Fabrication of Medical Records
Astley v Lancashire Teaching Hospitals NHS Foundation Trust [2023] EWHC 1921 (KB)
Mr Justice Martin Spencer found for the Claimant in this brain injury case, notable for his conclusion that the medical records were not only inaccurate but fabricated by midwifery staff. The judge also had strong criticisms to make about the expert midwifery evidence relied upon by the Defendant.
The Claimant was born in 2012. He suffered an acute profound hypoxic-ischaemic (“APH”) brain injury at birth, caused by umbilical cord compression. By the time of the liability trial, the relevant experts had agreed that the APH had started at 8 minutes before birth. The Claimant was born in an asphyxiated condition, and it took 7 minutes for his heart rate to return to normal range. A normal fetus can withstand 10 minutes of APH before the brain suffers damage. Therefore, the insult became damaging from around 2 minutes after birth. Had the Claimant been born three minutes or more earlier, he would have been resuscitated in time to avoid all permanent brain damage.
During labour the heart rate was monitored with intermittent auscultation rather than a continuous CTG being started. Midwifery staff had documented events and the records suggested the labour had progressed completely uneventfully until birth with a normal fetal heartbeat. In fact, by the time of the trial, the expert neonatologists had agreed that the fetal heart rate would have been severely bradycardic during the APH and the fetal heart recordings were inconsistent with that.
The judge was critical of the Defendant’s expert in midwifery for addressing the allegations as they appeared in the Letter of Claim, rather than the refined allegations that appeared in the Particulars of Claim. Moreover, she had failed to address the inconsistency between the normal fetal heart rate recordings just before birth and the timing of the APH. The judge stated that he found it ‘frankly astonishing’ thatin view of the agreed neonatal evidence the expert had ‘glibly stated that she stood by her report and nothing in the evidence had changed that’. The expert stated in cross-examination that, until then, she had thought this central plank of the case had been referred to in her report. The judge thought this part of her evidence ‘embarrassing’. She indicated that she agreed with the Defendant’s expert obstetrician that, whilst uncommon, it was possible that intermittent auscultation by chance took place at points when the fetal heart rate was normal and were recorded as such. However, in evidence the obstetrician conceded the records were likely to be incorrect.
The judge rejected the treating midwife’s evidence that she had recorded what she had heard. He concluded that there had been no monitoring of the fetal heart once the midwife considered delivery was imminent. Records to the contrary had been fabricated. He noted in particular that the recorded fetal heart rate extended past the point where the head had been delivered, which he thought highly unlikely to have happened. He also rejected the evidence of a senior midwife present, suggesting that the absence of any noted concerns by her about the fetal heart, which would have been audible in the room, meant it had not been concerning.
The judge accepted the evidence of the Claimant’s obstetric expert that, for a period prior to the API, fetal heart abnormalities in the form of complex variable decelerations would have been present, and ought to have been identified by the midwife. This should have led to CTG monitoring, an emergency call for obstetric review and delivery in time to avoid the Claimant’s brain damage. An allegation that a CTG was required earlier in light of an alleged blood-stained liquor was rejected.
Comment
Given the judge’s trenchant observations, it is not easy to discern why it was thought that the inconsistency between the records and timing of the APH might be overcome in this case. It appears to have been on the basis of the Defendant’s obstetric expert’s initial view (which he explained in evidence had been ‘giving the midwives the benefit of the doubt’) that intermittent auscultation could have meant that the fetal heart rate changes were missed, combined with the evidence of two midwives about what they heard. The finding of fabrication is unusual, and some judges might have shied away from it. It is not an allegation that should be advanced without a great deal of thought about its evidential basis. But it remains one potential explanation where there are inconsistencies between what was recorded and what would be expected, as found by the judge in this case, and robust evidence will be required in response. The judgment is also a reminder that experts should endeavour to address any refined allegations or later developments in the evidence from joint expert meetings in writing, by way of amended or supplementary reports, in order to ensure that their views on the central issues have been pinned down before trial.
