Middleton v Ipswich Hospital NHS Trust [2015] EWHC 775 (QB)

Case No HQ13X04518[2015] EWHC 775 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/03/2015
Before
HIS HONOUR JUDGE MCKENNA(Sitting as a Deputy High Court Judge)
Between
FINLAY MIDDLETONClaimantIPSWICH HOSPITAL NHS TRUSTDefendant
Julian Matthews (instructed by Simpson Millar LLP) for ClaimantClaire Toogood (instructed by Kennedys Law LLP) for DefendantHearing Hearing dates: 9-13 March 2015
JudgmentHHJ McKenna :Introduction
[1]This is a claim for damages for clinical negligence brought on behalf of Finlay Middleton by his father and litigation friend, Gavin Middleton, in respect of a significant brachial plexus injury to Finlay’s right upper limb as a result of the circumstances of his birth on 1 February 2002 at the Ipswich Hospital for which the Defendant, the Ipswich Hospital NHS Trust, is responsible. In particular, the delivery was complicated by shoulder dystocia as a result of which Finlay suffered damage to the nerves emanating from the spinal cord in the neck at the level of the shoulder as a result of force being applied to those nerves. The resulting injury is also known as “Erb’s Palsy”.[2]Brachial plexus injuries are one of the most important fetal complications of shoulder dystocia. Most cases resolve without permanent disability with fewer than 10 per cent resulting in permanent brachial plexus dysfunction.[3]Shoulder dystocia is defined in the December 2005 Guidelines of the Royal College of Obstetricians and Gynaecologists (“RCOG”) as a delivery that requires additional obstetric manoeuvres to release the shoulders after gentle downward traction has failed. Shoulder dystocia occurs when either the anterior or, less commonly, the posterior fetal shoulder impacts on the maternal symphysis or sacral promontory. It is common ground that that definition reflects the thinking in 2002.[4]Finlay is the third son of Jo-Anne and Gavin Middleton, his elder brothers being Jak, born on 15 January 1995, and Dan, born on 19 August 1996.[5]Jak was born at 38 weeks gestation and the labour was long and painful with delivery by means of ventouse vacuum extraction and, at birth, he weighed 3720gms.[6]Dan was born at 40 weeks gestation, after a rapid and, insofar as Mrs Middleton was concerned, an apparently uneventful labour. In fact, however, the delivery was recorded as having been complicated by “moderate degree of shoulder dystocia”. Dan weighed 3920gms.[7]Whilst the overall effects of the injury on Finlay are the subject of broad agreement, there is disagreement in relation, in particular, to his future needs and the quantification of those needs. Liability causation and quantum are all in issue.[8]In broad terms, Finlay’s case can be divided into two parts as follows: i) It is alleged that Finlay’s mother should have been advised, as part of her antenatal care, of the risk of shoulder dystocia and told of the possibility of having a caesarean section instead of giving birth vaginally. If she had been warned of the risk, it is said she would have opted for a caesarean section and Finlay would have been born in that manner, in which case, it is common ground, he would not have suffered the brachial plexus injury. ii) Had Finlay’s mother in fact opted for a vaginal birth, it would have only been on the basis that there would have been an intervention at an early stage if circumstances changed and, in the event, when the progress of labour became delayed, caesarean section ought to have been considered and Mrs Middleton would have opted for a caesarean section and, in the further alternative, by 1815hrs at the latest on 1 February 2002 a caesarean section was mandated.[9]It is admitted on behalf of the Defendant that there ought to have been a discussion with Finlay’s mother about mode of delivery prior to her labour with Finlay as a result of the occurrence of shoulder dystocia in the delivery of Dan and that this did not occur. However, it is denied that, had such a discussion taken place, Finlay would have been delivered by caesarean section; rather it is said that the labour and delivery would have proceeded as they did and that Finlay would have suffered the injury in any event since Mrs Middleton would have been advised to proceed with a vaginal delivery, with the reassurance that she would be under consultant care and senior staff would have been present or nearby at delivery and she would have accepted that advice.[10]On Finlay’s alternative case, it is said that even if there had been a concern raised over the potential size of the baby, the advice would still have been to continue with a vaginal delivery and, on the balance of probabilities, that advice would have been accepted. Moreover, the care during labour was in accordance with a reasonably competent body of opinion.

Evidence

[11]Finlay relies upon the lay evidence of his mother and father whilst the Defendant relies upon the lay evidence of the clinicians involved in Finlay’s care. They are midwives Lynne Lacey, Cherry Quinnell and Janet Bull together with Mr Raef Faris, who at the time was an obstetric registrar. Mr Faris did not in fact ever see Mrs Middleton during her labour with Finlay but was consulted from time to time. Unfortunately the Court did not hear from the obstetrician who was directly involved in Mrs Middleton’s labour and the subsequent delivery of Finlay. That obstetrician, Dr Christo, emigrated to India shortly after the events with which this Court is concerned.[12]In respect of liability and causation, Finlay relies on the expert evidence of Mr Jarvis, Emeritus Consultant in Obstetrics and Gynaecology, whose special interest was in fact urinary gynaecology and Carole Bates, a midwife, together with their respective contributions to joint statements of experts whilst the Defendant relies upon reports from Mr Tuffnell, a consultant gynaecologist and obstetrician at Bradford Teaching Hospital NHS Foundation Trust since 1994 and Deputy Medical Director since 2007 and a peer reviewer of the RCOG’s Guidelines for Shoulder Dystocia in 2012 and Tracey Reeves, Midwife, respectively and their respective contributions to joint statements of experts. A significant quantity of literature has also been produced by the experts.[13]So far as Finlay’s condition and prognosis is concerned, the orthopaedic evidence is largely agreed and has been read. Finlay’s condition has had educational and psychological implications as set out in reports of a joint single expert in educational psychology, Mr Albert Reid, and the reports of psychologists and their joint statement. There are some differences between the psychological experts, Dr Ford for Finlay and Dr Newns for the Defendant, but those differences are not significant and again their evidence has been read.[14]There are also differences between the parties’ experts in relation to Finlay’s physiotherapy needs but they were not significant enough to justify their attendance at court. Their reports, therefore, Wendy Murphy for Finlay and Sandra Holt for the Defendant, have also been read as have the reports of Julia Ho, an occupational therapist instructed on Finlay’s behalf, and Jacqueline Green instructed on behalf of the Defendant.[15]The parties’ respective positions in respect of the valuation of Finlay’s claim were set out in the updated schedule of loss, dated 11 November 2014, and the counter schedule dated 19 December 2014, although there was some agreement on a number of heads during the course of the trial which has shortened that aspect of the trial. The principal areas of difference are: future handicap on the labour market; future assistance; future travel costs; past travel costs and care and assistance.

The Law

[16]There is little dispute between the parties as to the relevant law. In most situations the issue as to whether a doctor or other medical professional has been negligent is determined by applying the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. In directing the jury in that case, McNair J said as follows at page 587:
“I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
[17]In Bolitho v City and Hackney Health Authority [1998] AC 232, the House of Lords emphasised that McNair J had said that the practice in question had to be accepted as proper by a responsible body of medical men. Elsewhere in his judgment he had said that it must be regarded as acceptable by a reasonable body of opinion. Lord Browne-Wilkinson, who gave the leading speech, commented as follows at page 241:
“The use of these adjectives – responsible, reasonable and acceptable – all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or acceptable, will need to be satisfied that, informing their views, the experts have directed their minds to the question of comparative risks and benefits and reached a defensible conclusion on that matter.”
[18]Later, at page 243, he continued:
“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and the benefits of adopting particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinion. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”
[19]In Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 CA, which concerned the adequacy of advice given to a mother who shortly afterwards gave birth to a stillborn baby, Lord Woolf MR said as follows:
“In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.”
[20]I was also referred to the cases of C v North Cumbria University Hospitals NHS Trust [2014] Med LR 189, where the court set out the principles and considerations to be applied to the assessment of expert evidence in a case such as the present, Sardar v NHS Commissioning Board [2014] Med LR 12, Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285, Jones v North West Strategic Health Authority [2010] EWHC 178, and finally Montgomery v Lanarkshire Health Board [2015] UK SC 11 handed down during the course of the trial the latter three of which deal with issues of causation where, as here, the proper advice as to risk was not given and, in particular, the challenges facing a court in the light of evidence as to what a patient would have done had the proper advice been given in circumstances where the outcome was adverse.

Background

[21]Finlay’s mother, Mrs Jo-Anne Middleton, was born on 8 October 1964. She and her husband Gavin are both teachers and, in fact, Mr Middleton is an assistant head teacher. As I have already recorded, they have two other older children, Jak and Dan.[22]Mrs Middleton’s labour with Jak was very long and painful and after his birth Jak looked battered by the experience. Mr Middleton described it as very traumatic and indeed rather graphically as being very agricultural.[23]Dan’s birth, by contrast, followed a very rapid labour and Mrs Middleton was unaware that there had been any difficulty with his delivery. The delivery was recorded by midwife Quinnell as having been complicated by a “moderate degree of shoulder dystocia”. Mrs Middleton was unaware that there had been this difficulty with delivery. It is admitted that she ought to have been told of it and, plainly, had she been, she, in turn, would have informed the booking midwife of it at the time of her next pregnancy. It is admitted that this would have altered what would have happened during the following pregnancy since it is common ground that the risk factors for shoulder dystocia include shoulder dystocia in a previous pregnancy.[24]At the material time, shoulder dystocia was commonly referred to as being either mild, moderate or severe although it is common ground that at the material time there was no commonly accepted definition of any of these terms. In her evidence, midwife Quinnell, whilst accepting that she had no recollection at all of Finlay’s delivery, stated that at that time what she meant by moderate shoulder dystocia could just have been no more than that the shoulders were a tight fit. Certainly, as appears from the Notes which she made, there was no mention of any intervention such as the McRoberts Manoeuvre or suprapubic pressure having been required and it was, she said, her usual practice, to write in the Notes if such manoeuvres had been necessary. Moreover, it is clear from the Notes that Mrs Middleton was pushing in a standing position and there was no suggestion in the Notes that that changed at any stage prior to Dan’s birth.[25]Mrs Middleton became pregnant with Finlay in mid 2001. Although her booking appointment occurred at the same hospital, as I have previously identified, the previous moderate shoulder dystocia was not picked up either from Mrs Middleton as she had not been told about it, or from the Notes and therefore no record of that complication was made as part of the booking process. As a result, Mrs Middleton was transferred from consultant to midwifery care which, it is common ground, would not have happened had the previous shoulder dystocia been noted.[26]There would also have been an early consultation which should have involved a discussion with Mrs Middleton and in which she would have been made aware of the increased risk of the recurrence of shoulder dystocia in the subsequent delivery and of the other risk factors for shoulder dystocia which include the baby being large. She ought to have been advised of the potential risks to her baby from the occurrence of shoulder dystocia, including obstetric brachial plexus injury and, Finlay contends, the small risks of asphyxia, brain damage and death. She would have been told there would be no reason why she should not deliver vaginally and that the risks would depend on factors such as the size of the baby and that monitoring would be in place and that an alternative option would be delivery by caesarean section and the risks of that procedure should have been explained with the ultimate choice being that of Mrs Middleton and the clinical team, taking due note of her wishes.

The early stages of pregnancy

[27]Mr Jarvis, whilst conceding that it was not mandatory to advise Mrs Middleton to undergo a caesarean section, expressed the view that there should have been a discussion identifying the pros and cons. He accepted that Finlay’s mother would have been informed that the majority of such babies would deliver safely by vaginal delivery. Mr Tuffnell suggested that Finlay’s mother should have been told that she was more likely to have another shoulder dystocia and that she might need manoeuvres to deal with it, should it happen but she would have been reassured that a vaginal birth was both reasonable and appropriate. Mr Faris, in his evidence, suggested that that would have been the approach of the defendant at the material time.[28]In her witness statement, Mrs Middleton expressed the view that what would have played on her mind had she known the full circumstances surrounding Dan’s birth and the various risk factors to which I have referred, was what she described as the horrible time that she had had with Jak’s delivery. She would, she says, have wanted to avoid another delivery like that at all cost and would have preferred for the risks of any injury to be to her rather than to her baby and hence she would have chosen caesarean section as the mode of delivery had she been in possession of the full facts. She was aware of family members and others who had had caesarean sections without any apparent problems. Moreover, what would also have played on her mind was that her own sister had lost a child at five months of pregnancy. She would not have been concerned at the prospect of scarring and indeed had subsequently opted for a “tummy tuck” following the delivery of Finlay.[29]In her oral evidence, Mrs Middleton said that she would have discussed the whole matter with her husband and they would have decided that she should opt for a caesarean section. She would not have wanted to bring a child into the world with a disability and she would have been particularly concerned by the use of the word “palsy”. Later in the course of her evidence she went on to say that had she received the relevant information at an early stage in her pregnancy she might well have asked for a review later on in the pregnancy. In effect she would have sought to delay making any final decision as to the mode of delivery.[30]To my mind, it would have been wholly consistent with Mr and Mrs Middleton’s careful and considered approach for them not to have made any definite decision at this early stage so far as mode of delivery was concerned and I conclude, on the balance of probabilities, that Mrs Middleton would have gone away and researched matters and wanted to see how the pregnancy progressed but, importantly, would have been fully aware of the relevance of fetal size and the reason for its relevance.

Progress of Pregnancy

[31]The pregnancy progressed normally until December 2001/January 2002. At that stage Mrs Middleton was feeling that she was very large; “absolutely huge” in her words, so much so in fact that she had measured her waist at 121cms and taken a photograph of herself.[32]At an antenatal clinic on 9 January 2002, at 37 plus weeks gestation, her symphyseal-fundal height (“SFH”) was measured to be 40cms. This was 3cms greater than normal for the gestational age. The SFH measurements prior to Christmas 2001 had all matched the gestation in weeks. Although Mrs Middleton expressed her concern to the midwives about the size of her baby she was reassured at that stage.[33]On 1 February 2002 Mrs Middleton was admitted to Brook Ward with a history of contractions from 0300hrs that morning and showed at 0415hrs. She was contracting 1:5. The baby was active and a TENS machine was in situ for pain relief. Midwife Lacey carried out maternal observations which showed a temperature of 35.8°C, pulse of 92 and blood pressure of 100/65. There were traces of protein in her urine. Midwife Lacey carried out an examination and on palpation felt that the baby was at term and that it might well be a large baby. The lie was longitudinal and the presentation was cephalic with 2/5th palpable. The position was noted as LOA and the fetal heart rate was heard at 150 beats per minute.[34]Midwife Lacey carried out a further assessment and a vaginal examination at 0845hrs, at which point the cervix was 4cms dilated, effaced, thinning and central and the presenting part was -2 to the ischial spine. She noted the membranes were bulging and left intact and no cord was felt. The fetal heart rate was at 154 beats per minute. She discussed the birth plan with Mrs Middleton.[35]Midwife Lacey continued to monitor the fetal heart rate at regular intervals and an epidural was discussed with Mrs Middleton. She had a bath at 1010hrs and a plan was made to reassess at 1145hrs.[36]A further vaginal examination was undertaken at 1200hrs to assess progress and it was noted that the cervix was central and effaced with Mrs Middleton being 5 centimetres dilated. Midwife Lacey carried out an artificial rupture of membranes, the fetal heart rate was noted at 148 beats per minute and meconium stained liquor was identified as a result of which midwife Lacey contacted Mr Faris who advised transference to consultant-led care.[37]At 1215hrs a CTG was applied and at 1225hrs Mr Faris was informed in view of previous “moderate shoulder dystocia”, a fact which midwife Lacey surmised she had picked up from reading the Notes of the previous delivery of Dan.[38]At this stage the CTG was showing decelerations with contractions down to 85 beats per minute but with a good recovery of the baseline to 145 beats per minute.[39]A further vaginal examination was carried out at 1230hrs and the cervix was found to be 7 centimetres dilated.[40]By 1255hrs Mrs Middleton was becoming distressed and wanted an epidural so midwife Lacey discussed the matter with Dr Faris who suggested that a Senior House Officer should review, which happened at 1305hrs and an epidural was arranged which was sited by an anaesthetist at 1345hrs at the first attempt. By 1400hrs Mrs Middleton was comfortable and the CTG which had been removed whilst the epidural was being sited had been reapplied. There was a further review by the Senior House Officer at 1420hrs who noted that the CTG was very reactive post epidural and had a baseline of 135 beats per minute with normal variability and accelerations. The plan was for a further review in one hour.[41]There was a review at 1530hrs where the CTG was noted as remaining reactive, VE: Caput, most probably OA. PP at spines, 9 centimetres dilated and the plan was to continue and re-examine in one hour.[42]At 1625hrs Mrs Middleton requested an epidural top-up which the Registrar agreed to and at 1650hrs a further vaginal examination was carried out to assess the position and no cervix was felt. Full dilatation was confirmed and the presenting part was at the level of ischial spines with caput +. Meconium stained liquor was also noted and the Registrar was asked to review.[43]The Registrar, Dr Christo, attended at 1715hrs and made an entry in the notes as follows:
“Large baby O/e abdominally vertex 1 / 5th palpable. VE – lower segment seems stretched. Cx fully dilated, caput +, no moulding. Vertex left occipito anterior at O station. Meconium tinged liquor. Plan – allow head to descend prior to pushing – 30 minutes to one hour.”
[44]At this stage midwifery care was handed over to midwife Bull and midwife Lacey had no further involvement.[45]Midwife Bull carried out her own assessment of Mrs Middleton at 1745hrs and noted that the fetal heart rate was 142 beats per minute and that she was contracting 1:2. Meconium stained liquor was draining and Mrs Middleton was noted as being comfortable and resting. A further epidural top-up was given at 1800hrs.[46]At 1815hrs midwife Bull noted that the CTG had a baseline of 140 beats per minute with a good beat to beat variability. Active pushing commenced at 1830hrs and the midwife continued to monitor the fetal heart rate regularly.[47]By 1905hrs the vertex was just visible when the labia was parted. Shortly after this midwife Bull contacted Dr Christo who suggested that the mother try pushing in the lithotomy position and that she would come and review. That review took place at 1935hrs and Dr Christo made an entry in the Notes as follows:
“CTG satisfactory. 2nd stage 3 hours Pushing for one hour. VE – vertex LOA. Caput ++. Vertex at +1 station. No significant moulding. Meconium tinged liquor. Pelvis seems gynaecoid. For instrumental delivery.”
[48]Dr Christo advised that the mother should be prepared for an instrumental delivery and midwife Bull noted at 1945hrs that preparations were made for that and senior midwife Chitty was called at 2008hrs to assist and the paediatrician was called and asked to attend at 1945hrs. Dr Christo then carried out a ventouse delivery. There was difficulty with the shoulders. The McRoberts Manoeuvre was applied and a further midwife was called to assist. Suprapubic pressure was applied and the legs were hyper-flexed. An episiotomy was performed by Dr Christo who then delivered Finlay at 2012hrs.

What assessments and discussions ought to have occurred in the latter stages of pregnancy?

[49]It was the evidence of Mr Jarvis that the combination of the previous history of a baby with shoulder dystocia and the finding of a uterus that was larger than gestational age, coupled with Mrs Middleton’s own view that she thought she was bigger than expected, should have led to an ultrasound assessment of fetal weight during the last few weeks of pregnancy, even though he conceded that ultrasound was not an accurate predictor of a baby’s weight. This should then have been followed by a discussion with a senior obstetrician. Mrs Bates expressed the view that a baby that feels large on palpation and a fundal height that exceeded gestational age should have prompted the midwife to refer Mrs Middleton to an obstetrician, regardless of whether or not she knew about the previous shoulder dystocia. Moreover, had they been aware of the previous shoulder dystocia as they should have been, the staff should have taken more notice of what she described as a sudden discrepancy in fetal size.[50]Tracey Reeves agreed that if the baby was thought to be larger and there was a confirmed history of shoulder dystocia this should have been an indication for an obstetric review.[51]Mr Tuffnell, for his part, did not accept that the increased fundal height measurements would have mandated any further investigation since they were within range, although he did concede that there would have been those who would have advised that an ultrasound scan be undertaken, particularly if the mother was anxious to have one and it might reassure her. In his view the ultrasound could not be relied on as a predictor of weight particularly so far as a large baby was concerned since it tended to estimate weight towards the mean, that is to say to underestimate it, and ultrasound would not have influenced his decision-making on the issue of the likely size of a baby.[52]There was much criticism of Mr Jarvis’s evidence by counsel for the Defendant in her closing argument, much of it, to my mind, justified. That criticism included the fact that he had retired from clinical practice as long ago as 2002 although it must, of course, be remembered, that the events with which this court is concerned, took place in 2002, and his lack of any particular specialty in shoulder dystocia, both of which criticisms were contrasted with justification with the position so far as Mr Tuffnell was concerned. More significantly, his emphasis on fundal height measurements crossing centiles in early January 2002, which he had plotted on a chart, but which he was forced to concede was not common practice at the time and was not the practice at the Defendant’s hospital was, in my judgment, misplaced and his assertion that an ultrasound scan would have shown that Finlay’s predicted birth weight would have been 5 Kg + or – 10% seems to me to display a misunderstanding of the paper on which he relied which demonstrated that a single estimation would have been given as counsel for the Defendant submitted in her closing argument. It is also a concern to me that he felt able to assert that a caesarean section was mandated by 18.15hrs at the latest and his apparent change of opinion as to whether pushing should have commenced. Neither opinions inspired confidence. Mr Tuffnell, by contrast, was an experienced practicing obstetrician whose views as to the efficacy or otherwise of an ultrasound scan for predicting birth weight carried real conviction as did his views as to the management of the second stage of labour to which I refer, albeit briefly, below.[53]For my part, I prefer the evidence of Mr Tuffnell to that of Mr Jarvis on this aspect and conclude on the balance of probabilities that ultrasound scanning was not mandated. That said, as I have recorded, Mr Tuffnell did accept that there ought to have been a discussion between Mrs Middleton and an obstetrician about the issue of risk and the management of the pregnancy in the context of the previous shoulder dystocia.[54]Mrs Middleton’s evidence was that had she known all the material facts she would have recognised the significance of the potential size of the baby and discussed it with the obstetrician. She would have voiced her concern and would have pushed for an ultrasound scan. She would have wanted as much information as possible and she knew that a scan was non-invasive and would not pose a risk to her or, more particularly, to the unborn baby.[55]What is said on behalf of the Defendant is that the fundal height measurement was within the normal range, contained a subjective element and in any event one or other of the measurements taken on 5 and 9 January 2002 must have been incorrect. Moreover, Mrs Middleton did in fact see an obstetrician on 10 January, albeit for itchiness rather than on account of any concern about the baby’s size and there is no evidence that size was raised as an issue with the obstetrician, Mrs Middleton’s evidence being that she could not recall any discussion about size on that occasion.[56]In the light of Mr Tuffnell’s evidence, even if it had been discussed, it was said that Mrs Middleton would have been reassured that the measurements were within normal limits and the fact that she was not obese, or diabetic, coupled with Jak’s and Dan’s birth weights meant that she was at a lower risk of a macrosomic baby and that whatever she may now say she would have done, on the balance of probabilities, she would not have requested an ultrasound scan, her present belief to the contrary being coloured by hindsight.[57]In my judgment, Mrs Middleton, had she had the information she should have had, would plainly have wanted to understand what risks there were and bearing in mind that she was concerned enough about her size (without the background knowledge of why that was significant in the context of shoulder dystocia) both to have measured herself and to have taken a photograph because she suspected the baby she was carrying was even larger than either Jak or Dan, she would have pressed for an ultrasound scan and would not simply have accepted the reassurance which it is said would have been offered. In this regard, it is to be noted that Mr Tuffnell, even though he expressed doubts about the accuracy of ultrasound scanning, conceded that it was easy to arrange and was non-invasive and he himself, if a mother had pushed for it, might well have agreed to one being undertaken if only for reasons of her reassurance. Moreover it is plain from the letter from the Defendant dated 12 March 2003 in response to Mrs Middleton’s letter of complaint of 30 December 2002 that the Defendant’s hospital did make use of such scans at the time. On the balance of probabilities, therefore, I conclude that, in all the circumstances of this case, an ultrasound scan would have been requested and would have been undertaken.[58]Had such an ultrasound scan been undertaken, Mr Tuffnell agreed that on the balance of probabilities the result would have been likely to have shown an estimated weight at term of between 4.5 and 5.5 kilograms and that on the balance of probabilities the scan would produce a result which was plus or minus 10 percent of the actual weight. On any view therefore the predicted weight would suggest that the baby was likely to be substantially larger than either Jak or Dan.[59]It is also to be remembered that at a weight potentially over 4.5 kilograms the risk that Mrs Middleton might require an instrumental delivery increased and it is common ground that instrumental delivery is in itself an additional risk factor both for shoulder dystocia and the risk of brachial plexus injury and the Defendant, in its letter of 12 March 2003 to which I have already referred, made it clear that if the possibility of a fetal weight of over 5000 grams had been indicated, the mode of delivery including caesarean section would have been appropriately discussed with Mrs Middleton.[60]I have already touched on Mrs Middleton’s evidence about how she would have viewed matters had she known the full facts and of her concern to avoid another delivery like Jak’s at all costs and her preference for any risk of injury to be to her rather than to her baby, a perfectly understandable maternal reaction. She says she would also have been heavily influenced by the use of the term “palsy”.[61]She was adamant that a combination of her experience of problems with Jak’s delivery, her knowledge that there had been difficulties with Dan’s shoulder and the fact that the baby was likely to be even bigger than Jak or Dan had been, the increased likelihood of having a Jak-type delivery and that the risk of potentially serious injury, would cumulatively have led her to opt for a caesarean section rather than a vaginal birth. She would not have been swayed by any suggestion that the actual risks were low since she was naturally risk-averse which was evidenced by her decision to opt for a hospital birth with Finlay notwithstanding the existence of a geographically closer birthing unit. She simply would not want to have run even a comparatively small risk of having a disabled child. She was not herself particularly mathematical and for her the key thing would have been the identification of the risk not its quantification.[62]On behalf of the Defendant, it was submitted that Mrs Middleton’s evidence was necessarily, but understandably, heavily influenced by her knowledge of how events transpired and although palpably an honest witness, she had very understandably been unable to put out of her mind the knowledge of what in fact had happened and what she had learnt subsequently. Moreover, her evidence did not disclose any objective reasons why she would have opted for a caesarean section in circumstances where a majority of women would not. On the contrary, it was said that her instinct following what was, on any view, a traumatic experience with Jak’s delivery was to aim for as natural a birth as possible with Dan and that given her good experience with Dan’s birth, she would reasonably have hoped a third labour would have an equally positive outcome.[63]Moreover, in cross-examination, and in response to a question about whether she would have gone against the advice of an obstetrician that a caesarean section would not have been recommended even if the baby was suspected to be larger than her previous babies, she replied that she did not know what she would have done if she had had all the facts and when asked whether there would have been any reason to reject that advice at that stage she replied that she would hope the medical advice would have given both sides of the argument weighing up the pros and the cons of both ventouse and caesarean section. (It should be noted that this passage of cross-examination occurred when Mrs Middleton had been asked a series of questions about what had been happening during the second stage of labour following the review by Dr Christo at 1715hrs and culminating in the decision to proceed with an instrumental delivery and therefore at a time when the risks of caesarean section would have been greater than if such a course of action had been embarked upon before labour had commenced).[64]I should begin this section of my judgment by reiterating that I find both Mr and Mrs Middleton to be patently honest witnesses doing their best to assist the Court in difficult circumstances. They were in my judgment patently caring parents and their obviously careful approach to life in general was mirrored in their approach to giving evidence, which was both thoughtful and sincere.[65]I must however be cautious about placing too much reliance on Mrs Middleton’s evidence that she would have opted for a caesarean section. As counsel for the Defendant submitted, she now knows that the alternative of a vaginal birth was in fact what led to Finlay being significantly disabled and it is unrealistic to expect her to be able to set aside that knowledge. What I must decide is whether it is more likely than not that she would have chosen to have a caesarean section without the knowledge of what was to come whatever she now says.[66]Having carefully considered all the evidence I have come to the conclusion that Mrs Middleton would in fact have opted for a caesarean section even if the advice from the obstetrician would have been to proceed with a vaginal birth and I do so notwithstanding the specific evidence of Mrs Middleton referred to above on which counsel for the Defendant, not surprisingly, placed considerable reliance in her closing argument. In coming to that conclusion, I have taken into account the totality of the evidence and my assessment of both Mr and Mrs Middleton as, as was submitted on Finlay’s behalf, very careful and thoughtful parents who have made considerable sacrifices for their children’s sake. They are plainly people who put their own children’s interests very much ahead of their own. By way of example only, Mr Middleton in particular has travelled all over the country to support and facilitate Finlay’s swimming activities and both parents have made it clear that they would be prepared to move from their current home in Suffolk to Manchester if necessary to further Finlay’s swimming ambitions, notwithstanding that both are in full-time employment in Suffolk. Moreover, I have no doubt that Mrs Middleton would not be deterred by any personal inconvenience such as not being able to drive for a period following a caesarean section.[67]I was also particularly impressed by Mrs Middleton’s evidence as to her approach to risk and in particular that what was key for her was the identification rather than the quantification of risk. That was evidence which very much had the ring of truth about it as did Mr Middleton’s evidence as to the traumatic nature of both of the earlier deliveries and his distress that his wife had been injured during Dan’s delivery. In my judgment, he would have been likely to have encouraged and/or supported a decision by Mrs Middleton to opt for caesarean section had the full facts been known prospectively.[68]Mrs Middleton plainly wanted to avoid another traumatic birth like Jak’s at any cost. Had she known that Dan’s birth, which she thought had gone so well, had in fact been complicated by shoulder dystocia and that there was a risk of the same thing happening in the case of Finlay with the risk being increased as a result of his potential size which might have led to another instrumental birth, on the balance of probabilities, she would have opted for caesarean section since, in my judgment, her aversion to another traumatic Jak-like birth would clearly have weighed more heavily than her desire for a natural birth and her actual elation at what she thought had been a very successful natural birth with Dan would have been overshadowed by the subsequently acquired knowledge that what had been thought to have been an uneventful birth had in fact not been so uneventful and the knowledge that Dan could have been permanently injured as a result of the shoulder dystocia.[69]It was of course the evidence of Mr Tuffnell that he was able to persuade most of his patients not to elect for caesarean sections in such cases and that therefore his experience was that most patients did not. I do not doubt Mr Tuffnell’s powers of persuasion. However, it would appear from the Defendant’s letter dated 12 March 2003, to which I have already referred on a couple of occasions, that the Defendant’s attitude would not have been quite so negative so far as electing for caesarean section is concerned in such cases and crucially in any event, what this court is concerned with is what these particular parents would have done in the particular circumstances of this case.[70]On the balance of probabilities therefore I conclude that Mrs Middleton, in discussions with the obstetrician following the ultrasound scan, would not have been influenced by statistics but would have put the wellbeing of her baby ahead of herself and elected, and if necessary pushed, for caesarean section rather than run any risk of repetition of a Jak-type birth and that that would have been the mode of Finlay’s birth. It follows in my judgment therefore that Finlay succeeds on the issue of causation.[71]In the circumstances there is no need for me to go on to consider the Claimant’s alternative case based on criticisms made by Mrs Bates of Midwife Bull in allowing Mrs Middleton to push and by Mr Jarvis that by 1815hrs at the latest caesarean section was mandated. Suffice to say that I entirely reject both criticisms and accept the substance of Mr Tuffnell’s evidence that the management of labour in this case was entirely reasonable. In particular it was reasonable to allow time for the head to descend before pushing commenced in the hope that this would lead to delivery, bearing in mind that the CTG was reassuring and it cannot be said that Mr Tuffnell’s view is illogical. On the contrary, to my mind, it plainly represents the view of a reasonable body of competent obstetricians and Mr Jarvis’s opinion to the contrary was, at best, a value judgment in respect of which there is plainly a range of views. It was equally reasonable for Midwife Bull to have allowed Mrs Middleton to begin pushing without first reverting to the Registrar. Quantum Finlay’s Injuries

Quantum

[72]Finlay’s delivery was complicated by severe shoulder dystocia. As I have recorded, various manoeuvres were required and delivery was described as being extremely difficult. Moreover, it was noted that Mrs Middleton was to give birth by caesarean section in any future deliveries.[73]On delivery Finlay was macrosomic and weighed 5070gms and had Apgar scores (a measure of fetal well-being out of 10) of 0 at 1 minute, 5 at 5 minutes and 7 and 10 minutes. He required resuscitation, cardiac massage and intubation. There was meconium at, or below, the vocal cords. He was transferred to the special care baby unit where it was noted “shoulder dystocia +++, meconium delivery, large for dates”. He was found to have bilateral cephalohaematoma (swelling to the head) and it was noted from the outset that his right arm appeared flaccid and with no spontaneous movement in the right arm or hand representing a right brachial plexus palsy. He remained in hospital for six days and required a splint for his right arm. Although there was some tone in the long finger flexors and some scapula movement there were no other signs of recovery.[74]Finlay was seen by Professor Birch on 17 April 2002 and it was noted that he had a serious injury to his right brachial praxis of grade 4 with Horner’s Syndrome (4 representing the highest level of severity). Serial nerve conduction studies showed persistent disruption in the C5, C6, C8 and T1 nerve roots with some limited reintervation in the C7 nerve root. Although there was some functional recovery thereafter, there remained a problem with finger extension and a significant loss of shoulder function and further splinting of his right arm was required.[75]On 6 August 2003, at age 1½, he underwent anterior muscle release surgery in his right shoulder, remaining in a plaster cast jacket until October 2003 and he required intensive physiotherapy.[76]In 2005, at age 4, he developed co-contraction in the right arm and a failure of recovery within the C7 nerve route. As a consequence, on 10 December 2006 he underwent a pronation osteotomy (that is to say a surgical cutting and resetting of the bones to rotate the arm and hand into a more useable position) with subsequent immobilisation in plaster and physiotherapy. There was further revision osteotomy surgery in October 2009 and surgery to remove a metal plate which had fractured in June 2010. Finlay has residual scarring: 12.5cms long in the deltopectoral groove extending to his upper arm and 14cms long on his right forearm.[77]In short, as appears from the Joint Statement of the orthopaedic experts, Finlay has been left with a right arm that is significantly smaller and shorter, with reduction in size of the shoulder girdle and shortening and reduction of muscle bulk in the forearm. His right arm is about 20 per cent smaller than his left and the fingers are also significantly smaller. As he grows the relative deformity will increase proportionately. At present, the difference in arm length is about 12 per cent and this will persist.[78]In terms of function, the ranges of motion of the right upper limb are significantly reduced: flexion and extension being 71° on the right compared to 250° on the left. Shoulder rotation is significantly limited and there is no active wrist flexion. Grip strength is significantly reduced, being about one third that on the left.[79]The orthopaedic experts agree that there is so little movement in the right shoulder and such poor grip in the right hand that essentially the right arm acts as no more than an assist device, although Mr Giddins feels that the right arm has some use such as in supporting paper “and so is a little better than an amputee”. However, the experts agree that Finlay will be permanently and severely handicapped in relation to activities around the house, for DIY and on the open labour market. They agree that he is ineligible for employment in the armed services, police or paramedical services and will work essentially in a one-handed fashion.[80]As a result of the injury, Finlay is plainly vulnerable to significant difficulties in daily life should he injure his left arm or it becomes compromised in any way through overuse. As a consequence of his injury, his finger movement and dexterity are very limited and he struggles with holding implements such as a knife, opening drawers, managing buttons, zips shoelaces, belts and the like. He has difficulties with balance, is prone to fall and cannot save himself using his right arm if he does. He still requires some help with dressing and drying and cannot tie up laces, button-up tight trousers or put on his swimming cap.[81]Finlay is very keen on sport and his parents have shown great dedication in trying to find activities at which he excels. His principal sport is now swimming. He is unable to use his right arm at all and is categorised as having an S8 disability. He has competed and been picked up by the Paralympics British National Talent Squad and has been swimming in national events since 2012. He is now in the top six in the country. It is common ground that this has helped his confidence.[82]Finlay has been assessed by a jointly instructed educational psychologist, Mr Albert Reid, whose view was that, but for his injury, Finlay would probably have been right dominant and would have been right-handed. He feels that Finlay has deficits which mean that although he is likely to go on to get GCSEs at average levels, thereafter he would be likely to go on to some form of vocational study. The fact that Finlay is likely to be limited academically does mean that he is unlikely to be able, in terms of employment in the future, to compensate for his physical disability by seeking a career that requires higher intellectual and lower physical skills.[83]In terms of psychological aspects, Dr Ford’s view was that Finlay’s vulnerability was mild to moderate and on the balance of probabilities he was at risk of developing an adjustment disorder regarding appearance issues in the future. Dr Newns for her part maintained that, whilst there was a strong likelihood that he would require psychological support, she did not feel it was possible to predict whether he was likely to have symptoms of a clinically significant degree in the future. She did agree that he was at risk of developing psychological problems. Both experts agreed that Finlay was self-conscious about his scar.

General Damages

[84]The Judicial Studies Board Guidelines give a range of £77,715 to £105,875 for severe arm injuries which fall short of amputation but which are extremely serious and leave the injured person little better off than if the arm had been lost; for example, a serious brachial plexus injury.[85]It is contended on behalf of Finlay that this is a particularly serious injury and is towards the upper end of the scale and that, in addition, the Court has to take into account Finlay’s vulnerability and the likelihood of psychological difficulties which might lead to an adjustment disorder at some point in the future as well as the risk that he might suffer an injury to his left arm.[86]The Defendant, by contrast, submits that Finlay’s injury properly falls in the middle of the bracket since Finlay is in a somewhat better position than an amputee, both cosmetically and functionally in that he can at least use his right arm as an assist device and has some, albeit modest, use from it. It was also submitted that Finlay had coped admirably well with his disability with the encouragement and support of his parents and had been able to partake in virtually all normal activities for a boy of his age, including many sports, skiing, cycling and the like, as well of course as discovering a talent for swimming and competing at national level in that activity.[87]The range contended for by the parties is £90,000 to £100,000. It seems to me that, having regard to the totality of the evidence in this case, the appropriate figure for general damages is the mid-point between the parties’ respective contentions, namely £95,000.

Special Damages

[88]I understand that agreement has been reached on a number of heads both prior to, and in the case of therapies and equipment, during the trial and I do not therefore deal with those matters in this judgment.

Past Care

[89]Prior to discount for the gratuitous nature of the care, Finlay puts forward a mid-point figure of £65,973 whilst the Defendant advocates for a figure of £60,563 with the Defendant contending for a one third discount and Finlay for 25 per cent. Plainly there are authorities which support both approaches.[90]To my mind Finlay’s suggested discount of 25 per cent is to be preferred in the light of the well known case of Evans v Pontypridd Roofing Limited.[91]Both parties rely on the evidence of their respective experts as to the amount of such care. The only area in dispute relates to the number of hours for transport and therapeutic appointments with Miss Ho allowing 200 hours per annum up until December 2009 (conclusion of surgery) and 40 hours thereafter, whilst the Defendant suggests 50 hours per annum until the end of 2007 and 10 hours per annum thereafter. It is common ground that these are all estimates, the exact amount of time varying from year to year depending on whether there has been surgery or otherwise extensive treatment in any given year. To my mind the suggested mid-point figure of £65,973 put forward on Finlay’s behalf is to be preferred since it reflects what, to my mind, is a more realistic estimate of the amount of time actually spent and the relevant figure, therefore, after discount of 25 per cent is £49,479.92.

Travel

[92]There are essentially two issues here. The first is the appropriate rate per mile. Finlay suggests 40p per mile whilst the Defendant concedes 25p per mile. For my part I can see no justification for a figure beyond 25p per mile.[93]The second issue relates to the cost of attending swimming training and competitions which it is said are likely to continue up until age 18, which the Defendant submits are simply not a result of any breach of duty on its part. Rather they are the costs of pursuing an activity at which Finlay excels and which his parents support him to undertake so that as a matter of principle they are not recoverable. The competing argument put forward on behalf of Finlay is that the costs are properly recoverable as being a mitigation of the loss he has sustained since they arise directly out of his disability. I do not accept that argument, accepting as I do the submissions made on the Defendant’s behalf and I reject counsel for Finlay’s analogy with attendance at Headway in the case of a brain injury.

Future Care

[94]As I understand it the parties agree the need and rates up until the age of 21. Thereafter they disagree with Miss Ho, contending for six hours per week whilst Ms Green for the Defendant suggests that the need will decrease and then stabilise at 3 hours per week until the age of 30, when it will halve to reflect the likelihood that Finlay will share chores with a partner. It is also agreed that some allowance for future childcare should be made to reflect the possibility that Finlay may, in the future, have one or more children which in turn will give rise to additional care needs in the light of his injury[95]Plainly it is very difficult to predict what the course of Finlay’s future life will be at this early stage, whether, and if so when, he might have a partner and whether, and if so when, they might have children. Whilst I have no doubt that both experts have done their best to identify Finlay’s likely future care needs, doing the best I can in the light of the various uncertainties, I conclude that a reasonable approach to the quantification of this aspect of Finlay’s claim is to adopt six hours per week until the age of 30 and then to reduce that to 3 hours per week to reflect that by that time he may well have a partner with whom to share chores, coupled with a further allowance of £20,000 for childcare. There should also be some allowance for the likelihood that at least some of the care involved in this future period will have to be secured from agency carers at higher cost. Again, doing the best I can, I would add a further sum of £10,000 in respect of this risk.

DIY, Decorating and Gardening

[96]This is a particularly difficult aspect to quantify. At this early stage in his life it is particularly difficult to predict what, if any, gardening, decorating and DIY Finlay might have performed for himself but for the effects of the injury. Many people can and do many or all of these tasks for at least some period of their lives, whilst others, although they may physically be able to undertake them, choose to pay others to do them on their behalf. Many people, whether out of choice or necessity, do not own their own home and might not even have a garden or have a need to undertake DIY and /or decorating. Doing the best I can it seems to me that a figure of £900 per annum is a reasonable reflection of the sum which Finlay might be anticipated as spending on these items from the age of 25 until the age of 70 which but for his injury, he would have undertaken himself. To my mind it is unrealistic to suggest that, but for the injury, Finlay would have continued to undertake gardening, DIY and decorating beyond the age of 70.

Future Travel

[97]In light of my conclusions as to the attribution or lack of it of travel for swimming, it does not seem to me that any award under this heading is justified.

Loss of Earnings

[98]Again, with a thirteen year old, quantification of future earnings is particularly difficult and perhaps not surprisingly, therefore, there is a fundamental disagreement between the parties as to the appropriate approach with Finlay arguing for a multiplier multiplicand approach and the Defendant arguing for a lump sum on the basis of the well-known decision in Blamire v South Cumbria Health Authority ( 1993) PIQR Q1. What is said on behalf of Finlay is that he will plainly be compromised on the labour market, both in terms of his ability to achieve a career in a wide range of fields and in terms of obtaining and retaining employment. Further, whilst it is accepted that Finlay’s academic limitations would themselves limit his options in any event, such that he would have been looking at practical and/or vocational occupations, his range of choice within that practical/vocational range of options has been further limited as a result of his injury. I accept the force of those submissions.[99]It was further submitted that there was a clear differential in earnings between the sorts of practical/vocational occupations which are closed to Finlay because of his injury and those which remain open to him and that that differential should be reflected in an award and that the correct way to approach quantification is to consider what career Finlay would be likely to have pursued uninjured. Given Mr Reid’s assessment, these are likely to have been practical careers following the obtaining of vocational qualifications. However, with his disability, Finlay cannot enter fields of work such as engineering draughtsman, IT technician or electrical trades and is more likely to be restricted to working in capacities such as a disabilities sports coach, or in sales and customer service or other administrative occupations, the earnings for which are, it is said, substantially lower.[100]Equally it is submitted on the basis of the orthopaedic and other evidence to which I have referred that Finlay has a significant disability for the purposes of Ogden 7 and that the full multiplier adjustment set out in Table B is warranted.[101]On the Defendant’s behalf it was submitted that given all the uncertainties, the Court cannot make an accurate assessment given Finlay’s youth, personality and the optimistic predictions for his future and all the other circumstances of the case such that the appropriate approach is to award a lump sum and adopting a broad-brush approach the relevant figure is £50,000.[102]For my part I do not accept that submission made on the Defendant’s behalf. In my judgment this is just the sort of case where it is appropriate to adopt the approach advocated on Finlay’s behalf. The question is whether and to what extent there is in fact an earnings deficiency. On this question I am satisfied that there is a deficiency as a result of the inevitable limitations on the type of practical and vocational occupations now open to Finlay which attract lower salaries than some of the practical/vocational occupations closed to him as a result of his injury. However, as it seems to me, the figure quoted on Finlay’s behalf as to likely earnings uninjured is overly optimistic as a result of the inclusion of some particularly high earning categories, such as design and development engineer and teaching and educational professional, in arriving at an average. Absent these particular occupations, the average uninjured earnings become £29,040 gross (rather than £32,500) with a consequential reduction to arrive at the net figure. I would adopt the average injured prospects figure of £17,304, giving a figure of £14,721 net referred to by Finlay’s counsel in his closing argument in order to arrive at the multiplicand.[103]Thereafter adopting Ogden 6, the multiplier from 21 to 68 (Finlay’s stated retirement age) is 27.14 which must be reduced by 0.8229 to reflect accelerated receipt for 7.89 years, giving a multiplier of 22.33 and allowing for the fact that Finlay will pursue Higher Education, the appropriate Table B discount is 0.61. The difference in multiplier is therefore 0.92 - 0.61 namely 0.31 giving a multiplier for loss of 6.92.[104]There is a claim for loss of pension. To my mind this is wholly speculative and I am not persuaded that there is any attributable loss under this heading.

Form of award

[105]The Court is obliged to consider whether or not to make a Periodical Payments Order. In this case, I have no doubt that such an order would not be appropriate having regard to Finlay’s long life expectancy and the comparatively low sums recoverable in respect of future care and the like, coupled with the administrative complexity of such an arrangement.

Conclusion

[106]I trust that I have dealt with all the issues on which the parties require a determination and that the parties will be able to calculate the sums due in respect of damages to reflect the terms of this judgment. If, however, there remain any matters in dispute on which, inadvertently, I have failed to make a ruling, I should be grateful if the parties would alert me to the lacuna, providing a short skeleton argument setting out the respective positions on the outstanding matter(s) and I will endeavour to incorporate my conclusions within the draft before the judgment is formally handed down.[107]Subject to that caveat, I trust that the parties will be able to agree the terms of an order which reflects the substance of this judgment.[108]Finally I would like to take this opportunity to thank both counsel for their considerable help and assistance throughout this trial.