The judgment of Mr Justice Dingemans in the case of Wells and Smith v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB) comments on the inappropriate use of hindsight by experts to hold treating clinicians to a higher standard than that required by the law. It also considered the need for secondary victims to have experienced a sudden, shocking event in order to recover damages for psychiatric injury.

Experts and the correct standard of care

The matter concerned a mother and father who had brought claims against the Trust for damages for bereavement and psychiatric injury following the death of their baby. On arrival at the hospital at 08.00, a slightly accelerated foetal heart rate was recorded (but within normal range) followed by a deceleration at 08.56, which was attributed to maternal vomiting. The heart rate recovered but did not increase to its previous rate. At 10.00, the membranes were ruptured and it was noted that the baby had passed meconium.

Importantly, according to NICE Guidance, this was not a necessary indication for caesarean section. The foetal heart rate improved again at 10.20 but by 10.40 an abnormal reading was noted and it was reviewed at 10.45. NICE Guidance recommended obtaining a foetal blood sample but the attempt was unsuccessful. At 11.15, it was decided to carry out a caesarean section but sadly at 11.53 the baby was delivered with no signs of respiratory effort and pronounced dead.

The Claimants alleged that the CTG trace at 08.48 showed a “wavy” unstable baseline foetal heart rate and were critical of the decision to undertake a foetal blood sample.

The Consultant Obstetrician and Gynaecology and expert witness for the Claimants, gave evidence that there was a failure to recognise evidence of ongoing hypoxia on the CTG trace and that delivery by caesarean ought to have been recommended by 10.20. The Claimant’s expert was also critical of the failure to compare the foetal heart rate with the rate recorded at the last clinic attended by Mrs Wells. The expert witnesses for the Defendant explained however that it is not uncommon for the heart rate to fall in a maturing foetus and there was a risk of making a false comparison. The literature and guidance did not recommend making this comparison and Mr Justice Dingemans found that this was not a necessary step.

The Claimant’s expert was very critical of the response following the 08.56 reading but did not maintain his initial suggestion in oral evidence that every reasonable doctor should have carried out a caesarean section in response to the 08.56 hours deceleration. It was accepted by the Court that this was unsustainable because: (1) vomiting is a well-known cause of an abnormal trace and its effect on the CTG needed to be taken into account; (2) there was a recovery of FHR to 120 bpm, which although not at the pre-existing level was within the normal range; and (3) the CTG showed good variability and it was common ground there were 4 contractions every 10 minutes, which was the expected frequency of contractions.

Crucially, Mr Justice Dingemans found that the Claimant Expert’s changing evidence on whether all reasonable practitioners should have carried out a caesarean following the 08.56 hours deceleration gave him no confidence that he had appreciated the differences between:

  • Practices which he considered to be best practice
  • Practices which he considered to be reasonable
  • Practices which no reasonable practitioner would carry out

The judge went on to comment that the Claimant’s expert was unable to set aside hindsight and look at the evidence (namely the CTG trace) with the eyes of a reasonably competent and prudent doctor reviewing the reading in the course of that particular morning. Further, there was nothing in the NICE Guidance to suggest that a “wavy” baseline or absence of cycling on the trace were likely to be a problem.

The NICE Guidance did recommend CTG trace monitoring if meconium was present, which was being done. The Guidance also recommended taking foetal blood sample and, despite the Claimant’s expert’s objection to this approach, the judge found that there was a logical reason for carrying out the sample in order to gain a better idea of the foetus’ state; the measure did not fall foul of the Bolitho test. Mr Justice Dingemans found that the fact that the Guidance in 2007 and 2014 had recommended taking a foetal blood sample was strong evidence of the reasonableness of doing so. The judge was critical of the

Claimant’s Expert showing that he was “willing to condemn as negligent all doctors who accept and follow NICE Guidance on FBS in circumstances where there appears to be a logical reason” to do so.

The claim was therefore dismissed on failing to establish a breach of duty.

Secondary victims

The case also interestingly provided some comments on the seemingly increasing number of recent clinical negligence cases where claims by secondary victims for psychiatric injury are being made (see Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB); Wild v Southend Hospital NHS Trust [2014] EWHC 4053 (QB)).

The relevant  criteria for such a claim to succeed are set out    in Alcock v South Yorkshire Police [1992] 1 AC 310, namely:

  • A close tie of love and affection to the person killed
  • Being close to the incident in time and space
  • Directly perceiving the incident
  • Experiencing a sudden, shocking event arising from the death of or extreme danger to the relevant person 

In Alcock, a shocking event was described as a “sudden appreciation by sight of round of a horrifying event, which violently agitates the mind” and although the events were inevitably distressing to Mr Smith, there was no such shocking event.

The judge commented that the criteria have been referred to as “both arbitrary and pragmatic” (Ronayne) but that he was bound to apply them. The circumstances were not the same as in Walters v North Glamorgan NHS Trust [2003] P.I.Q.R. P16, for instance, where there was a sequelae of events that were found to be a single horrifying event. Mr Smith’s claim for damages for psychiatric injury would therefore have been rejected had negligence been established. It seems that for the time being Walters will remain a discrete example (on the particular facts of that case) of a successful secondary victim claim by a parent witnessing the death of their newly born child.