Popple v Birmingham Women’s NHS Foundation Trust 18.10.11

Claimant's cerebral palsy caused by negligent failure to spot the signs of foetal distress during the second stage of labour and expedite delivery. The court considers the level of skill expected to be exercised by ordinary, competent midwives during labour.  

Comment

This case highlights the significance of the importance that the midwives attached to cardiotocogram (CTG) monitoring in the last stages of labour. The midwives readily conceded that they did not look at the CTG trace during the last 30 minutes before delivery because they were expecting a quick delivery. The damage was found to have been caused by a period of acute profound hypoxia which would have been avoided with delivery as little as five minutes earlier.

The court found that continuous fetal monitoring would have allowed a bradycardia to have been noticed and in turn, expedited delivery. The case, therefore, highlights the importance attached to CTG monitoring – regardless of anticipated outcome.

Background

The Claimant sought damages arising from the alleged negligence of the Defendant NHS Trust during his birth and his mother's labour. Damages of £5.5 million were agreed, subject to liability and causation being established and quantum being approved.

The case centred on the expected skills and duties of midwives in the monitoring of maternal and foetal wellbeing and in the making of appropriate responses to the results of the monitoring. The Claimant alleged there had been "culpable delay" in his delivery and that if the Defendant’s midwives had delivered him five to 10 minutes earlier, he would not have suffered damage to his brain and subsequent cerebral palsy.

The Claimant submitted that the midwives failed to recognise problems with his heartbeat, which began 22 minutes before he was actually delivered, and consequently failed to expedite delivery within the following 12 to 17 minutes by organising urgent surgical intervention or performing an episiotomy. These omissions were alleged to have been caused by the midwives failure to monitor the foetal heart and the maternal contractions in the second stage of labour.

The Defendant Trust conceded that the Claimant’s injury was likely to have been caused by circulatory collapse "for a period of 15-20 minutes" but argued that it did not happen during the second stage of labour. Even if it did, neither an instrumental delivery nor an episiotomy could have delivered him early enough to avoid brain damage.

Held

His Honour Judge Oliver-Jones QC held it was clear that the medical cause of the Claimant’s injury was asphyxiation induced by compression or occlusion of the umbilical cord, which had led to circulatory collapse. Expert evidence agreed that the most likely explanation was that acute, profound hypoxic ischaemia had occurred in the 15-20 minutes immediately prior to birth. If that was so, there would have been a period of profound bradycardia before irreversible damage occurred. Any finding that brain damage had been sustained at some time remote from birth depended on the exclusion of that necessary period of bradycardia.

The CTG did not reliably exclude foetal bradycardia. It followed, therefore, that the midwives had been ignorant of the existence of bradycardia because of a complete failure to properly monitor the foetal heart. The fact that the Claimant did not take his first breath until he was 15 minutes old was consistent with his case on causation and there was no alternative explanation for the delay. As it was impossible to identify when the bradycardia had begun, it was also impossible to identify precisely when the damage occurred. However, there was a material contribution to damage which was more than negligible. An episiotomy was capable of being, and should have been, performed by the midwives no later than 14 minutes before the time of actual birth.

Continuous monitoring should have been carried out. Unfortunately, it was clear from the CTG records and other evidential factors that it had not been. The reason was likely staff inexperience, together with the midwives' belief that the delivery was going to be quick and that monitoring was not, therefore, necessary.