Clements v Imperial College Healthcare NHS Trust, Court of Appeal - Queen's Bench Division, August 03, 2018, [2018] EWHC 2064 (QB)

Resolution Date:August 03, 2018
Issuing Organization:Queen's Bench Division
Actores:Clements v Imperial College Healthcare NHS Trust
 
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Neutral Citation Number: [2018] EWHC 2064 (QB)

Case No: HQ16CO2498

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/08/2018

Before:

MRS JUSTICE MAY DBE

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Between:

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Angus Moon QC (instructed by Leigh Day Solicitors) for the Claimant

John Whitting QC (instructed by Capsticks Solicitors) for the Defendant

Hearing dates: 25-28 June 2018

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Mrs Justice May:

Introduction

  1. On 23 July 2012 the Claimant (``Cerys'') was born at Queen Charlotte's Birth Centre, in West London, a unit operated and managed by the Defendant (``the Trust''). Mother and baby were attended throughout by a qualified and experienced midwife, Clare Nicholls (``MW Nicholls''). All went well, the baby appeared healthy and normal. Yet just under one hour after her birth, Cerys stopped breathing, as she and her parents were enjoying time alone after the birth. She was their first child.

  2. When they noticed that something seemed wrong Cerys' parents called in the midwife, who removed the baby straightaway to be resuscitated. Staff managed to revive Cerys, but she had by then sustained a profound asphyxial insult. Despite immediate treatment in the paediatric ICU the neurological damage resulting from that event has left Cerys with very serious disabilities. She cannot walk, talk or eat normally and will require 24-hr care for the rest of her life. The shock and grief which her parents must have experienced can only be imagined.

  3. The Trust conducted an internal investigation, in the course of which Cerys' parents raised certain concerns about the care they had been given, seeking to understand what might have caused Cerys to collapse in the way she did. In the event the Trust's internal report, dated 2 October 2012, identified no care issues with the midwifery management during labour or following delivery. It found no contributory factors or root causes of Cerys' collapse, nor any learning points to be derived from what took place.

  4. Cerys' parents thereafter instructed solicitors and a Letter of Claim was sent to the Trust dated 7 September 2015. A Claim Form followed on 14 July 2016, with Particulars of Claim dated 27 July 2016. The Trust served its Defence on 3 January 2017. By his Order dated 10 April 2017, Master Roberts directed a split trial, with liability to be decided as a preliminary issue.

  5. The hearing before me was to decide liability, in accordance with those directions. Cerys was represented at trial by Mr Angus Moon QC, the Trust by Mr John Whitting QC. I am grateful to them both for their careful, clear and helpful submissions.

    Chronology of events

  6. The timing of material events at and after the birth on 23 July 2012 is not in issue:

    - Cerys was born at 1329. It was a water-birth. She required some minor resuscitation, after which her colour, tone and APGAR scores were normal and healthy. Her father held her whilst the placenta was delivered.

    - At around 1402 Cerys was returned to her mother wrapped in a towel, for skin to skin contact. Breastfeeding was initiated, with advice and assistance in positioning given by the midwife. The uncontested evidence from Cerys' mother, Ms Geis-Clements, is that Cerys started to suck strongly, then came off and was re-latched where she suckled again, unlatching and re-latching once more until about 1412 when she fell asleep at the breast.

    - At 1408 MW Nicholls left the room, telling the parents that she was just outside and that they should call her if they had any concerns. There was a factual issue on the pleadings as to whether MW Nicholls told the parents that she would be back in 10 minutes; as I set out below, this issue receded in significance at trial.

    - Cerys' father took photographs during labour and throughout the period after her birth, including in particular a close-up shot at 1409 showing Cerys being held in her mother's arm, at her mother's left breast, with her face tucked in.

    - The paediatric neurologists' agreed evidence is that the acute hypoxic insult (AHI) to Cerys began at 1426. The neonatology evidence was that Cerys must have stopped breathing about a minute before, at 1425.

    - A photograph taken by Mr Clements at 1434 shows Cerys still held in the crook of her mother's left arm as before, but with a changed colour to her skin.

    - Initially her parents noticed nothing abnormal, but after Cerys' mother moved her from the crook of her left arm up to her chest at around 1439, both she and Cerys' father became concerned. At 14.45 they called in MW Nicholls who immediately removed Cerys and began resuscitation. The agreed neurology evidence is that the AHI ceased at 1448.

  7. Although Cerys was revived and taken immediately to Intensive Care, the length of time for which her brain had been deprived of oxygen resulted in significant irrecoverable neurological damage.

    Issues for my decision at this trial

  8. Breach and causation are both in issue. The Particulars of Claim set out ten separate allegations of negligence but by the time of closing the ``main causative allegations'', as Mr Moon described them, had resolved to two specific breaches of duty as follows:

    (i) Advising Cerys' mother that if Cerys could not breathe she (Cerys) would wriggle and pull her head back, described by Ms Greenway, the expert midwife instructed on behalf of Cerys, as ``false reassurance''; and

    (ii) Leaving Cerys and her parents unattended and unchecked to attempt breast feeding and skin to skin contact between about 1408 and 1440.

  9. The case for Cerys is that her mouth and nose were obstructed and her breathing compromised by her mother's left breast during skin to skin contact when she was left alone with her parents. There is no criticism of MW Nicholls for leaving the parents alone with their new baby for bonding time, indeed this is mandated practice. However, it is alleged that MW Nicholls, before leaving them, should have advised Cerys' mother to keep her baby's nostrils free at all times, and should not have answered a query by Ms Geis-Clements about Cerys' ability to breathe whilst at the breast by saying that babies will wriggle and pull their head back if they cannot breathe.

  10. It is also said that MW Nicholls should have returned within the hour after birth, or at the latest 5 minutes after that and that had she done so she would immediately have noticed that Cerys had collapsed and resuscitation would have commenced in time to prevent any neurological damage.

  11. I deal with breach and causation in relation to each of these allegations separately below

    First allegation of breach - advising that babies will move to breathe

    Mechanism of collapse

  12. Before deciding what, if any, causative effect the ``false reassurance'' had, there is a prior matter to be determined, namely the mechanism of Cerys' collapse. The assumption that it was caused by suffocation at her mother's breast underpins the allegation of negligent advice. It is to that matter, therefore, that I turn first.

    Medical evidence

  13. Taking it in stages, it is clear that Cerys sustained a period of asphyxia. The unchallenged conclusion of Dr Neil Stoodley, consultant neuroradiologist instructed on behalf of Cerys, was that:

    ``The pattern of structural brain damage evident on the scans is likely to be due to an acute near total hypoxic-ischaemic insult...Such patterns of structural brain damage are often associated with prolonged periods of fetal bradycardia where the fetal heart rate drops below 100bpm and often below 80bpm.''

  14. The Defendant's expert neuroradiologist, Dr Forbes, likewise concluded:

    ``[the] MRI scans show a pattern of brain injury consistent with her having suffered a short period of profound asphyxia.''

  15. The agreed evidence of the consultant paediatric neurologists, Dr Pohl instructed on behalf of Cerys and Dr Rosenbloom by the Trust, is that the AHI would have started at 1426, that brain damage would have been irreversible after 1436, and that the likely end of the AHI, once Cerys had been resuscitated, was at 1448. The neonatologists agreed that if the AHI started at 1426 then Cerys must have stopped breathing at 1425.

  16. The key question at this trial is what caused her to stop breathing. The Claimant's case is that it was the result of her airways being obstructed by her mother's breast tissue.

  17. The expert neonatologists from whom I received evidence at trial, Dr Dear instructed on behalf of Cerys and Dr Rennie for the Trust, were not agreed. Dr Dear's conclusion, set out at p.17 of his report was that:

    ``on a strong balance of probability, this is one of those extremely unfortunate cases of neonatal cardiorespiratory arrest brought about by obstruction of the airways during close bodily contact between mother and baby''

  18. The terms in which Dr Dear couched this conclusion suggested that there are cases of sudden untoward postnatal collapse (SUPC) which have definitively been established as resulting from suffocation by the mother during close bodily contact. But such a definitive causative connection has not been established, as is evident from the literature relied upon by Dr Dear in support of his conclusion: a study undertaken by Poets et al, published in 2011. The authors of this article obtained data from every paediatric department in Germany from which they identified 17 cases of SUPC, corresponding to an incidence of 2.6 cases in every 100,000 births. 9 of the 17 cases occurred in the first 2 hours of birth. The authors discuss in their article what the reasons for such events might have been, including ``potentially asphyxiating position'', ``postnatal fatigue of mother and child'' ``physiologic changes that take place in the first 6 hours after birth''. In some cases, the infant was found lying supine in its own bed away from the...

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