Aspinall v Secretary of State for Health [2014] EWHC 1217 (QB)

[2014] EWHC 1217 (QB)Case No 2MA90005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester M60 9DJDate 16/04/2014
Before
MR JUSTICE PHILLIPS
Between
JOHN ASPINALLClaimant(A protected party by his Litigation FriendClaimantEVONNE JACQUELINE TAYLFORTH)SECRETARY OF STATE FOR HEALTHDefendant
Michael Redfern QC (instructed by Pannone) for ClaimantBenjamin Browne QC (instructed by Hempsons Solicitors) for DefendantHearing Hearing dates: 18, 19, 20, 21, 24, 27 March 2014
JudgmentMr Justice Phillips :Introduction
[1]On 8 April 1982 at 21:55 hours the Claimant was born at Queen’s Park Hospital, Blackburn (“the Hospital”). He was delivered at 32 weeks gestation by Caesarean section, weighing just 1400 grams. He was born in poor condition, there being no signs of life other than a heart rate below 100 beats per minute. He was successfully resuscitated, taking his first breath at three minutes and achieving regular respiration by seven minutes. By ten minutes he was ascribed an APGAR score of 9/10. However, on transfer to the Special Care Baby Unit (SCBU) after 20 minutes he was suffering from hypothermia with a temperature of 33.5°C. He was reintubated with a nasal tube and placed on a ventilator. Over the following hours he was given intensive care, but suffered from both respiratory and metabolic acidosis and from hypercarbia. It is common ground that the Claimant developed hyaline membrane disease, a stiffening of the lungs which was a risk for any premature baby in 1982. It is also common ground that at some point he suffered a bleed in his germinal matrix, leading to intraventricular haemorrhage (“IVH”), hydrocephalus and the development of venous cerebral infarction.[2]The resulting brain injury left the Claimant with asymmetric diplegic cerebral palsy with significant involvement of the left arm, cognitive, behavioural and physical problems and epilepsy from age six. The Claimant at no stage acquired legal capacity.[3]In these proceedings, commenced in 2012 (although legal aid was granted as long ago as 1993), the Claimant alleges that the above matters were caused by negligent care provided by the Hospital at the time of his birth. The Defendant now has legal responsibility for what occurred at the Hospital at that time.[4]By the end of the trial of issues relating to liability only, the allegations of negligence had been reduced to the following four contentions:(a) that the attending doctor, Dr Sunita Nagpal (then known by her maiden name of Batra), a senior house officer (“SHO”) and locum registrar at the Hospital, had failed properly to resuscitate the Claimant immediately following his birth, having intubated him on four occasions in the operating theatre following his delivery;(b) that Dr Nagpal was negligent in allowing the Claimant to become so cold by the time he reached the SCBU;(c) that Dr Nagpal was negligent in failing to detect and rectify a problem in the Claimant’s ventilation during a 45 minute period between 23:30 on 8 April and 00:15 on 9 April, instead carrying out other (entirely proper) procedures, but without first ensuring proper ventilation;(d) that the doctors responsible for the Claimant, not limited to Dr Nagpal, failed properly to manage the Claimant’s ventilator settings between 04:55 and 14:10 on 9 April 1982.[5]However, by the close of the trial Mr Redfern QC, Counsel for the Claimant, accepted that allegations (a), (b) and (d) could not in themselves be said to have caused the Claimant’s brain injury. The focus of the claim had by that time become allegation (c), relating to the 45 minute period between 23:30 and 00:15. During this period the Claimant became extremely unwell, his heart rate dropping to 40 beats per minute despite being given 100% oxygen. Blood taken at 00:15 revealed very poor oxygen concentration (p02 28.1 against a normal reading of 60-85mmHg), excessive carbon dioxide concentration (pC02 108 contrasted with a normal reading of between 33 and 45mmHg), severe respiratory acidosis (blood pH 6.788 contrasted with a normal level of 7.35 to 7.45) and severe metabolic acidosis (base excess of minus 24, the normal level being zero). At 00:15 the Claimant was reintubated, Dr Nagpal noting that his colour improved immediately and that “probably the previous tube had slipped out”. Both Dr Smith, the Consultant in Paediatrics called by the Claimant, and Dr Harris, the consulting paediatrician called by the Defendant, gave evidence that the Claimant’s brain injury probably commenced during this 45 minute period with a bleed in the germinal matrix. Professor Weindling, a professor of perinatal medicine called by the Defendant, whilst more cautious than Dr Smith and Dr Harris as to the probabilities, accepted that the Claimant’s condition in the 45 minute period would have “encouraged” commencement of a germinal matrix bleed.[6]The case was opened by Mr Redfern on the basis that the Hospital had been negligent in allowing Dr Nagpal to deal with the Claimant post-delivery, asserting that she had lacked sufficient experience to deal with what was likely to be a difficult case. However, it was confirmed during the course of the trial that Dr Nagpal had had at least 2 years experience as an SHO in paediatrics and that immediately prior to taking up her position at the Hospital, she had completed a six month placement as an SHO in neonatology at Sorrento Maternity Hospital in Birmingham, a tertiary unit. She confirmed in evidence that during that time she had intubated many babies, including up to ten in a similar condition to the Claimant’s, with no complaints or difficulties. The consultant for whom Dr Nagpal worked, Dr Fossard, confirmed that Dr Nagpal had been appointed as his middle-grade assistant, was totally competent to deal with a case such as the Claimant, and that he would have expected her to do so without summoning him. He expressed the view, from which none of the experts dissented, that a middle-grade doctor such as Dr Nagpal was the most competent at handling new babies, doing it on a far more regular basis than a consultant. In light of that evidence, Mr Redfern sensibly did not pursue the allegation that Dr Nagpal was not sufficiently experienced to attend the Claimant.

The Facts

[7]The Claimant’s mother, Evonne Taylforth, was 20 years of age when she gave birth to the Claimant. She was admitted to the Hospital as an emergency on 29 March 1982 with very severe pre-eclampsia. Her blood pressure began to rise steeply and she developed headaches. She was delivered by emergency lower segment Caesarean section on 8 April 1982. In the latter stages of her pregnancy she had been on a diazepam drip and she was also prescribed pethidine.[8]Reports from 30 March 1982 to the day of delivery make numerous references to the foetal heart being “heard and regular”, although there is no such record in the six hours prior to delivery. The notes refer to the use of CTG (continuous electronic monitoring of the foetal heart rate) at 4pm that day and it may be that this continued to delivery.[9]Dr Nagpal made what Dr Harris described as very full notes with a very good narrative which was easy to follow. Neither Dr Smith nor any of the other expert witnesses suggested otherwise.[10]As stated above, the Claimant was delivered at 21:55 in poor condition with an APGAR score of 1, indicating that he showed no signs of life other than a heart rate below 100. Although Dr Nagpal understandably, after 32 years, has no recollection of the events in question, she confirmed that the usual practice was that a midwife would have been standing by at delivery and would have placed the baby into a warm towel to dry him off. He would then have been placed in another warm towel and handed to Dr Nagpal, who would have put him on the resuscitaire where Dr Nagpal, as she recorded, commenced resuscitation. The resuscitaire had an overhead heater and was lined with cotton wool-like material called “gamgee”. At all times Dr Nagpal would have endeavoured to keep the Claimant warm by wrapping the gamgee around him whilst commencing resuscitation and intubation which was the priority.[11]Dr Nagpal’s notes, reflecting what occurred following the Claimant’s birth at 21:55, read as follows:
“Live male flat Breech Delivered in Poor Condition H.R <100/b/m at Birth required intubation H.R not very good still Secretions ++. Started with Spontaneous Breathing at 3 mts but very poor colour. Narcain 2ml I/V + Dextrose with 4.2% NAHCO3 given via umbilical vein. Had to be reintubated 3 times in total in labour ward as tube slipped on third intubation at 5 mts Baby picked up Good colour H.R >140/b/m.” in Poor Condition H.R <100/b/m at Birth required intubation H.R not very good still Secretions ++. Started with Spontaneous Breathing at 3 mts but very poor colour. Narcain 2ml I/V via umbilical vein. Had to be reintubated tube slipped on third intubation at 5 mts Baby picked up Good colour H.R >140/b/m.”

tube slipped on third intubation at 5 mts

[12]Dr Nagpal interprets her notes as recording that she intubated the Claimant three times in total within a few minutes of his birth in order to ensure that the tube was in the right place and that he was properly ventilated. The Claimant’s case is that he was reintubated three times, making four intubations in total. Dr Smith accepted that three intubations, whilst not ideal, was not unacceptable, whereas four intubations amounted to inadequate treatment. Dr Harris and Professor Weindling did not agree with the latter view, pointing out that what mattered was ensuring that the Claimant was properly ventilated. The fact that he was breathing by seven minutes and achieved an APGAR score of 9 at 10 minutes meant that he was effectively and adequately resuscitated and ventilated during that period. I consider the question of whether there were three or four intubations in the operating theatre in more detail below.[13]Once the Claimant was stabilised he was moved from the resuscitaire in the operating theatre (which was on the second floor of the Hospital) to the SCBU, located on the ground floor. Once in the SCBU he was changed onto a nasal tube without difficulty, although his heart rate dropped to 40 beats per minute, it being common ground that this was probably because of vasodilation resulting from the intubation, not something of which the Claimant now complains in these proceedings. Dr Nagpal’s notes record that, on arrival at the SCBU, the Claimant’s temperature was only 33.5°C. An IV drip was set up to administer calcium gluconate and dextrose. She recorded that the heart rate increased and the baby acquired good colour. He was at first being given 100% oxygen, but that was reduced to 70%.[14]At 23:00 hours the results of blood gas analysis showed that the Claimant was acidotic. He had a pH of 7.01, pCO2 of 58.7, with a base excess of -17, and actual bicarb of 13.9. However, his oxygen concentration was 82.9, indicating that, at that stage, he was being effectively ventilated. Dr Nagpal administered 3.5mmol of 4.2% sodium bicarbonate to counteract the acidosis.[15]However at 23:30, while the sodium bicarbonate was being given, Dr Nagpal recorded “baby had already started to go off again” and that the heart rate had fallen to 40 beats per minute. The notes then record that Dr Nagpal took the following steps:(i) the ventilator settings were changed, but there was no change of colour in 100% oxygen;(ii) Dr Nagpal transilluminated the baby to check for a pneumothorax, but that test was negative;(iii) Dr Nagpal checked that secretions were not blocking the endotracheal tube;(iv) Dr Nagpal checked with a stethoscope that air was entering on both sides, but noted that poor colour continued and the heart rate remained down;(v) the Claimant was given 10ml of plasma and 20ml of fresh O negative blood, but there was still no change in colour.[16]At 00:15 blood was taken which gave rise to the results referred to above, indicating that the Claimant had deteriorated to a perilous state, being poorly oxygenated, highly acidotic, and with a high Co2 concentration. It was at that point that Dr Nagpal reintubated, following which colour improved immediately, leading her to conclude that the tube had probably slipped out. At 01:15 Dr Nagpal recorded that the Claimant had severe hyaline membrane disease. She also noted that the endotracheal tube was a little low, being just at about the bifurcation point. It was pulled out by 1cm. At this point the Claimant’s temperature was still only 34.5°C. Dr Nagpal noted that she would allow the baby to warm up before putting in a catheter.[17]Blood gases taken 1:25am showed the Claimant’s pH had improved to 7.16, his PCO2 had declined to 53.7 his base excess to -10.9 and his pO2 had risen to a normal level at 75.[18]At 02:30 the Claimant had another “dusky episode” notwithstanding that he was in 100% oxygen. Dr Nagpal noted that the heart rate was good and that the colour improved on its own over a period of two minutes. She also noted that the “tube was OK”.[19]At 04:00 hours Dr Nagpal called for Dr Fossard, her consultant. The baby’s oxygen concentration remained low and changing various settings on the ventilator did not improve matters and the baby was left in 100% oxygen.[20]The Claimant remained unwell over the ensuing hours. In particular, blood gas readings recorded a consistently high level of CO2, or hypercarbia.[21]Dr Fossard subsequently recorded in a letter that the Claimant had first experienced fits within 48 hours of his birth. However, the first mention in the Hospital’s records of fits was on 12 April, which initially led the Defendant to contend that the Claimant did not suffer an IVH until that date. That issue ceased to have relevance as it became common ground during the trial that, whenever the IVH occurred, it would have followed from a bleed in the germinal matrix at an earlier point, most likely starting in the 45 minute period identified above.

Allegations of Breach of Duty

[22]The parties are agreed as to the relevant legal test. The treatment the Hospital (and in particular Dr Nagpal) provided to the Claimant falls to be judged against the standard of the ordinary skilled person exercising and professing to have that special skill. A person need not profess to the highest skill: it is sufficient if he exercises the ordinary skill of a competent person exercising that particular art (see Bolam v Freirn Hospital Management Committee [1957] 1 WLR 582).[23]In Bolitho v City and Hackney Health Authority [1998] AC 232 Lord Browne-Wilkinson emphasised that a doctor was not entitled to be exonerated merely because some other doctors would have acted as he did. The practice relied on had to be responsible and reasonable. It had to have a logical basis, and where it involved weighing comparative risks, it had to be shown that those advocating it had directed their mind to the relevant matters and reached a defensible conclusion.[24]I first deal with the three alleged breaches which, in the end, were not alleged, in themselves, to be causative of the Claimant’s brain injury. I shall then turn to the central allegation relating to the 45 minute period between 22:30 and 00:15. The Number of Intubations in the Operating Theatre[25]As indicated above, this allegation ultimately rested upon there having been a total of four intubations of the Claimant in the operating theatre, Dr Smith conceding that three intubations would not have fallen below a reasonable standard of care.[26]The Claimant relies upon a strict analysis of Dr Nagpal’s notes, pointing out that, after referring to the fact that the Claimant required intubation, Dr Nagpal later wrote “had to be reintubated 3 times in total… as tube slipped on third intubation at 5 minutes baby picked up”. The Claimant says that this plainly means that the Claimant was reintubated three times, making four intubations in all. This, the Claimant points out, was how Professor Weindling appears to have interpreted the notes in his report.[27]I do not accept that interpretation of the notes is correct. Dr Nagpal’s notes, whilst full and detailed, were very much in note-form, lacking punctuation and often running sentences together. In my judgment the phrase “3 times in total” refers to the total number of intubations (not reintubations), confirmed by the subsequent reference to the baby having picked up following the third intubation. This is how Dr Nagpal reads her own notes and is consistent with the view of Dr Harris and Professor Weindling that it would be practically impossible to intubate a baby four times in the short period in question.[28]In any event, I accept the views of Dr Harris and Professor Weindling that the adequacy of the resuscitation of a baby should not in any event be judged by the number of intubations necessary to properly ventilate the baby, but by the effectiveness of the resuscitation within the first five minutes and the first ten minutes. It is clear from Dr Nagpal’s notes that effective resuscitation was underway at five minutes and that the baby had been fully resuscitated at ten minutes.[29]In summary, I see no basis for the allegation of breach of duty in relation to the resuscitation of the Claimant in the operating theatre. On the contrary, it appears that the Claimant was born prematurely and in a very depressed state due to his mother’s state of health and high dose of diazepam, and was barely showing signs of life following delivery, but was skilfully and effectively resuscitated by Dr Nagpal in short order. I would express the view that, far from being negligent, Dr Nagpal did all that a competent neonatologist, who is experienced in dealing with babies of this nature, could have done to resuscitate the Claimant. Allegations Concerning the Claimant’s Hypothermia[30]The Claimant cannot point to any specific act or omission on the part of Dr Nagpal or any other of the Hospital’s staff as having caused the Claimant’s loss of body temperature by the time he arrived at the SCBU. The allegation of breach of duty is put on the basis that the very fact that the Claimant lost several degrees in temperature between his birth and arrival at the SCBU 20 minutes later necessarily entails that proper steps were not taken to conserve the Claimant’s temperature. Dr Smith gave evidence that he had never come across such a drop in temperature in his extensive experience of dealing with new born babies. He expressed the view that proper drying, wrapping and heating of the baby should rule out such dramatic heat loss in any circumstances, no matter how unwell the baby might be. Dr Smith did not criticise the steps Dr Nagpal described as those which would have been taken to keep the Claimant warm, but effectively alleged that those steps could not have been taken in full or properly if the Claimant did indeed lose so much heat. Mr Redfern suggested that heat may have been lost each time Dr Nagpal reintubated the Claimant if she had failed to keep him covered whilst so doing.[31]However, it was Dr Smith who deployed as part of his expert evidence a paper by Cree & Others published in the British Medical Journal on 3 November 1973 entitled “Diazepam in Labour: its Metabolism and Effect on the Clinical Condition and Thermogenesis of the New Born”. The paper demonstrated that administration of diazepam to mothers in labour (as was the case with the Claimant’s mother) resulted in low APGAR scores at birth, apnoeic spells, hypertonia, reluctance to feed, and an impaired metabolic response to a cold stress. The authors noted that “we have observed that infants becomehypothermic and manifest systems of central nervous system depression after the maternal administration of diazepam during labour”. The details of the study, which related to infants born at either the Royal Sussex County Hospital, Brighton, or King’s College Hospital, London, recorded that the infants were delivered in rooms where the temperature ranged from 23 to 25°C. They were dried and wrapped in either warm towels or silver swaddlers before resuscitation. Notwithstanding those steps and notwithstanding that all the infants were of at least 36 weeks gestation at birth and weighed more than 2,400 grams, several of them suffered from hypothermia, six being recorded as having a temperature of 35°C or less and one being recorded of having a temperature of 34.5°C.[32]The premise of the Cree paper was necessarily that the babies considered in the study were competently treated for heat-loss, but nevertheless suffered from hypothermia attributable to administration of diazepam to their mothers. The study therefore appears to evidence that hypothermia most certainly can occur despite all reasonable precautions being taken, directly disproving the contention that the existence of hypothermia gives rise to an inevitable inference that there has been a breach of duty. Indeed, given that the Claimant was more premature and considerably smaller than the babies in the study, and given that there was undisputed evidence that the operating theatre at the Hospital would have been cold and draughty (about which no complaint is made in these proceedings), there appears to be no basis at all for the complaint made against Dr Nagpal as to the fact that the Claimant suffered from hypothermia. Hypothermia is a well recognised risk of administration of diazepam during late pregnancy. The attempt to blame Dr Nagpal for that effect is, in my judgment, surprising and unfortunate. Ventilator Management Between 04:55 and 14:10[33]Dr Smith criticised the Hospital’s management of the Claimant’s ventilator settings between 04:55 and 14:10 on 9 April on the basis that, particularly after 08:30, the rate and peak pressure was constant, notwithstanding that pCO2 levels rose over that period. Dr Smith considered that the Hospital’s sole focus was on oxygenation, when more regard should have been paid to the Claimant’s hypercabia.[34]However, even before the trial commenced Dr Smith had acknowledged that it was impossible to say that any such changes would have had any impact on the Claimant’s outcome. In giving evidence Dr Smith went so far as to say that, even if CO2 level had been addressed earlier than 14:10 on 9 April, “it probably would not have made a difference”. It was therefore perhaps surprising that the allegation of negligence was maintained throughout the trial, although it did not appear in the Claimant’s written closing submissions.[35]In the end, this allegation of negligence was put forward half-heartedly at best. Although Dr Smith expressed his view as to what changes should have been made to the ventilator settings, he stopped short of saying that the Hospital’s management of the settings fell short of the standards to be expected of a competent hospital in 1982. Further, it is clear that there were certain adjustments to the ventilator settings which do not appear in the surviving records. Other changes may have been recorded in the nursing kardex which has not survived. It is also not entirely clear what standards were applicable in 1982 to the treatment of hypercarbia, Professor Weindling referring to “permissive hypercarbia” being a recognised approach at or about that time.[36]Overall, and particularly given that neither Dr Harris or Professor Weindling shared Dr Smith’s critical viewpoint, I am not satisfied that there is any basis for finding a breach of duty in relation to the hospital’s management of the ventilator settings on 9 April 1982. Alleged Negligent Prioritisation of Treatment from 23:30 to 00:15[37]It was common ground between the parties that the endotracheal tube which Dr Nagpal had inserted on arrival at the SCBU had slipped out of position by 00:15, a conclusion which Dr Nagpal herself came to and recorded in her contemporaneous notes.[38]In his expert report Dr Smith had focused his criticism on the initial intubations in theatre and the intubation on admission to the SCBU, the latter criticism being withdrawn by him in the course of his oral evidence when he acknowledged that the Claimant was successfully intubated on admission to the SCBU, reflected in the adequate oxygenation revealed by the blood gases at 11:00pm (not withstanding the significant acidosis and hypercarbia revealed at the same time).[39]It was only in his oral evidence at the trial that Dr Smith fully articulated what became the central allegation in the case, namely, that Dr Nagpal was negligent in her management of the Claimant between 23:30 and 00:15, although the allegation had been alluded to in an expert’s meeting on 26 January 2014 (see paragraph 14). Dr Smith’s new analysis was as follows:(a) the Claimant’s very serious condition at 00:15, as demonstrated by the blood gas results at that time, combined with his immediate improvement on reintubation, indicated that the Claimant had been suffering from asphyxia in the preceding period.(b) in those circumstances the most likely explanation of the Claimant having “gone off” at about 23:30 was that the tube had slipped out of position at about that time.(c) Dr Smith accepted that the Claimant could not have been without any oxygen at all between 23:30 and 00:15 as he would not have survived in those circumstances. He postulated that the tube, after slipping out of place, must have remained just above the larynx so that, whilst it was not ventilating the Claimant’s lungs properly, some oxygen was being blown in their direction.(d) a competent doctor in Dr Nagpal’s position would have first checked the Claimant’s airway, if necessary reintubating, before taking any other step, drawing support from Dr Fossard’s answer in cross-examination that the first thing to do if a baby “went off” whilst on a ventilator was to check the endotracheal tube.(e) whilst the other steps Dr Nagpal took were entirely proper actions given the Claimant’s symptoms, he inferred that she had failed to take the essential prior step of checking his airway, as this would have revealed that he was not being properly ventilated.[40]However, when cross-examined Dr Smith accepted that it would have been sufficient to check the Claimant’s airways by watching the Claimant’s chest to observe that it was moving in time with the ventilator and to determine that the air was entering both lungs by using a stethoscope. If these checks provide assurance that there was proper ventilation, that would suffice: the experts were agreed that the only way to check the position of a tube was to use an x-ray machine, and unnecessary reintubation was to be avoided where possible.[41]The allegation therefore effectively crystallised into an assertion that, although the Claimant had stopped breathing at about 23:30, Dr Nagpal did not check or otherwise notice that the Claimant’s chest was not moving in time with the ventilator for a period of some 45 minutes, but continued to treat him in ignorance of the fact that he was not being properly ventilated for any of that period. Mr Redfern relied in this regard upon the fact that Dr Nagpal’s notes did not refer to seeing the Claimant’s chest move.[42]In my judgment this central contention fails for two reasons. First, it is dependent upon establishing that, on the balance of probabilities, the tube had slipped out of place by 23:30 and that the Claimant was thereafter receiving a small amount of oxygen from the displaced tube. However, Dr Smith’s theory is in my judgment no more than speculation, it being more likely that the tube was disturbed by Dr Nagpal’s attempts check it for secretions nearer to 00:15. Dr Smith accepted that such displacement could easily have occurred without negligence on the part of the Dr Nagpal. Neither was any case advanced that Dr Nagpal was negligent in the manner in which she dealt with the Claimant if the tube had slipped out much closer to 00:15. I am satisfied that Dr Harris and Professor Weindling are correct in their assessment that the Claimant’s deterioration at 23:30 was explicable by his generally poor and unstable condition and does not imply that he was deprived of oxygen at that time.[43]Second, Dr Nagpal confirmed in giving evidence that she would have been watching the Claimant’s chest on a continual basis whilst attending him and would undoubtedly have noticed had he ceased to breathe in time with the ventilator. She stated that she would not have recorded such a basic observation. Dr Harris, whilst expressing the view that it would be best practice to record seeing the chest move, recognised that it would not be surprising if such a record was not made in the circumstances under consideration.[44]Having seen and heard Dr Nagpal give evidence and having considered her detailed and careful approach to dealing with the potential causes of the Claimant’s deterioration, I consider it almost inconceivable that she would have gone about treating the Claimant for 45 minutes, including transilluminating him, and checking him with a stethoscope and checking the tube for secretions, without noticing that his chest was not moving. Further, as Professor Weindling pointed out, there were nurses in attendance in the SCBU, including one nurse specifically allocated to the Claimant, who would have been observing the Claimant from time to time and would have noticed if he was not breathing.[45]I therefore reject the contention that Dr Nagpal was negligent in the manner in which she treated the Claimant between 23:30 and 00:15.[46]I should add that Dr Harris and Professor Weindling expressed scepticism that the blood gas results at 00:15 could really be from arterial blood, given that such readings (in particular the pH of 6.788) were barely consistent with life. They postulated that the small sample of blood taken from the Claimant could well have been drawn, by mistake, from a nearby vein, to some extent explaining the results. However, Dr Nagpal herself was confident that she would have obtained arterial blood and there is no sensible basis, in my judgment, to reach a contrary conclusion. Whilst that finding does confirm that the Claimant was severely lacking in oxygen at 00:15, it does not affect my conclusions above concerning the timing of the slippage of the tube and Dr Nagpal’s competent and conscientious monitoring of the Claimant’s chest movements and breathing up to that point.

Causation

[47]If I am wrong in my finding concerning the allegation of negligence in relation to the treatment of the Claimant between 23:30 and 00:15, the further question arises as to whether, if that period of illness was due to the Defendant’s negligence, it was causative of the Claimant’s brain injury.[48]Dr Smith’s oral evidence at the trial was that the Claimant’s depressed condition at birth was primarily due to the administration of diazepam to his mother and not due to pre-natal asphyxia or other adverse indications at the time of his birth. He expressed the view that, although the Claimant would almost certainly have developed hyaline membrane disease in any event, but for the episode between 23:30 and 00:15 the Claimant would probably have avoided an IVH and the consequent brain injury.[49]This was again a departure from his report and the views he had expressed in joint expert meetings. On page 16 of his report Dr Smith had referred to the Claimant having “severe asphyxia at the time of his birth” on page 17 he refers to the fact that “perinatal asphyxia was recognised in 1982 as a major potential problem for a pre-term infant and was likely to worsen the prognosis unless promptly treated”. His conclusion at page 22 was that the inadequacies in care he had identified in relation to resuscitation and ventilator management “probably led to a worsening of the child’s condition”. He further stated “the failure to adequately resuscitate the baby initially and to allow the baby to be severely hypothermic will have had an adverse effect on the child’s neonatalcourse through worsening of the severity of the hyaline membrane disease as well adding to the risk of hypoxic ischemic cerebral injury”. In the joint expert’s meetings his view is recorded as follows: “the IVH probably started in the several hours after birth and that the prompt resuscitation and stabilisation of the baby and the avoidance of severe hypothermia would probably have prevented the development of severe IVH”.[50]When cross-examined, Dr Smith accepted that he had initially ascribed the whole of causation to the first hour of treatment and to hypothermia, whereas he now discarded anything before 23:30 as causative. He accepted that although he had been instructed eight years ago, he had only recently identified the 45 minute period after 23:30 as the probable cause of the Claimant’s brain injuries. He nevertheless firmly maintained that he now believed that asphyxia during that period led to bradycardia, so that, on reintubation at 00:15 and the consequent rise in heart rate and blood pressure, a bleed in the germinal matrix commenced, setting in train a sequence of events which led to the Claimant’s brain injury.[51]Again in cross-examination, Dr Smith accepted that given the Claimant’s mother’s fulminating pre-eclampsic toxaemia, his prematurity, the fact that the placenta been described as gritty, friable and infarcted, and that the Claimant had been very flat at birth, gave rise to a substantial possibility that he was hypoxic at birth. He stated that he had thought that was the case until he had seen the levels of diazepam given to his mother. But he accepted that it “might be right” that the Claimant was suffering from hypoxic ischemia at birth. In particular, diazepam would not account for myocardial effects such as a heart rate under 100, indicating that there had been foetal embarrassment.[52]Professor Weindling’s evidence was, in contrast, clear consistent and unequivocal. His opinion was that, given the known factors at the time of the Claimant’s birth, it was likely that he would be severely ill during the subsequent days. He was “set up for hyaline membrane disease”, and for “a stormy neonatal course”. Although he had been effectively resuscitated by ten minutes, he remained unwell and his condition was unstable as demonstrated by the blood gases at 11:00pm. Professor Weindling’s opinion was that it was likely that he would have a brain haemorrhage in any event: it was likely the Claimant would have had an IVH to the extent he had even if not for the 45 minute period. That period would have encouraged its onset, but it would have happened anyway.[53]Dr Colin Ferrie, a consultant paediatric neurologist called by the Defendant, also expressed the view that, given the Claimant’s severe respiratory problems from birth, the short period between 23:30 and 00:15 would not have been determinative of the outcome. Dr Ferrie thought the Claimant would probably have developed a significant IVH in any event.[54]Dr Harris also expressed the view that the Claimant was generally unwell with severe respiratory problems from birth. He accepted that the seeds of the Claimant’s IVH were likely set between 23:30 and 00:15 when he was most ill and had very severe acidosis. But it was his opinion that the IVH was going to occur anyway because of all the other risk factors to which the Claimant was subject. When cross-examined, Dr Harris accepted that the 45 minute period was likely to have contributed to the germinal matrix bleed and the Claimant’s outcome, but in re-examination he confirmed that the chances were over 50% that the Claimant would in any event have developed an IVH.[55]In my judgment it is clear that on the balance of probabilities the Claimant would have suffered an IVH and his brain injury regardless of the 45 minute period of which the Claimant now complains. I am entirely satisfied, despite Dr Smith’s reservations, that it is highly likely the Claimant suffered from hypoxic ischemia prior to birth and that his poor condition at the time of delivery was due in part to the fact that he had suffered foetal embarrassment prior to delivery, clearly demonstrated by the poor condition of the placenta, his low heart rate at birth and his low body weight.[56]Further, the fact that Dr Smith had initially attributed the IVH to events in the first hour of life, but subsequently changed his opinion to focus on a later episode, demonstrates the difficulty of ascribing the Claimant’s outcome to one particular period. The far more likely explanation is that the Claimant was destined from birth to experience a “stormy course” and, in all probability, the brain haemorrhage he did indeed suffer.[57]Mr Redfern argued that, even if the Claimant could not satisfy the “but for” test of causation, he could establish that the contribution of the 45 minute period was more than negligible. In this regard Mr Redfern relied upon Bailey v The Ministry of Defence [2008] EWCA Civ 883 in which

Lord Justice Waller stated:

“In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes inany event, the claimant will have failed to establish that the tortuous cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where the medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.”
[58]However, this is not a case of cumulative agents, where it is impossible to determine whether or not a negligent act caused an injury. In this case the experts have been able to express a clear view as to whether the injury would or would not have occurred in any event, and I have found that, because of the Claimant’s condition at birth, it would have occurred notwithstanding the 45 minute period in question.[59]I accordingly hold that, even if the Defendant had been responsible for the worsening of the Claimant’s condition between 23:30 and 00:15 (contrary to my finding above) I would not have found that such matters caused the Claimant’s ultimate brain injury.

Conclusion

[60]I therefore dismiss the claim. I have considerable sympathy for the Claimant and his parents and commend the devoted care and attention he has received continuously and without stint from them. However, sympathy alone is not enough. It was for the Claimant to establish that his condition was caused by a breach of duty, and this he has failed to do.[61]Subject to any arguments the parties may wish to advance, it would appear to follow that the Defendant is entitled to the costs of the proceedings, to be subject to a detailed assessment if not agreed, but subject to usual provisions concerning the Claimant’s position as a legally aided party. I invite the parties to agree an order and to identify any issues which require further argument.[62]I should add that it is unfortunate that Dr Nagpal and indeed other doctors in charge of the Claimant’s care 32 years ago have had this claim hanging over them for so many years. That is particularly so given that the allegation ultimately deployed against Dr Nagpal at trial was not even identified until shortly before the trial began and, in my judgment, lacked substantial merit. I would express the view that Dr Nagpal and her colleagues deserve credit for the competent and conscientious way in which they treated the Claimant all those years ago, were not responsible for the very sad outcome, and can consider themselves vindicated by this judgment.