Palmer v Portsmouth Hospitals NHS Trust [2017]

EWHC 2460 (QB) (15 September 2017)

 

Jade Palmer was born on 30th August 1994. She suffered oxygen deprivation immediately before her birth, causing brain damage which resulted in Jade being born with cerebral palsy. Jade sued the hospital trust running the hospital in which she was born.

 

Jade’s mother, Ms Kim Wadey, was tended to mostly throughout her labour, by midwife Kim Piper.

 

  • Ms Wadey’s labour had progressed normally until 20:40hrs.
  • At 20:25hrs her cervix was fully dilated and Jade’s head was engaged.
  • At 20:30hrs active pushing was commenced.

 

Midwife Piper had been monitoring and recording the baby’s heart rate every 5 minutes as is normal. For reasons that were not entirely clear before trial she listened to the heart rate at 20:42hrs, only 2 minutes after her previous routine and expected recording at 20:40hrs. On this occasion, she heard the baby’s heart rate drop to 90 beats per minute (90bpm).

 

Evidence was heard concerning when a drop in heartrate might be a cause for concern and when it may be a normal response of the baby to a contraction. Judge Sir Robert Nelson observed in his judgment;

“Whatever the precise nature of what Midwife Piper heard at 20:40 hours I am satisfied that she was concerned by it. That is why she listened again some two minutes later at 20:42 hours rather than 5 minutes later. What she heard at 20:42 confirmed her concerns. There was a deceleration to 90 bpm with only a “fair” recovery to a lower bpm of 120.

The pattern which followed of further deceleration to below 80 bpm, (nearly 75 bpm with the bpm then remaining at 80 – 90 or 75 – 80) confirms that what Midwife Piper probably heard at 20:40 was the beginning of the developing foetal distress.

Whether she could have heard a deceleration or not, what she did hear caused her concern about the foetal heart rate which rightly led to her listening again in two minutes, rather than five minutes, leading to her hearing the deceleration at 20:42.”

At 20:44hrs midwife Piper decided to move Ms Wadey into a room suitable for an assisted delivery. It was at this point that she should have called for assistance according to the Defendant’s own policy and ultimately the court.

Evidence was heard that the midwifery desk had to be passed to go to the new room. Instead of requesting assistance however, she merely told the desk that a doctor “might be required”, not that one was.

 

The Trial

At trial, the Defendants conceded that this was a breach of duty and one might reasonably assume from this that the court was bound to find in favour of the Claimant. However, Sir Robert Nelson had to consider what the outcome would have been had midwife Piper actually made the call at 20:44.

Would making this call earlier have made any difference to the outcome?

The level of detail that the court had to go into may at first seem excessive but it was important to try and establish, on the balance of probabilities, what the likely course of events would have been.

The window that the clinicians had to deal with was accepted by both parties to be until 20:58. This is the time that it would have been necessary for Jade to have been delivered in order for her injuries to have potentially been avoided.

 

The Evidence

There were two registrars on call. The hospital system was that the first registrar would be called, if it became apparent that he was not available, then the second would be paged. If the second registrar was also unavailable, then the consultant should have been called.

The midwife’s notes confirm that the first registrar was called at 20:50, but he was in theatre dealing with another emergency and would only become available at 21:05.

Bizarrely, until the trial date, no evidence of any kind had been produced showing that a second registrar was even available. Dr Perkins (the second registrar) had provided no witness statement, nor it seems had one been sought.

The court heard that most hospitals do not have a second registrar but that as this was a particularly large facility one was, on this occasion, routinely provided. Because neither side had picked up on the fact that a second registrar could have been called, the court was left to deduce what, in all likelihood, had happened. 

From the notes and evidence, Lord Nelson concluded that the second registrar was available but that he was not called.

Having established that the second registrar was available and was not called, and that the first registrar would never have made it to the delivery room in time, Lord Nelson was then required to construct the most likely timeline of events had hospital policies been adhered to, and the second registrar been called.

So the movements of a person who had never been required to give evidence in the trial were constructed based on the judge’s findings of where he would, in all likelihood, have been when he received the call, what he would have been doing and how long it would have taken him to arrive in the delivery room, given where he started from. All this was based on a plan of the hospital. It was then necessary to determine how long it would have taken Dr Perkins (the second registrar) to deliver Jade once he arrived, in order to establish the most likely time of her birth.

How long, on the balance of probabilities, would it have taken for the second on-call registrar to arrive at the delivery room?

The Defendants submitted evidence from an experienced clinician that 10-15 minutes was an expected arrival time for a gynaecology registrar. This was not based on any protocol or guidance but just on his own experience.

The judge found that the 2nd registrar would in all likelihood have been on the ward and less than 125 yards away, and, in all likelihood would not have been dealing with an emergency. He allowed a total of 5 minutes for this notional registrar to arrive in the delivery room. This consisted of;

 

  • A period of 2.5 minutes for a “brisk walk” along the 125 yard distance showed on the hospital plan to the delivery room.
  • 1.5 minutes to answer the bleep, appreciate the urgency, cease to examine any patient he was with and explain the need to leave and attend this emergency.
  • 1 minute to descend and ascend the stairs at either end of the journey.

“He would therefore on the balance of probabilities have entered the delivery room at 20:52” – Paragraph 89

 

How long would the delivery have taken after the doctor’s arrival?

There was much more expert guidance available on this issue. Having heard from expert gynaecology witnesses from both sides Lord Nelson concluded that the delivery would, on the balance of probabilities, have taken more than 6 minutes.  This is crucially the time that the 2nd registrar would, on the balance of probabilities, have had available to him to deliver Jade in good health.

“Even if it was to be assumed that Dr. Perkins was of high skill and experience, I cannot regard it as being more than possible, given the tasks that would have had to be done before the baby could be delivered by forceps, that she would have been born before the end of 20:58. It is certainly possible, but cannot in my judgment be described in all the circumstances as probable.

It is equally likely that the process would have taken an extra minute or more and hence Jade would have been delivered at the time she was actually born namely 21:00.

Six minutes is possible but so is a slightly longer time of seven minutes or even more. I am not able to find that on the balance of probabilities that the delivery time would have been six minutes or less.

He continues…

Whilst I am satisfied that there was a breach of duty by the Defendant, I am not able to find that causation is established. I have found that the second on call registrar was available to be called, that he was not called, but that even if he had been, I am not satisfied that the delivery time would on the balance of probabilities, have been any different to that which in fact it was i.e. 21:00.

That time would have been too late for Jade to have avoided injury. This is a sad and unusual case, in which labour had been entirely normal until 20:40 when, without any prior warning, the foetal heart rate altered and a pattern of deceleration developed leading to foetal distress and birth asphyxia.

The whole process from the first altered heart rate to birth was some twenty minutes. Even if medical assistance had been called as soon as it ought to have been, the evidence does not demonstrate that on the balance of probabilities a different result would have been achieved.

I must accordingly dismiss the claim”.

  • The trust was negligent in that its employee failed to call the 2nd registrar at all.
  • The trust was not liable because even if they had called for assistance from the first registrar by 20:44hrs, and even the second registrar had been called at all, and in that event by 20:47hrs, the outcome for Jade, in the view of the court, would, in all probability, have been exactly the same.

The information in this post was provided by Michael Shaw, head of the Clinical Negligence and Personal Injury department at Carter Moore Solicitors. Find out more about how we can help with your medical negligence claim here.