Birth injuries and expert evidence
This is the third birth damage case in just over 3 years in which Mr Justice Ritchie has been the trial Judge. The other two being CNZ (Suing By Her Father and Litigation Friend MNZ) v Royal Bath Hospitals NHS Foundation Trust, The Secretary of State for Health and Social Care [2023] EWHC 19 (KB) and CDE (Suing by her mother and litigation friend MNZ) v Surrey and Sussex Healthcare NHS Trust [2022] EWHC 2590 (KB). Ritchie J has therefore heard and/or assessed evidence from many of the most well known and well respected experts in this area including the following:
Obstetrics:
Mr Derek Tuffnell [in CDE and CNZ]
Miss Leonce [in CDE]
Mr Paddy Forbes [in CNZ]
Mr Gerald Mason [in OAJ]
Professor Neil Thornton [in OAJ]
Midwifery:
Miss Angela Helleur [in CDE]
Miss Janet Edwards [in CDE]
Ms Dawn Johnson [read in CNZ]
Ms Kaye Wilson [ read in CNZ]
Ms Jean McConvelle [in OAJ]
Ms Susan Brydon [in OAJ]
Neonatology:
Professor Mitchell [in CDE]
Doctor Jane Hawdon [in CDE]
Doctor Peter Dear [in CNZ]
Doctor Fox [in CNZ]
Doctor Gary Hartnoll [ in OAJ]
Doctor Janet Renniw [in OAJ]
Neuroradiology:
Doctor Marcus Likeman [read in CDE, CNZ and OAJ]
Doctor Craven [read in CNZ]
Doctor Neil Stoodley [read in OAJ]
Paediatric Neurology:
Doctor Lewis Rosenbloom [in CNZ]
Doctor Richard Newton [in CNZ]
Doctor Shakti Agrawal [in OAJ]
Doctor Neil Thomas [in OAJ]
Review of these cases gives good insight as to how one Judge has assessed the evidence of these well-known experts.
The case of OAJ concerned a Claimant who was aged 14 years at trial and who suffered severe brain damage around the time of his birth. It was not in dispute that the Claimant had suffered an acute profound hypoxic ischaemic insult and possibly also chronic partial hypoxic ischaemia. The Claimant’s mother was admitted to hospital by ambulance at 0010 on 1 September 2011 and the Claimant was born by caesarean section at 1019 on 2 September 2011. Apgar scores were 5 @ 1 minute; 7 @ 5 minutes and 6 @ 10 minutes. The arterial cord pH was 7.01 and the venous cord pH 7.08. Before admission to hospital the Claimant’s mother had had a spontaneous rupture of membranes and described some heavy blood loss when phoning the midwifery unit. On admission minimal blood loss was noted on the Claimant’s mother’s pads.
The issues in the case related to the standard of midwifery care after admission to hospital and the level of obstetric intervention on the following morning. The main issue was to determine when the insult causing brain damage had occurred as unusually the Claimant’s condition at birth was not easily reconcilable with a severe insult just before delivery.
The Judge found there was no breach of duty in the care by the midwives in not asking for obstetric assessment after the mother’s admission to hospital. He stated:
“I was greatly assisted by both midwifery experts who were of high professionalism and focus. Their opinions were also logical, from their points of view. However, Ms McConville mistakenly wrote that there was continuing fresh bloodstained liquor on admission. I find that there was no “fresh” BSL, only BSL. In her report, she considered that the maternal report of heavy bleeding at home was enough to mandate medical referral despite: (1) what M had said to the paramedics (”some bright red watery blood”); and (2) all the examinations and assessments of M and C being reassuringly normal; and (3) the difficulty for any mother in estimating blood volume in liquor in a toilet after SROM. I consider that Ms McConville stretched the meaning of the extracts from the text books which she relied upon a little further than they actually went. Not one of the texts stated that medical referral was mandated where SROM and BSL have arisen, against a bac kground in which all of the examinations, signs and the CTG are normal, just because a mother had reported a heavy bleed at home. Ms Brydon advised that the reason for doing all the examinations and assessments was to determine whether M or C was at risk of having suffered an APH at home and the results did not support APH. Instead, the results supported SROM (which was confirmed on speculum examination) and BSL, which was common with SROM.”
And
“Overall, once Ms McConville had shifted her opinion in cross examination, I consider that the difference in opinions between the experts represented a reasonable range of opinions for midwives in practice in 2011. Thus, where Ms Brydon advises that midwife Coliandris was not negligent for failing to refer M on to a registrar after admission, I consider that a reasonable body of midwives would have acted as midwife Coliandris did, so she was not in breach. I should make clear that in my judgment, Ms Brydon’s opinion at least represents that of a small but reasonable body of the profession and more probably represents the standard of care of the majority in 2011, because it was more logical and better matched the advice in Myles Midwives 15th ed (2009) at pages 336-337. Having carried out every proper assessment and examination, having noted that all the signs came back normal for both M and C, in the context of mere BSL on the maternal pad and taking into account the great difficulty for mothers accurately to assess the amount of blood loss in a toilet after SROM, furthermore taking into account the paramedics’ note of what M told them (some bright red watery blood), referral to a registrar at 00.50 am was not mandated and might, quite rightly, have led to a raised obstetric registrar’s eyebrows.”
And
“As for the actions of the morning midwives, midwife Rogers was involved in the call for obstetric review via her coordinator, Ms Hall, very soon after 08.35 am and that is what the midwifery experts both agree she should have done, so I consider that she was not in breach of her duty of care.”
The Judge criticised both expert obstetricians for commenting on the standard of midwifery care.
“Mr Mason went outside his field of expertise when advising the Court that midwife Coliandris breached her duty of care because she should have referred M to obstetricians and should have identified the source of the bleeding, soon after admission. That was for the midwifery experts. In any event, Mr Mason altered his opinion on referral to an obstetrician from a blanket mandation, due to M’s self-report over the telephone, to a requirement only if there was evidence of significant blood loss as opposed to SROM with BSL. Professor Thornton made a serious error in his report and in the joint report when he overlooked the fresh blood seen by the midwife at 08.35 am and the report by M of fresh blood in the toilet in the same note. He also strayed outside his field to comment on midwifery practice. In relation to the allegations of breach relating to midwifery practice, I prefer to rely on the midwifery evidence and I have done so above.”
The Judge found there was however a breach of duty by the obstetrician at 0848. The Judge was critical of the Defendant’s obstetric expert and his analysis of this and stated:
“Both experts criticised Mr Siddig’s diagnosis made at 08.48 am, of a local source for the bleeding. The most unimpressive part of Professor Thornton’s joint report was his advice on the events at 08.48 am. Despite Mr Mason pointing out to him that there had been “fresh bleeding” he ignored that and wrote: “ There was no indication to undertake a caesarean at 08.48 …. There were no symptoms and signs of evolving abruption… it was only at 09.05 hours when the PG was inserted that there was vaginal bleeding” . I do not know whether these experts actually had a discussion or just exchanged draft written comments, but this disconnect shows how one expert can mislead himself by overlooking a key entry in the clinical notes, despite it being referred to by the other expert. Professor Thornton accepted that, by 09.25 am, the decision to do a CS was necessary due to the visualised blood. As for the need for continuous CTG after that decision, Mr Mason advised it was necessary but Professor Thornton completely avoided answering the question of whether it should have been reconnected.”
and
“When challenged on his opinion about 08.48 am, he accepted that he had overlooked the entry at 08.35 am stating fresh blood on M’s pad and flushed away in the toilet. He accepted that her account was consistent with a significant fresh bleed in hospital. I was unimpressed by his answers about the decisions made by Mr Siddig at 08.48 am. He criticised Mr Siddig for diagnosing a local cause for bleeding without examination, but would not accept that the 08.35 am note of fresh blood on the pad and down the toilet was “significant” enough to mandate immediate examination and a CS. He accepted that the daytime CTG was very unusual due to the spikey baseline variability and the baseline rising steadily from 105 to 160 bpm and the decelerations.”
The Judge summarised his findings in respect of breach of duty by the obstetrician as follows:
“As for the obstetric management at 08.48 am, I accept the evidence of both expert obstetricians that Mr Siddig was in breach of his duty of care when diagnosing a local cause for the bleeding. He did not even try to visualise the suspect ectropian. I also find that he negligently overlooked the note, made a mere 13 minutes before his ward round, setting out that fresh blood was seen on M’s pad and M’s report that she saw fresh blood in the toilet. I find that Mr Siddig should have examined M at that time and would probably have seen fresh blood in her vagina. That, combined with the odd trace, starting with a low baseline of 105 bpm (normal 110-160 bpm), the spikey variability and the lack of any accelerations, should have led to a decision for a CS. I accept Mr Mason’s opinion that, at that time, the working diagnosis should have been a suspected PA. As a result, I find that a CS was mandated. Professor Thornton never really addressed the whole of the facts at this timepoint and carelessly ignored the fresh bleed report at 08.35 am so I do not find his opinion helpful on this timepoint.”
However whilst the Claimant was able to establish breach of duty at 0848 the claim failed as the Claimant could not establish the insult would have been avoided by earlier delivery after 0848. Dr Agrawal had postulated that the insult occurred between 0944 and 1009 with 10 minutes recovery before delivery at 1019 and that this would explain why the Claimant was not in a worse condition at delivery. However the Judge found:
“Attractively argued though Doctor Agrawal’s theory was, there were various fault lines within it. Firstly, the sheep experiments did not support the level of recovery in C’s levels of acidosis, from a very severe brain injury, to his condition at birth, in a mere 3-10 minutes (or indeed the 14 minutes maximum which I calculated above). I do place a little weight on those because they are the only review papers available and they were not criticised for their methodology, only for having small samples. Secondly, the other experts did not accept that recovery in that very short space of time was likely from their clinical experience. Thirdly, the 08.30 am CTG started with a baseline at 105 bpm, which is below normal, leading slowly up to 140-160 bpm. I accept Mr Mason’s evidence that this might indicate a post injury recovery process. Fourthly, the Agrawal hypothesis rests on cord compression and so on M staying still for 25 minutes causing that compression. But, on his theory, this stillness was happening at a time whilst she was being prepared for theatre, then transported from her room to theatre, then being consented and prepared for the spinal anaesthetic. The entry in midwife Rogers’ notes on the start of the operation was: “knife to skin 10-”, in which case she must have had the spinal before then and been bent over for the needle insertion. That would have involved quite substantial body movement, potentially interrupting any cord compression. Whereas the nighttime compression would probably have occurred when M was asleep. Fifthly, I consider that Janet Rennie’s approach was thoughtful and analytical. I prefer her evidence to that of Doctor Agrawal on the timing of the hypoxic insult. I also prefer the evidence of Mr Mason and Doctor Thomas on the timing of the insult.”
and
“For the above reasons, I find that C suffered an APHI, lasting 20-25 minutes, before 08.30 am and probably at the later end of the period 05.15 – 07.50 am. It probably ended at or just before 07.50 am, because midwife Rogers went to see M then, took her vital signs and BSL was seen dribbling, so M may well have moved her body during that time. There might have been some preceding CPHI, but on balance I prefer the expert evidence stating that there was a unitary cause: APHI. A lot of brain injury was caused during the APHI insult and I consider it likely that C’s arterial cord gas pH probably reduced to 6.6-6.8 as Doctor Thomas postulated. After the APHI there would then have been a period of re-oxygenation and resuscitation for C in utero until birth, lasting perhaps 2-3 hours. Then, C was born with improved but still acidotic cord pH readings. Roughly 4-6 hours after the end of the APHI insult (perhaps very roughly between 11.50 am and 13.50 pm) the usual secondary period of cellular damage probably arose.
None of the experts, other than Doctor Agrawal, whose evidence on timing I have rejected, advised that there was any or any continuing hypoxia after 08.30 am if the main injury had occurred earlier. Instead, they advised the C was being resuscitated in utero. I find that there was no continuing hypoxia after 08.30 am.”
And
“I find that C’s severe brain injury was caused silently and tragically in the night, between 05.15 and 07.50 am, probably ending at or close to 07.50 am. It was caused by APHI. It was caused by a reversible mechanism. This was probably due to cord compression. This was not anyone’s fault. It was not the midwives’ fault and it was not M’s fault. No one was to blame. By the start of the daytime CTG, at 08.30 am, the damage was either done or the course was set for the full damage to emerge over time in the usual 3 phase manner. Therefore, the breaches at 08.48 am and thereafter and those after 09.40 am made no difference to the outcome and made no contribution to it. The primary damage had been caused, although the normal further sequelae of APHI arose thereafter and further consequential damage would arise hours later.”
This was an unusual and difficult case involving birth damage over 14 years ago. The main problem for the Claimant was to reconcile the Apgar scores and relatively mild acidosis at birth and lack of bradycardia just before delivery with a very severe acute profound hypoxic ischaemic injury. By contrast in the case of LMN v Swansea Bay University Health Board [2025] EWHC 3402, where it was accepted the acute event occurred during a 17 minute delivery of an impacted baby the position was:
“The claimant was delivered by Mr Mukherjee at 20.34. The claimant was noted to be floppy, his Apgar scores (a measure of the need for resuscitation) were 4 (at 1 minute of age), 4 (at 5 minutes) and 5 (at 10 minutes). He was ventilated and then intubated. His cord gases were recorded as pH 6.86 arterial and pH 7.01 venous. He took his first spontaneous breath at 6 minutes of age.
The total period of acute near total asphyxial insult was about 13 minutes and the period of damaging asphyxia was of approximately two to three minutes in duration. The notes of the anaesthetist recorded that it had been a difficult procedure but that the baby had recovered less than one minute after delivery. It is said that the claimant would not have suffered any brain damage or neurological injury had he been delivered by 20:31 or 20:32.”
Ultimately in the OAJ case the Judge found the insult must have occurred a few hours earlier and although the mother was in hospital at the time the Claimant could not establish that this injury could or should have been avoided. The breaches of duty that could be established all post dated the timing of the injury.
Andrew Kennedy KC acted for the Defendant in OAJ. He was not involved in the writing of this article.
