Loraine (a child by his mother and Litigation Friend) v Wirral University Teaching Hospital NHS Foundation Trust [2008] EWHC 1565QB (Admin)

The Claimant (SL) is 8 years old and suffers from cerebral palsy manifested in spastic quadriplegia, general developmental delay, visual impairment and gastro-oesophageal reflux, this being the consequence of foetal asphyxia that he sustained when his mother (PL) suffered a profound placental abruption shortly before his birth.  In this action he claims damages from the Defendant (W Trust) responsible for the hospital in which he was born.  L was born by emergency caesarean section.  After the operation PL was found to have a cervical fibroid measuring 6cm by 6cm and a blood clot behind the placenta.  She had given birth on 4 previous occasions at this hospital; a scan during her third pregnancy revealed a fibroid on the posterior uterine wall, further scans confirmed the presence of the fibroid but detected no change in size or location.  It was later confirmed that the fibroid was below the foetal head and PL delivered a healthy male child without any complications.  During PL’s fourth pregnancy no reference to a fibroid was made.  The presentation of the foetus was a double footling breech.  The responsible consultant attempted to turn the infant to the normal presentation for delivery but could only achieve a transverse lie but within days the infant had turned and PL proceeded to a successful delivery. 

PL’s fifth pregnancy culminating in the birth of SL is the subject of this litigation.  When PL was booked in for this birth, the only complication listed on her computerised obstetric history was a urinary tract infection. No mention was made of the fibroid in the posterior wall detected and monitored in the third pregnancy.  At PL’s 20-week scan all appeared normal and there was no indication that the sonographer was aware of the existence or risk of a fibroid nor was there mention of a footling breech presentation in her last pregnancy.  In a further check-up it was noted that the infant was oblique, signifying a position somewhere between vertical and horizontal.  In further check-up she was advised about the possibility of a spontaneous rupture of the membrane and in such an event she should come to the hospital immediately.  The infant was recorded as oblique on her next visit and an appointment was made to see a consultant M.  She was not in fact seen by M but by a SHO who advise her to attend the hospital weekly until the lie stabilised.

PL made detailed notes whilst in the special care unit of the hospital and the events were fresh in her mind though the court accepted that some of her notes were based on only a partial understanding of the medical advice she was given.   She noted that she was to return to the labour ward if her waters broke.  The main concerns at this time according to M were the spontaneous rupture of her membranes and the risk of cord prolapse but he did not see a need for her to be admitted into hospital. 

The key claims by SL was that W Trust ought to have diagnosed the fibroid at some stage prior her emergency admission prior to his birth and having done so ought to have admitted his mother to hospital.  Profound placental abruption is an uncommon complication occurring in a relatively small number of pregnancies and was not foreseeable.  On the other hand the risk of cord prolapse was both foreseeable and foreseen.  Foetal asphyxia the cause of the claimant’s condition was either from profound placental abruption or from cord prolapse.  The Court was required to determine whether W Trust was liable to compensate the Claimant for an unforeseeable manifestation of a foreseeable danger arising from a breach of duty of care owed to him.  The Court preferred the expert witness for the Claimant (C) for his familiarity with all of the clinical notes, his vast experience in obstetrics, gynaecology and risk management.  No evidence was supplied by the hospital administrators regarding the availability of resources or from sonographers regarding the availability of ultrasound scans but evidence was supplied by PL’s medical team  The Court enquired into the reasons why previous obstetrics records were not made available for a patients first visit but was told by W Trust that this would only happen if a patient raised issues from a previous pregnancy and the records would then be retrieved if relevant for the next appointment.  According to the Defendant this was standard practice at all hospitals in England and “indeed across the world”.  The Court was highly critical of such a flawed system which relied on the patient to raise matter particularly as she might be unaware of the significance of factors detected by the hospital or may have forgotten those factors or remembered them incorrectly.  In the case of PL the relevant records would not only have shown a fibroid but also a footling breach in the fourth pregnancy which would have alerted a competent gynaecologist to the possibility that the fibroid might present an obstacle to normal delivery.  If staff carrying out the ultrasound examinations in the fifth pregnancy had been told that there had been a fibroid in a previous pregnancy there was a good chance they would have located it. This could not fail to have affected the management by a competent medical team of her pregnancy.  Even in the absence of complicating factors such a fibroids and footling presentation the leading text books in circulation at the time indicated that hospital admission might be an appropriate course for a woman with transverse lie at this stage of pregnancy.  If PL’s fibroid had been known and if her history of footling presentation been taken into account a consultant applying an appropriate degree of prudence, would have admitted her to hospital.  W Trust argued that PL had favourable outcomes on her third and fourth pregnancies notwithstanding the fibroid.  The court found this an empty argument in that no inference could be drawn from previous pregnancies without ascertaining the size of the fibroid in the current pregnancy.  C commented that “if the doctors had understood the reasons for the unstable lie they would not have adopted such a laissez faire attitude …”  M should have caused enquiries to be made to determine whether there was still a fibroid in the uterine wall and whether its size was such as to constitute a potential obstruction.  The Court derived particular assistance from Robertson v Nottingham Health Authority which found a hospital authority in breach of its duty because there was no effective communication of information from nurses and midwives and doctors responsible for making decisions relating to the management of the Claimant’s birth.  A health authority owed its patient a duty to provide her with a reasonable regime of care at hospital.  The practice at the hospital in which the Claimant was born relied on the patient to identify potential complications to the gynaecologist and to retrieve files only if it appeared from the patient’s report that these might be material. This was a flawed system and exposed PL to an avoidable risk. 

The Court examined the issue of causation and the likely scenario had PL been admitted to hospital.  W Trust stated that it would have made no difference to the outcome had she been admitted sooner because of the time it would have taken and the procedures which would have taken place prior to the claimants birth.  The Court found that if the hospital had conducted itself in the way described by the Defendant it would have been in dereliction of its duty.  C described the how the scenario should have played out if PL had been in hospital which would have resulted in an immediate caesarean section which would have saved valuable time.  The Defendants accepted that had SL been born 20 minutes earlier he would have been uninjured. The Court held that the type of damage suffered by the Claimant was reasonably foreseeable i.e. cerebral palsy as a result of foetal asphyxia a condition which can be caused either by placental abruption or cord prolapse.  W Trust had breached its duty to SL even though the route by which the harm was caused was not foreseen at the time of the breach. 

Judgment for the Claimant on liability

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