Liability was tried as a preliminary issue in this cerebral palsy claim, before the Honourable Mr Justice Plender at the Royal Courts of Justice from 04.06.08 to 12.06.08. Judgment for the Defendant was handed down on 30.09.08.

The Claimant’s case

The Claimant (DOB: 08.04.91) suffered sino-venous thrombosis (“SVT”) in the newborn period, which resulted in his cerebral palsy and severe learning difficulties. No criticism was made of the neonatal care.

The Claimant alleged the SVT was attributable to:

  • A traumatic delivery by Keilland’s forceps, complicated by shoulder dystocia (without Erb’s palsy); and
  • Intrapartum hypoxia.

It was alleged these problems would have been avoided if the Claimant had been delivered by Caesarean section. He argued the persistent tachycardia and other non-reassuring features on the CTG trace indicated fetal distress and therefore mandated the taking of a fetal blood sample. This would have shown acidosis and thus prompted a Caesarean delivery. Other factors, including the slowness of labour and a midwife’s suspicion that the Claimant was a large baby, made it unreasonable to allow labour to proceed.

Findings of Fact

The Judge found in the Health Authority’s favour on all the issues of fact. He was satisfied there was nothing, apart from the Claimant’s mother’s own impression that the baby was large; and a single note written by the midwife during labour, to alert the medical staff to the Claimant’s size. This information was not such as to cause a competent medical team to proceed to anything other than a normal vaginal delivery.

Although the Judge confirmed that he thought the Claimant’s parents were honest witnesses, he did not accept their evidence that the Obstetrician had put his foot on the mattress and used his leg to gain traction during the forceps delivery; and he was not persuaded that an unacceptable degree of force was used. He thought that after so many years, the parents probably had a partial recollection of what had happened.

The Obstetrician was seriously ill and lived in the USA, so was unable to attend trial. The Judge confirmed he did not draw any unfavourable inferences from the Obstetrician’s failure to give a detailed description of the forceps delivery in his witness statement.

Breach of Duty

Mr Nick Johnson, the Claimant’s Obstetric expert, was severely critical of the Obstetric management in his report. However, under cross-examination, he acknowledged he had misread some of the medical records material to the breach of duty issues and admitted his report contained exaggeration and hyperbole.

Mr Ian MacKenzie, the Health Authority’s Obstetric expert, maintained his opinion throughout the trial that all aspects of the Obstetric management were reasonable and acceptable, according to the standards of the time. It was notable that Nick Johnson made no criticism in Court of the reasonableness of Mr MacKenzie’s opinions and he acknowledged he had found their joint discussion instructive.

In his judgment, the Judge referred to the errors and hyperbole in Nick Johnson’s report and the concessions he made during cross-examination. He said Nick Johnson “had the advantage” over Mr MacKenzie of being engaged in current obstetric practice, but he acknowledged Mr MacKenzie had been in clinical practice for many years, including the time when the Claimant was born. He said, “Overall I had no hesitation in preferring the evidence of Mr MacKenzie”.

The Judge accepted some Obstetricians may have performed a Caesarean section, or managed the labour and delivery differently; but he could not conclude the Obstetrician’s actions were negligent.

The Judge also accepted Mr MacKenzie’s evidence as the basis for his findings that the labour was not obstructed; there was not a “complicated” tachycardia and it was not mandatory to take a fetal blood sample at any stage.

The Judge made no findings of breach of duty.

Causation

The causation issues were particularly complex. Dr Simon Newell, the Claimant’s Neonatology expert, argued the intrapartum hypoxia (although not causing any injury in itself) made the Claimant less able to cope with the stress of his delivery. He believed the flow of blood to the Claimant’s head was disturbed between the application of forceps and the delivery of the Claimant’s shoulder, which caused thrombus in the venous sinus. He did not consider the fact that the Claimant suffers from Protein C Deficiency, which increases the risk of blood clots, played any part in his SVT.

The Health Authority argued the Claimant could not prove his case on causation. The Haematology experts (Dr David Perry for the Claimant and Dr Trevor Baglin for the Health Authority) both confirmed Protein C Deficiency is capable, in itself, of causing SVT and it was argued on behalf of the Health Authority that this was the most likely explanation for the Claimant’s injuries.

Dr Anthony Emmerson, Neonatology expert for the Health Authority, explained that medical literature does not demonstrate a causal connection between birth trauma or fetal distress and SVT. Some authors have suggested there could be an “association”, but analysis of their case studies and methodology shows it would be unsafe to take these as proof of a causal link. Furthermore, no author has been able to explain the mechanism by which such factors could make blood more coagulable. It is also necessary to distinguish between literature relating to SVT (as suffered by the Claimant) and intra-ventricular haemorrhage (“IVH”), where different considerations apply.

The Judge confirmed he found both Dr Newell and Dr Emmerson to be impressive witnesses, but he preferred the evidence of Dr Emmerson. He noted particularly that Dr Emmerson had been very careful to distinguish between medical research suggesting an association between birth trauma and SVT and the issue of whether there was a proven causative link between the two. The Judge was not satisfied the Claimant had established that birth trauma could cause cerebral thrombosis; and any associations identified in the medical literature did not amount to proof.

In the circumstances, it was not necessary for the Judge to determine whether the Claimant had been exposed to risk factors for SVT by the conduct of the Health Authority; but if it had been necessary to determine that issue, he would have concluded the Claimant had not established the Health Authority had exposed him to any additional risk factor for SVT.

The Judge confirmed he agreed with Dr Emmerson that the Claimant had suffered a spontaneous haemorrhagic infarction, which gave rise to his brain injuries.

The Claimant, to date, has not sought leave to appeal.

David Westcott QC represented the Defendant Health Authority. He has a thorough, detailed knowledge of all the issues arising in SVT and IVH cases and the associated medical literature, having advised the NHSLA on several claims of this nature.

The Claimant was represented by Mr John Stevenson.