Clinical Negligence: Decision expected in birth damage claim

MEDICAL NEGLIGENCE - DECISION EXPECTED IN BIRTH DAMAGE CLAIM LATER THIS YEAR 

Our clinical negligence team currently awaits a decision from the court in relation to allegations of negligence made against Raigmore Hospital, Inverness. Evidence was presented to the court over the course of twenty four days at the end of 2012 and arguments were then presented on behalf of both the family and Health Board in February of this year. It is hoped that a decision will be available later this year.

A claim was made for damages in respect of the pain and suffering of the child who was damaged at birth and the various therapies likely to be required in the future. The child has been diagnosed with cerebral palsy and will require life-long treatment, a 24 hour care package, suitable accommodation and a number of therapies to provide the best quality of life possible. She will not be able to live independently, work or manage her own affairs.

It was argued on behalf of the family that their daughter should have been delivered earlier than she was and that, but for the failure to do so, her outcome was likely to have been different/better (ie the "damage" avoided).  

The mother was an insulin-dependent diabetic with a history of raised blood pressure. She was admitted to Raigmore Hospital in Inverness and her admission CTG (used to record fetal heartbeat and contractions during labour) was normal. The hospital had a protocol for mothers with insulin-dependent diabetes who were regarded as having high-risk pregnancies. A drug was given to speed up the mother's contractions when they slowed down.

As this was a high-risk pregnancy, both midwives and obstetricians were involved throughout the labour and delivery. It was argued by those acting for the family that the CTG started to show abnormalities indicating possible fetal distress at an early stage. Evidence was given to the court from a consultant in obstetrics and professor in obstetrics in addition to an independent expert midwife that the CTG was of such concern that delivery by caesarean section should have taken place at an earlier time. They were of the view that the CTG abnormalities were indicative of hypoxia (a lack of oxygen getting to the baby) and so action was needed to deliver the baby as quickly as possible.

The Health Board presented evidence from an independent midwife and consultant obstetrician in which it was argued that, although the CTG was "suspicious", it was acceptable to carry on with the labour and monitor closely. The experts for the Health Board argued that the labour was progressing and provided reasons to explain why some of the abnormalities could be seen (such as the recent administration of certain drugs which can lead to changes in the fetal heart rate). It was also argued that some of the abnormalities were not of any clinical significance and are typically seen in advancing labour due to compression on the head as the baby descends. The Health Board argued that the trace was generally reassuring and there was no requirement to take action.

The mother was reassessed by a member of the medical staff and due to a lack of progress (rather than any concern as to fetal wellbeing) the doctor/registrar called the consultant obstetrician and his instruction was to perform a caesarean section. There was much debate as to whether the correct information was provided to the consultant and whether the caesarean section could and should have been carried out more urgently - the family arguing that the registrar should have mentioned the CTG abnormalities and that the doctor had misinterpreted the trace. The "decision to incision" time for the caesarean section was more than an hour and it was argued on behalf of the family that had the staff appreciated the abnormalities (indicating possible fetal distress) delivery should have been carried out in or around thirty minutes from the time of the decision. The Health Board argued that, as there was no concern in relation to fetal distress, a "crash" c-section was not required and that the time taken to deliver was acceptable. They also argued against any such misinterpretation of the trace.  

The family's position was that delivery even just a few minutes earlier is likely to have avoided the damage from which their daughter now suffers.  The defender's expert did not accept this and thought there were explanations other than any alleged delay in delivering the child which could account for the damage.

The likely "cause" of damage is an important factor in any clinical negligence case as not only do you have to prove negligence on the part of the treating doctors but also that "but for" the negligence the outcome is likely to have been different.   

The case was restricted to  arguments relating to liability.  If the family is successful in proving liability, a hearing will be fixed in relation to how much compensation the Health Board must pay. The decision is eagerly awaited but, due to the complexity of the medical evidence, it is likely to be a number of months before the decision is available.

Our specialised clinical negligence team acts for a number of families in a similar situation, i.e., where negligence is alleged against the midwives/doctors for failing to deliver a baby earlier and where the child has been diagnosed with cerebral palsy or a similar life-changing disability.  The care requirements of the children in such cases mean that the value of such claims is often many millions of pounds. Awaiting the outcome of such a case is, therefore, an incredibly anxious time for their families. 

- BY DARREN DEERY