressing their opinion. The Claimant’s expert was noted to be, ‘inclined to substitute for the Bolam/Bolitho test her own view as to best practice, or the way in which she would have acted in similar circumstances’. Whilst the personal opinions and experiences of an expert are not irrelevant – not least in helping to establish their expertise in their particular field – straying from the established test can make all the difference in a case where there is little else to enable a judge to decide which opinion should be preferred.
