NKX (by his mother and litigation friend) v Barts Health NHS Trust [2020] EWHC 828 QBD – Case Digest

NKX (by his mother and litigation friend) v Barts Health NHS Trust [2020] EWHC 828 QBD

Case Law Digested by Barrister Penny Maudsley

Midwives negligent by not giving advice about the benefits of continuous fetal monitoring over intermittent ausculatation in a case where there was a risk of uterine rupture from previous caesarean section. Baby born with significant brain damage.

The Claimant’s mother claimed that she was given no or no sufficient warning that she should have continuous fetal monitoring (CFM) when she was in labour; that if she had been given appropriate warnings she would have accepted CFM rather than, as in fact occurred, monitoring by intermittent auscultation (IA); that CFM monitoring would have detected abnormalities of the fetal heart earlier than abnormalities were in fact noted; that as a consequence a uterine rupture would have been detected more quickly than in fact was the case; and that delivery would therefore have been achieved more quickly, thus avoiding some of the acute profound hypoxia that accompanied the uterine rupture and some or all of the permanent brain damage resulting from it.

The Claimant also claimed that IA should have increased in frequency from the point at which midwifery staff should have known or assumed that the mother was in the second stage of labour, and that such an increase in frequency would, again, have resulted in earlier detection of the uterine rupture.

Central to the question of breach of duty was whether the Defendant’s midwifery staff took reasonable steps to inform the Claimant’s mother that if monitoring was by IA rather than CFM the risk that a uterine rupture would be detected later than would otherwise be the case was increased and thus so was the risk of the baby sustaining permanent brain damage. 

It was the Claimant’s case that the mother did not appreciate the consequences of her decision to opt for delivery in a birthing centre without access to CFM, it not having been made clear to her by midwifery staff either when discussing options for delivery or when she arrived at the hospital in labour.

It was the Defendant’s case that the mother opted for delivery in the birthing centre monitored only by IA fully aware of the risks and benefits of so doing and exercising her undoubted right to choose how and where she would labour and with what monitoring.

Medical professionals are under a duty to take reasonable care to ensure that their patient is informed of any material risks, Montgomery v Lanarkshire Health Board [2015] UKSC 1. In determining whether reasonable care was or was not taken the Claimant was required to prove that the midwife who is said to have been negligent was responsible for such failure as no midwife of ordinary skill and care would responsible for when acting with ordinary care. See Bolam v Friern Hospital Management Committee [1957] 1 WLR 583.

At her booking appointment, the Claimant was advised that she would be a candidate for a vaginal birth after caesarean section (VBAC) even though A VBAC was considered to be ‘high risk’ because there was a small but real risk of uterine rupture through the caesarean scar during labour.

The Claimant’s mother and her husband attended the VBAC clinic appointment at which the risks and benefits of a VBAC delivery were discussed. A proforma was completed suggesting that the risk of uterine rupture was discussed. However, the parents said that there was no elaboration and that as a result they did not appreciate what CTG monitoring entailed and did not appreciate that it was designed to give early warning where possible of uterine rupture. They were adamant that they did not appreciate that a risk of rupture was permanent brain damage to the fetus.

The Claimant’s mother by this stage had become interested in a water birth. It was possible to have a water birth monitored by wireless CFM in Room 10 on the delivery suite. However, the birthing centre, a midwifery led unit for women with low risk pregnancies, had 10 rooms each with a pool. It was possible that even in the birthing centre wireless CFM monitoring could take place, but only if the Room 10 monitor was available as there was only one wireless monitor in the hospital. The Claimant’s mother was not discouraged from this suggestion as the hospital always tried to accommodate the mother’s wishes.

The Claimant’s mother had a consultation with a consultant midwife, its purpose was to discuss the birth plan and to agree it if possible. By this time, she had been informed that VBAC was regarded by many women as the more positive experience; that there were risks and disadvantages but that they would be mitigated by close monitoring; that she knew close monitoring included CFM and that CTG monitoring had been specifically mentioned; and that having a water birth in the birthing centre was a reasonable option that would be considered in detail at the consultation.

The consultant midwife stated that it was made clear that wireless CFM monitoring might not be available and if the Claimant’s mother still wanted a water birth then the monitoring would have to be by IA. She said that she explained what IA was and explained the disadvantages of IA over CFM. She had no doubt that the Claimant’s mother understood what IA entailed.

Thus, the birth plan was agreed in the following terms: [p26]:

“… To use room 10 on D/S with wireless monitoring if available

… if RM 10 not available would like to come to the BC for waterbirth. If wireless monitoring not available will have intermittent ausc aware of RCOG guideline. Have informed [NMK] plan depends on staffing on BC at time of admission”.

The Claimant’s mother said that the concept of CTG monitoring was not explained to her at the antenatal consultations and she was given no information on the differences between CFM and IA. She knew that if she had a waterbirth monitoring would either be “wireless” or, if there were sufficient trained staff, would be by IA. However, she did not appreciate that IA carried with it more risk for the baby, she did not understand the advantages and disadvantages of IA over CFM. In any event “on the day the doctors would be there to discuss and go over this with me again.”

The Claimant went into labour at 41 weeks gestation. She attended triage and by 00.20 hrs was having the urge to push so was transferred to the birthing pool whereby IA was undertaken. No checks were made as to whether the Claimant was in second stage of labour. Observations by IA were carried out by a midwife at 23.20, 23.40 and 24.00 hours and they were all normal. It was recorded that there were IAs carried out at 00.35 and 00.45 hours and that they were also normal.

A midwife listened to the fetal heart by sonicaid for a full minute at 01.00 hours and it seemed to be normal; there were no decelerations and there were accelerations. She then listened to the heart again at 01.15 hours and immediately picked up a deceleration that did not appear to be recovering. With commendable expedition she realised that this might be an emergency and pressed the emergency buzzer for assistance. The obstetric registrar arrived immediately. She confirmed that there was scar tenderness and a fetal heart rate of 80 bpm. The Claimant’s mother was taken to theatre immediately, arriving at 01.28 hours. a decision was taken to perform a category I caesarean section. Delivery was achieved at 01.46 hours. The Claimant was born in poor condition He was transferred to the neonatal unit and then to the Royal London Hospital for therapeutic cooling. 

An MRI was performed which revealed changes suggestive of the Claimant having sustained brain damage consequent upon an acute near total hypoxic-ischaemic insult.

Sadly, the brain damage has been confirmed clinically. In a condition and prognosis report it was stated that the Claimant is “permanently handicapped by the effects of an evolving, but predominantly dystonic, four-limb cerebral palsy. He is microcephalic and his cognitive abilities are impaired, such that they fall into the severe or even profound learning disability range”.

In his judgement, Deputy High Court Judge Simeon Maskrey QC made findings [p33] that the Claimant’s mother appreciated the difference between CFM and IA and did appreciate that CFM carried a greater chance of detecting a rupture than IA.

The counselling given antenatally was reasonable and appropriate [p71]. The Judge considered that in the context of the earlier counselling by the midwife and in particular the recitation of the risks and benefits of VBAC contained in the proforma the Consultant Midwife did sufficiently alerted the Claimant’s mother to the risks inherent of having IA. He considered that she was entitled to conclude that the Claimant’s mother knew the difference between CFM and IA, knew that continuous CTG monitoring was a form of CFM and knew that CFM was better for the baby than IA. He concluded that the Claimant’s mother did in fact appreciate such matters.

The Judge also concluded that the Claimant’s mother knew of the increased risks of having a water birth with IA as contrasted with labouring with CFM whether in a pool or otherwise. She may not have appreciated that Hypoxic Ischaemic Encephalopathy (HIE) could lead to brain damage but she knew that it was “bad for the baby” and in his judgment that sufficed.

However, it was necessary for the counselling to be repeated [p73] when the mother came into the hospital in labour. It was evident that he did not consider that there was any counselling or re-assessment of risks when the Claimant’s mother came to the hospital in labour. Given the agreement of the midwifery experts in the joint discussions that “the birth plan requires reconsideration during the course of the pregnancy and in particular when the mother goes into labour” that sufficed to conclude that there was a breach of duty on the part of the Defendant during the night of delivery.

The Judge stated [p75] that any repeated counselling and re-assessment should have set out the risks inherent in not having CFM but should also have emphasised that staff could not guarantee the close monitoring by a midwife that the parents had expected because the unit was so busy, that CFM simply could not happen in the pool because there was no available wireless CTG monitor, and that there may have been no staff available who had experience of caring for a VBAC mother who was not continuously monitored.

When the Claimant’s mother arrived in triage [p57] her preference was for a water birth. She probably said as much to Midwives. However, she did not have a preference for IA, did not need to be persuaded to have CTG monitoring and she did not decline to have the CTG monitoring continued after she had been to the toilet. The midwifery staff simply considered that her birth plan had been agreed by Consultant Midwife and, whatever they thought about it, it was a plan that they should support. He did not consider that they were shocked or unduly concerned, although they may have considered it an unusual turn of events. They did not warn the Claimant’s mother of the risks or potential consequences of IA nor did they recommend she should have CFM in order to reduce the risk to the baby. He found that because triage and the delivery suite were so busy they did not have the time or the incentive to discuss with the Claimant’s mother her birth plan and that they did not do so. She was transferred to the birthing centre because midwifery staff believed she was content to labour there and it was preferable that she should be there rather than remain on triage. They did not escalate any concerns that they might have had to the midwife coordinator or an obstetrician. 

The Claimant’s mother, in the Judge’s view, was not driven to achieve her ideal birth-plan at the expense of significantly increased risk to her baby. He believed that she had assessed the risk and considered that it was minimal. The reality of labouring in a busy maternity unit would have caused her to re-evaluate her decision with the input of her husband. With that input he considered she would have opted for CFM if it had been emphasised that that was the advice of the midwives on the night. The Judge found that that there should have been a re-statement of the risks to the Claimant’s parents on admission on the night of delivery; that they should have been told that CFM was recommended and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM. Accordingly, that in such circumstances there would probably have been continuous CTG monitoring. [p87]

Having considered the evidence of the labour and delivery, the Judge found that on a balance of probabilities, the Claimant’s mother was in the second stage of labour from 00.35 hours. Midwifery staff ought to have confirmed as much by carrying out a vaginal examination or they ought to have assumed that she had entered the second stage. In either event IA should have taken place every 5 minutes thereafter. [p79]

The Claimant’s mother was in continuous pain at or around 01.00 hours and that it was a breach of duty not to have recognised that this was a sign of uterine rupture and to have called for obstetric assistance.

If the Claimant’s mother had been the subject of CFM it would have been apparent by 01.00 hours that there was a potential obstetric emergency. All reasonably competent midwives (and certainly a majority) would have sought urgent obstetric assistance by 01.00 hours. [p103].

If obstetric assistance [p106] had been called at 01.00 hours the same sequence of events as in fact occurred would have occurred 15 minutes earlier. After hearing evidence regarding the time of delivery and the consequences of earlier intervention, the Judge stated that it followed that delivery would have been at 01.31 hours and effective resuscitation by or about 01.32 hours. If delivery and resuscitation had occurred before 01.34 hours the Claimant would have avoided all permanent brain damage.

If the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of his findings that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage, but it would have been mild, rather than severe as is now the case.

Judgment was for the Claimant on the basis that but for the breaches of duty that occurred at the maternity unit on the night of delivery he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability.

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