CNZ v Royal Bath Hospitals NHSFT & The Secretary of State for Health and Social Care

Bevan Brittan acted for the Defendants in this recent case, where judgment was handed down on 11 January 2023 by Mr Justice Ritchie, who found for the Claimant. The case concerned maternity care provided to a Mother in 1995/6, whose baby suffered a hypoxic insult during delivery and suffers from cerebral palsy as a result.

The judgment has significant implications for defendant maternity Trusts as it confirms that the case of Montgomery v Lanarkshire Health Board [2015] applies to discussions on treatment options and consent, antenatally and intrapartum from the 1990s onwards. The judge also found that a defendant will be liable for 100% of brain injury unless it can show that a degree of functional outcome was demonstrably related to non-negligently caused injury.

The Defendants sought permission to appeal on the following 4 grounds:

1. demonstrable misunderstanding of relevant evidence/making a critical finding of fact which had no basis in the evidence
2. wrongful application of Montgomery principles to the intra-partum decision-making.
3. Wrongful rejection of the evidence of Mr Tuffnell on the standard of care.
4. Error in law on approach to material contribution.

Mr Justice Ritchie gave permission to appeal in relation to ground 4 due to the significant public interest and effect on the public purse potentially caused by his findings on material contribution but he declined permission in relation to the other grounds. The Defendants have applied to the Court of Appeal for permission to appeal these and proceed to appeal in relation to material contribution. A decision/hearing is awaited.

Background

The Claimant’s mother became pregnant with twins in 1995, having had 3 previous vaginal deliveries, resulting in the early still birth of a deformed fetus and 2 healthy children. The antenatal notes recorded a preference for normal vaginal delivery (NVD) and upon assessment at 38 weeks, the Mother consented to induction of labour. The Mother was documented to be opposed to ARM and epidural anaesthesia following previously bad experiences with both procedures.

The mother was admitted for induction. At 00:01 on 3 February, Twin 1 was delivered vaginally, which was captured in a video recording. Twin 2 did not descend and syntocinon was commenced. At 0026, following assessment by ultrasound and vaginal examination, the registrar indicated to the parents that they needed to start thinking about alternatives to NVD, including caesarean section and she left the room to discuss this with a consultant. Mr Justice Ritchie found that the Father made a clear request for a caesarean section during this conversation, which he perceived could be heard on the video recording. This was disputed by the defendants. The registrar returned to the room after speaking to the consultant but by this time, the video had stopped and did not capture what occurred next. The defendant’s evidence was that a discussion on the pros and cons of NVD/caesarean section took place, which led to transfer to theatre for ARM with possible progression to caesarean section. The CTG was discontinued at 0140 for transfer but was reassuring up to this point. Upon arrival in theatre, further VE confirmed that there had been no descent of Twin 2. The Mother declined ARM, which was the registrar’s recommendation and the registrar rang the consultant, who confirmed that caesarean section could proceed. The Claimant was born at 01:03, in poor condition. She required resuscitation and her heartbeat returned to >100 bpm by 01:06. She has subsequently been diagnosed with quadriplegic cerebral palsy.

The Judgment

Mr Justice Ritchie found that the Supreme Court decision in Montgomery v Lanarkshire Health Board applied in 1995/6, although was somewhat troubled by this, noting that it “probably” did. He was unsure whether it could be applied to practice earlier than this. In this case, he found that a Montgomery discussion did take place antenatally leading to the decision for induction of labour.   

Intrapartum, the judgment was founded on the judge’s view that there had been a clear request for caesarean section at 0026 hours. He found that there should have been a Montgomery discussion at this point, which would have quickly led to a decision for caesarean section, despite the doctors’ views that controlled ARM would be the best and safest way to deliver. He found that the doctor’s practice was “too paternalistic” and that there was a persistence in pursuing ARM in spite of maternal opposition. He found there were delays in transfer and a lack of urgency and found that the baby should have been delivered 6.5 minutes earlier, a mid-point in his finding that the negligent delay was 5 to 8 minutes. He rejected Derek Tuffnell’s evidence on the standard of care and preferred the Claimant’s expert, Patrick Forbes.

The Judge decided that the hypoxic insult probably lasted 16 minutes from 0050 to the point of resuscitation at 01.06. The first 10 minutes of any insult would not have been causative of damaging brain injury. Allowing for his finding that the negligent delay was 6.5 minutes, he found that she would have avoided all brain damage but for the negligent delays.

Evidence was called from paediatric experts on the issue of material contribution. The Claimant argued that if there was a finding of negligence after the first 10 minutes of non-damaging hypoxic-ischaemic insult, then the Defendant should be 100% liable, whereas the Defendant had argued that because damage was increasing by the minute, non-negligent damage could and should be divisible from negligent damage. The judge rejected the defendant’s expert evidence that the damage caused could be allocated to 5 minute periods (aliquots) and was therefore capable of being divided into negligently and non-negligently caused damage because of a lack of sufficient certainty as to the functional outcome for an individual who suffers unavoidable damaging hypoxia. As such, he awarded the Claimant 100% damages, albeit permission to appeal this was given.

Clearly there will be implications for maternity Trusts if this judgment stands. While there can be little doubt that policy and practice have changed exponentially since the 1990s, rightly putting patients’ autonomy at front and centre, clinicians will need to be aware that a gold standard approach might be applied to discussions on treatment options (even “in the throes of labour”) and where doctors do not necessarily consider an option to be in a patient’s best interests. Once again, record keeping will be paramount to the successful defence of future claims.