RE & Ors v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB)

Case No HQ14X01554Neutral Citation Number:[2017] EWHC 824 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/04/2017
Before
MR JUSTICE GOSS
Between
REFirst ClaimantCALDERDALE & HUDDERSFIELD NHS FOUNDATION TRUSTDefendant
Mr William Featherby QC and Miss Vanessa Cashman (instructed by Addies) for ClaimantMr John Whitting QC (instructed by Hempsons) for DefendantHearing Hearing dates: 21 st– 24 th March 2017 inclusive and 28 th March 2017
JudgmentMR JUSTICE GOSS :Introduction
[1]RE (the First Claimant) was born on 22nd April 2011 at 39 weeks’ gestation at the Calderdale Birth Centre (‘the CBC’), a midwifery led unit under the control and management of the Defendant. She weighed 4.7 kg (10 lb 6 oz.). She brings a claim by her mother and litigation friend, LE (the Second Claimant), for personal injury arising out of the circumstances of her birth. The Second Claimant together with the Fourth Claimant, DE, who is the Second Claimant’s mother and was present at the birth, bring claims for personal injury caused by ‘nervous shock’. RE’s father, AE, is the Third Claimant but does not pursue his claim.[2]It is common ground that RE suffered an acute profound hypoxic ischaemic insult in the minutes immediately prior to and following her delivery. The Claimants’ case is that there was a negligent delay in the management and delivering of RE. I am required to determine the issue of breach of duty, causation no longer being materially in issue, and liability in respect of the Second and Fourth Claimants’ claims for damages for nervous shock.[3]There have been considerable problems with the Defendant’s disclosure in these proceedings. It is not necessary to identify the detail of what occurred and why. On any view, the Defendant, in breach of its duty under CPR Part 31 PDB §7, destroyed the medical records after the claim began and only copies are now available, which are unsatisfactory in a number of respects. The Defendant “digitised” the originals on 29th September 2015 then destroyed them on 18th January 2016. The Defendant’s Legal Services Manager, Ms Natalie Jooty, provided a witness statement dated 9th March 2017 in relation to the disclosure issues and was the first witness to give evidence. She was clearly confused as to when she signed the Statement of Truth on the Defendant’s List of Documents; eventually she accepted it was correctly dated 6th February 2015. Consequently, her statement to the effect that the documents had already been digitised was incorrect. She explained that her subsequent informal enquiries revealed that a named individual who was then the Legal Services Manager bore responsibility for not ensuring the records were returned as they should have been after being digitised. However, I am satisfied that the records were destroyed by reason of negligent failings by the Defendant either by individual failures and/or in their system or systems and not as a result of a deliberate attempt to destroy evidence in this claim.[4]Nevertheless, the position now is that the integrity of the records cannot be guaranteed. The photocopies, some of which are in colour and some in monochrome, are not of good quality for forensic purposes and there are puzzling differences between some of the copies of the original documents and the digitised version. What is of particular concern is the inability to examine entries on the contemporaneous medical records, scrutinise entries that have clearly been over-written to determine what was originally recorded and compare the pens and inks used at various important points in the records.[5]Medical records are neither self-proving nor automatically admissible: see Buxton LJ’s remarks in Denton Hall Legal Services v. Fifield[2006] Lloyd's Rep Med 251. The Claimants expressly put the Defendant on notice that they must prove any medical records on which they relied. In fact, the only witnesses providing evidence of the truth of their respective contributions to the medical records are Midwives Garvey and Taylor and Dr Emovon.[6]The Claimants contend that where there are ambiguities or uncertainties on the face of the documents, the court ought to resolve them in the Claimants’ favour. Given that the Defendant failed in their duty to maintain the records, where, by reason of the quality of the relevant record now available compared to what would have been expected to have been clearer on the originals, I consider that it is appropriate to proceed on the rebuttable assumption that my reading of the entries should be the most favourable to the Claimants that is reasonable on the face of the available documents. Mr Whitting QC, on behalf of the Defendant, has not contended otherwise. Background[7]RE is the Second Claimant’s second child. Her first child, a girl, was born on 8th June 2007 at 39 weeks’ gestation and weighed 7 lb 4 oz. (3.288 kg). It was an uneventful pregnancy. When, in August 2010, she became pregnant again, she and the Third Claimant decided that their second baby could be delivered at the Huddersfield Birthing Centre (‘HBC’). She suffered from very bad morning sickness, constantly vomiting, and developed lower back pain. On 3rd December 2010, following severe pain in her pubic bone, her GP diagnosed her as suffering from SPD (symphysis pubic disorder), for which she attended hospital for physiotherapy. Her girth was significantly larger than it had been during the comparable stages of her pregnancy with her first child. On 4th February 2010, by which time she was 28 weeks pregnant, she attended an antenatal appointment with her midwife, Amanda Fenn. Her tummy measurement was large for her date, being appropriate for a 32-week pregnancy. She was tested for maternal diabetes but blood tests came back as normal. She was referred to the Huddersfield Royal Infirmary where she was seen by an Obstetric Registrar on 18th February 2011. Her evidence was that she just remembered being told that she was having a big baby. No problems were recorded. On 22nd February 2011 a growth scan recorded her fetus as being just above the 90th centile. A month later, on 24th March 2011, on another antenatal visit, a scan showed that the fetus was over 36 cm which was significantly above the 90th centile. She was reassured by the registrar about the size of her baby, who also recorded that no induction of labour was indicated, she should be treated as normal and was referred back to the community midwife. Because of the large size of her baby, the Second Claimant rejected the community midwife’s reassurance that there was no reason why she couldn’t deliver at the HBC, and she and the Third Claimant chose to go to the CBC which had an ‘alongside’ unit should obstetric assistance be required. There were further appointments with the community midwife at the hospital on the 4th, 15th and 21st days of April 2011. The Second Claimant was suffering pelvic discomfort and was “aghast” at the prospect of having a baby weighing more than 10 lb (4.54kg). She was reassured that “big babies just slip out”. On the morning of 22nd April 2011 her ‘waters broke’ at 06.15 hours; she telephoned the CBC just over an hour later and spoke to Midwife Kate Garvey, who enquired why she wasn’t going to Huddersfield. On being informed that she was having a big baby, Midwife Garvey said she had delivered more than 300 babies and was, according to the Second Claimant, somewhat dismissive. She was told to come to the unit. At 10.00 hours, the Second, Third and Fourth Claimants arrived at the CBC. RE was born at 16.53 hours with the assistance of Dr Emovon, the Obstetric Registrar who had been summoned to the delivery room due to difficulties with the delivery. Midwife Jayne Taylor and Healthcare Assistant Julie Halstead (formerly Conyers) were also present, having been summoned to help at 16.45 hours. RE was pale, floppy and without respiratory or heart rate. Resuscitation was commenced and a heart rate was noticed after 10 minutes and a first gasp after 12 minutes. Both the Second and Fourth Claimants suffered post-traumatic stress disorder. Causation and quantum have been agreed in respect of both claims, subject to the issue of whether they are entitled to recover damages either as primary or secondary victims. Issues[8]The Claimants’ case is that(a) RE’s delivery should have been achieved earlier than it was;(b) Specifically, RE’s head was born but there was shoulder dystocia which delayed the delivery of her body for longer than was appropriate.(c) Such delay was a consequence of failings by the midwives and obstetricians in both the planning for the birth and in the delivery.[9]The issues have narrowed considerably. It is now accepted on the Claimants’ behalf that the CBC, being an ‘alongside’ unit, had access to the requisite appropriate obstetric expertise, if required. The remaining controversial ones relevant to determination of the issues are: -(i) The appropriate measures that should have been taken or put in place prior to the delivery;(ii) The actions of Midwife Garvey in relation to the second stage of labour; in particular, permitting the Second Claimant to deliver on the floor and when the delivery of RE’s face was slow;(iii) The actions of Midwife Garvey, having summoned the Obstetric Registrar (Dr Emovon), in preventing him entering the delivery room and the latter’s failure to enter the room in any event;(iv) The Defendant’s liability for claims for damages for nervous shock. Witnesses[10]Evidence by statements and orally at the hearing was received from the Second, Third and Fourth Claimants, Midwives Garvey and Taylor and Dr Emovon. Julie Halstead’s statement made on 29th May 2015 was admitted in evidence but her mental health problems precluded her from being examined in court. Expert evidence in the form of reports and responses to questions submitted by the parties was received from the following medical expert witnesses: - Discipline Claimant Defendants Obstetrics Mr Gerald Jarvis Mr Richard Porter Neonatology Dr Kevin Ives Dr Anthony Emmerson Paediatric Neurology Dr Gayatri Vadlamani Dr Rajat Gupta Neuroradiology Dr Brian Kendall Dr W St C Forbes Dr Neil Stoodley Midwifery Ms Astrid Osbourne Ms Susan Brydon Psychology / Psychiatry Dr Eileen Bradbury Dr G E P Vincenti In addition, the expert witnesses in midwifery and obstetrics all gave oral evidence. It is to be noted that Mr Jarvis has not engaged in clinical practice in the NHS since 2002. This does not, of itself, disqualify him from expressing opinions on acceptable and accepted clinical practices in 2011 but it does distinguish him from Mr Porter, who remains in active clinical practice. The duty of care[11]The Defendant, by their staff, owed RE a duty of care in the medical, midwifery and nursing services they provided not to treat RE in a way that failed to conform to any reasonable body of medical and midwifery practice: Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. The risk to the health of babies as a result of being starved of oxygen before, during and after delivery is well known. The risk is quantitatively and qualitatively high: perinatal hypoxia is common and its consequences can be catastrophic. Until born, a baby is dependent upon oxygen from her mother supplied in oxygenated blood through the umbilical cord. If the umbilical cord is occluded – normally by compression – the baby’s supply of oxygenated blood will be reduced and, in some cases, cut off altogether. It is not in issue that where there is a risk of more than transient hypoxia, the baby must be delivered as quickly as is reasonably possible. Shoulder dystocia is a well-known potentially lethal condition and is “one of the most frightening of medical emergencies” (Midwife Susan Brydon). The Defendant’s own Management Guideline described it as “one of the most dreaded obstetric emergencies”. The definition of shoulder dystocia agreed in this case is “a delivery that requires additional manoeuvres to release the shoulders after gentle 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”.[12]Central to this case is resolution of the issue of whether there was shoulder dystocia in RE’s delivery or whether her head was slow to deliver and then there was a short-lived period of ‘body dystocia’ in that her body became stuck at around the nipple line for a short time, causing compression on her chest and/or her umbilical cord in the birth canal. The risk of a shoulder dystocia is much higher in a large baby. The Claimants’ case is that the obstetric and midwifery care fell below an acceptable standard in failing to anticipate the risk that there would be a shoulder dystocia in a baby known to be very large, and then in dealing with the impending and actual materialisation of that risk. The Defendant denies that there was a shoulder dystocia or any causative failures in the standard of midwifery and obstetric services provided. The relevant evidence General observations[13]On any view, the Second Claimant’s labour was a particularly tense time for her. She was, understandably, very apprehensive at having to give birth to a large baby. Her pregnancy had not been easy, particularly in comparison to her first, and RE’s birth was an especially traumatic time for her both as it happened and in its aftermath. I do not find that she or the other Claimants have consciously exaggerated or deliberately mis-stated what they believed occurred, but their total reliability cannot be accepted. For example, they all accept that they must have been incorrect in their timings in relation to the summoning of help and the period over which RE’s head was ‘stuck out’ from between her legs before she was delivered. Perceptions of time can be distorted in stressful situations. I have no doubt they considered every minute of difficulty seemed like a long time. They have also complained about the dismissive attitude of Midwife Garvey. To some extent, inevitably, the outcome of the birth and its circumstances will have coloured their perceptions and recollections. However, I accept that they have not deliberately exaggerated their evidence and that their impressions do, to some extent, inform the determination of the essential facts and timings.[14]Midwife Garvey was undoubtedly placed under stress. In her professional duties, accuracy as to noting important times and events and assessing and reacting appropriately to developing situations are part of her training and duties. Ms Brydon referred to it not being uncommon for the notes of midwives in this situation subsequently to be corrected or added to. Each case and the reason(s) for later amendment have to be considered carefully. Further, through no fault of hers, there is the additional handicap caused by the wrongful destruction of the original written medical notes and reliance having to be placed on unsatisfactory photocopies.[15]The Defendant carried out their own investigation into the circumstances of and surrounding RE’s birth. The report dated 4th October 2011, followed an investigation by its authors, Joyce Ayre, Community Midwifery Manager and Kalvinder Bhabra, a Consultant Obstetrician and Gynaecologist. In addition, there are both notes and signed and unsigned statements taken by the investigators. Midwife Taylor, of her own volition, made a statement relating to the events on that night. The contents of some of those documents, like the medical notes, reveal puzzling and largely unexplained inconsistencies, particularly in relation to timings and events. The relevant antenatal evidence[16]A good deal of the written and oral evidence has related to the Second Claimant’s pregnancy and the steps that should have been taken to prepare for the birth. It is neither helpful nor necessary to set it out in detail. There is no dispute that RE was a large fetus. She was recorded as ‘LFD’ (large for dates) on routine reviews during the pregnancy on 18th February 2011, 22nd February 2011 (confirmed on a scan), 17th March 2011 and 4th April 2011. The fetal size was also plotted on a ‘customised antenatal growth chart’. It is common ground that the plotting on that chart was inaccurate, confusing and, in the opinion of Mr Porter, “sloppy”. The measurements taken from the scans are subjected to a software calculation as to the estimated fetal weight. At 35 weeks’ the estimated fetal weight was 3.399 kg.[17]Further, it is not in issue that macrosomia, which is defined as a birth weight of 4.5 kg or more (above the 97th centile), is one of the risk factors for shoulder dystocia and that, in fact, RE was macrosomic. However,(a) The relevant Royal College of Obstetricians and Gynaecologists’ (‘RCOG’) Guideline on Shoulder Dystocia , under the heading ‘Prediction’, states “There is a relationship between fetal size and shoulder dystocia but it is not a good predictor. The large majority of infants with a birth weight of ≥4500 g do not develop shoulder dystocia and, equally importantly, 48% of incidences of shoulder dystocia occur in infants with a birth weight of less than 4000 g. Moreover, clinical fetal weight estimation is unreliable and third-trimester ultrasound scans have at least a 10% margin for error for actual birth weight and a sensitivity of just 60% for macrosomia (over 4.5.kg).”(b) The RCOG Green Top guideline quotes the National Institute for Health and Clinical Excellence (‘NICE’) Guideline’s statement that “ultrasound estimation of fetal size for suspected large-for-gestational age unborn babies should not be undertaken in a low risk population.” Mr Jarvis agreed with this.(c) The prediction of macrosomia is not an accurate calculation that can be undertaken. I accept the evidence of Mr Porter that the accuracy of estimates is unreliable and, importantly, the charts are not used in clinical practice by most practitioners.(d) For the avoidance of doubt, I reject the evidence of Mr Jarvis that a careful calculation of the fetal weight at birth should have been undertaken to determine whether the clinical definition of macrosomia was likely to be satisfied. Such a practice is neither mandated nor suggested in any RCOG or NICE Guidelines or textbooks. Moreover, to obtain a result of predicted macrosomia in this case would require the addition of the 10% ‘margin of error’ to be allowed for in the calculation.[18]All relevant medical staff were aware of the large size of the fetus. There was or should have been an awareness that macrosomia was a distinct risk factor for shoulder dystocia in this case. There was reference by the community midwife to the Obstetric Registrar. Obstetric review did not raise any issues requiring any measures other than preparation for a normal birth. There was a birth plan. As the Second Claimant had elected to give birth at the CBC, which had an alongside unit, Obstetric help was available. In oral evidence, Ms Osbourne accepted that all that should have been in place for this delivery was, in fact, there, including the availability of an Obstetric Registrar within two minutes of being summoned. Further, this accorded with the prevailing RCOG Guidelines which, in their 2012 edition, did not require such a presence. Again, if Mr Jarvis was unequivocally contending for something more, such as the presence throughout the second stage of labour of an Obstetric Registrar, then I do not accept that was mandated by good or normal clinical practice in the prevailing circumstances and prefer the evidence of Mr Porter and Ms Brydon on this issue.[19]Accordingly, I do not find there to have been any negligence in relation to the antenatal care provided to the Second Claimant or any causative failings in relation to the preparation for the birth. However, her medical advisers knew by the time she presented after her waters had broken that she was going to have a large baby. 22nd April 2011[20]The medical records reveal that the Second Claimant alerted the CBC in her phone call not only to the fact that she had had an SROM (spontaneous rupture of membrane) at 06.15 on 22nd April 2011 but that she was having ‘a big baby’. Whether identified as likely to be macrosomic or simply a large baby, alertness to the increased risk of shoulder dystocia was mandatory and a factor to be considered at all material times. Midwife Garvey’s note at 10.00 records that the baby was ‘just ≥90th centile’. This must have been taken from the medical notes. The first stage of labour proceeded. There were regular, timed notes, initialled by Midwife Garvey which, in each case, she said had been made sequentially and prior to the time of the next note. At 15.30 it was noted that the Second Claimant moved to a kneeling position on the birthing mat. The crucial hour: 16.00 to 17.05 hours on 22nd April 2011[21]The accounts of the Second, Third and Fourth Claimants of the hour prior to delivery are markedly different from that of Midwife Garvey. The Second Claimant complains about her treatment; her requests for pain relief were ignored and she was generally neglected during first and second stage labour. In addition to the pain of labour, she was also suffering from SPD. I do not doubt that the pain, stress and concerns about the size of the baby heightened her perceptions of difficulties and influenced her view of the level of care but I do not accept the Defendant’s contention that she was wrongly and unfairly painting the midwives both antenatally and at the birth in a bad light. I reject the evidence of Midwife Taylor that when she entered the room at 16.45 the Second Claimant “appeared extremely quiet and calm” (Witness Statement signed on 13th July 2016). The original draft stated that she appeared “distraught”. She could not explain how that came to be written. They are ‘polar opposites’. Not only was the Second Claimant in extreme discomfort, I find that she was very distressed by reason of her circumstances and by 16.45 the pain, difficulties and anxiety were acute.[22]The timings are controversial and crucial. There is no doubt that the various medical notes contain unexplained and contradictory entries and there are other documents attributable to witnesses with material that contradicts some of those entries. The Defendant invites me to conclude that there is no reason to doubt that the timed entries in the intrapartum notes between 15.30 and 16.50 were contemporaneous in the manner described by Midwife Garvey referred to in the foregoing paragraph and accurate in their descriptions of the events at the times identified. On behalf of the Claimants, it is submitted that they were not in the latter stages, and certainly not from 16.15.[23]It is neither necessary nor helpful to review all the entries over the relevant period. I have considered all the material with care and do not consider the Defendant’s “broad brush” approach to be appropriate or helpful, not least because there have clearly been alterations as to timings and events and unexplained inconsistencies. I am also mindful of the circumstances that obtained in the 20 or so minutes when Midwife Garvey was on her own prior to the help being summoned at 16.45.[24]Accordingly, I have critically analysed the evidence and reached the following conclusions: -a. At 16.25 (see intrapartum notes) a call was made to alert the 2nd midwife and Julie Halstead (healthcare assistant) informing them of progress and making them “aware to come if requiring assistance”.b. Crowning occurred by 16.34. That is my determination of the original note at the top of the intrapartum notes. Midwife Garvey accepts that she wrote those timings and altered them. She could not remember when but thought she made those notes of timings after she had completed the main intrapartum notes, which must have been sometime after 17.30, when she completed the retrospective note about events from 16.50. That entry was subsequently altered to 16.40. Adjacent to that is a note that originally read 16.37++ but was later altered to 16.40++ followed by the clear, unaltered note 16.39+++. The use of + signs was to indicate the that she could see more of the head. Underneath that is a note 16.50 face. These are entries that would have been much easier to decipher from the original notes but there is sufficient clarity on the best available photocopy for me to reach the conclusion that I have. It is puzzling as to why these notes were made retrospectively and not as part of what were said to be the contemporaneous notes between 16.30 and 16.50. It is far more likely they were original contemporaneous jottings of actual times that were then altered. Further this timing of crowning occurring and then the baby’s head not progressing is consistent with the clear impression created by the evidence of the Second, Third and Fourth Claimants. Notwithstanding the errors in their original statements as to the clock timing of the emergence of RE’s head, I am satisfied that the evidence of the Second, Third and Fourth Claimants that RE’s head had been ‘out’ and between the Second Claimant’s legs for a period around 15 minutes was a reliable perception and that the Fourth Claimant asked if it was okay for RE’s head to have been out for so long when the second midwife (Taylor) came into the room.c. At 16.45 the head was out to the mouth and Midwife Garvey called for assistance. The Second Claimant was still on all fours on the floor. The writing on the sheet of paper now copied as p 61 in section A of Volume 5 in Julie Halstead’s hand of “16.45 – Face” is consistent with her writing this down on arrival in the room or very soon after she entered. The entry below “16.47 – Chin” is in Midwife Garvey’s handwriting. Her evidence was that, although she couldn’t say when it was written, it was the time they were moving towards delivery of the chin.d. At 16.47 the Second Claimant was asked to move to the bed to aid delivery of the chin but she was finding it difficult to move. She was got onto the bed. This had the effect of assisting delivery. At 16.50 she was kneeling on the bed and there was delivery of the chin. Subsequently, Midwife Garvey wrote the word ‘lips’ over the word chin. If, as she said was the case, she wrote the entry almost immediately following the event, her original entry is more likely to have been accurate and I so find.e. The Obstetric Registrar was bleeped at 16.50. Dr Emovon was outside the room by 16.52. Midwife Garvey shouted for him to remain there and not come in. He asked Julie Halstead to tell Midwife Garvey that it was the Obstetric Registrar but it was reiterated by Midwife Garvey that he should remain outside. He was there for about a minute before being called in. Once in the room, RE was delivered to about nipple line: the shoulders had been delivered. She appeared to be stuck. Dr Emovon applied downward traction and delivered her.f. The Paediatricians were bleeped by Julie Halsted at 16.50. Wherever any other entries in the intrapartum notes in relation to timed events differ from those set out above, I reject the entry as incorrect and unreliable. Other relevant accounts and evidence[25]Midwife Garvey also said or wrote the following in relation to delivery: -a. On the labour notes in the section ‘Second Stage Complications’ after the word ‘Delay in delivery of head in 2nd stage’ she added the words “shoulder dystocia”. She could not assist as to when or why she added those words.b. In the notes of an interview of her on 6th June 2011 undertaken as part of the Defendant’s investigation into the incident, at which she was accompanied by her Supervisor of Midwives and which she signed, after the passage dealing with the head being out and bleeping for the “Obs/Paeds”, it is recorded that: - “At 16.53 the anterior shoulder delivered and then the posterior, easily with strong downward traction. Julie (HCA) shouted that the doctors were here. I said that I just needed the Paediatrician now as I thought the baby was coming as the shoulders were delivering. The baby then stuck at the mid line. I felt that the baby was totally stuck and it was like the baby was being sucked back in. Both the Registrar and I had to pull to deliver the baby…” She was unable to explain how that account came to be written. She accepted she must have read the typed document before signing it. According to Dr Emovon and her later account she did not assist him by pulling.c. In her first statement in these proceedings she said “14. The first indication of anything untoward happening occurred at 16.45, 20 minutes after the head became visible. The head delivered to the top lip but the perineum looked really tight which as (sic) not normal. I expected the rest of the head would deliver with the next contraction but it did not. I anticipated a problem getting the bottom lip delivered and so I buzzed for assistance. Jayne and Julie came into the room within a few seconds.” … 16. I asked [the Second Claimant] to change position because I thought there might be a shoulder dystocia. I was thinking about the HELLPER (sic) procedure (the correct mnemonic is HELPERR). I wanted [the Second Claimant] to try to get onto her back so we could get her into the McRoberts position if I needed to.” … 21. At 16:53 the baby’s anterior (left) shoulder delivered, immediately followed by the posterior shoulder in the same contraction. The baby’s shoulders delivered much more easily than I expected. It was not necessary to use any traction to deliver the shoulders.”[26]On the Incident/Near Miss Reporting Form in the section ‘Summary of Incident/Near Miss with any immediate actions taken’ Dr Emovon wrote “Shoulder dystocia. Baby transferred to Manchester for cooling.”[27]Dr Bodle, a Consultant Obstetrician, after reviewing the notes, recorded on a clinical notes history sheet “Discussed events with [the Second, Third and Fourth Claimants]. Explained diagnosis of shoulder dystocia and inability to predict it.”[28]The Defendant’s own enquiry concluded “From the investigation of this case and looking at the signs documented there was dystocia with significant delay from partial delivery of the head to the rest of the body. There is limited information with regards to “body dystocia”, it has been reported in situations where the baby has an abdominal tumour/ascites. The midwife describes using strong traction to deliver the shoulders. … … Shoulder dystocia is an emergency situation necessitating immediate effective intervention by the attending midwife. … The signs were evident of potential dystocia and although there was evidence of insight of the potential problem… on this occasion the signs were not acted upon in a timely manner.”[29]Ms Osbourne’s evidence was that a protracted birth of the face over the perineum is a definite sign that there is a shoulder dystocia. She had never experienced a baby being stuck around the nipple line. Ms Brydon said she had ‘come across it “occasionally”’. Ms Brydon’s opinion was that the head was slow to deliver, there was no shoulder dystocia but there was body dystocia. However, in her oral evidence, she stated that with a baby that you are warned is going to be some distance above the 90th centile “…at the first sign of trouble, help must be summoned” By which, she went on to explain, she meant “… it isn’t necessarily the first sign of trouble if the head crowns and then it doesn’t deliver with the next contraction because that happens not infrequently, so you would wait for the next contraction. If you think the head is then stuck I would ask another midwife to come into the room to help me to move the woman, and then if that didn’t help with the delivery of the baby, if it’s a very big baby, then I might call for a doctor then…. I don’t mean that you would be calling a doctor the second that the head crowned and then nothing happened. You would do other things first as a midwife and then if that didn’t work then you would need some help.”[30]In relation to timings, there is also contradictory evidence as to when the fetal heart beat was last detected and noted. Midwife Taylor in the statement she made for herself on the night in question said she and Julie were informed by Midwife Garvey that fetal heart had last been heard at 16.35. The intrapartum notes have FH entries at 16.40 and then what has the appearance of a ‘squeezed in addition’ at 16.45 after Midwife Taylor and HCA Halstead had arrived. The FHR should have been checked every 5 minutes at this stage. These discrepancies add to the evidence of the unreliability of the notes and Midwife Garvey’s actions and recording of times. I have concluded that by reason of the many unexplained discrepancies, contradictions and revisions in the records and accounts of Midwife Garvey that their and her reliability is so undermined that I have not been able to rely on her and them and have made my findings accordingly. My conclusions on the second stage of labour[31]On the basis of my findings as to the timing and nature of specific events, I reach the following conclusions: -a. In the knowledge that the Second Claimant was giving birth to a ‘big baby’ it was or should have been apparent to Midwife Garvey that there was a risk of dystocia.b. Once crowning had occurred by 16.34 and the baby didn’t deliver after the next contraction she should have appreciated that there was a real possibility that this was a case of shoulder dystocia.c. Whether this was a case of shoulder dystocia or not, after crowning by 16.34 and the head not delivering after one or two contractions, RE was stuck in the birth canal. Midwife Garvey should have diagnosed potential shoulder dystocia, and, in accordance with all the guidelines, summoned help immediately. She had experience of shoulder dystocia and so described it afterwards. I find there probably was shoulder dystocia.d. Bradycardia commenced sometime between 16.38 and 16.43. The timings of events as I have found them to be accord with the evidence of Dr Ives as to the period of the insult, hypoxic injury commencing from about 16.45 and lasting until RE gave her first gasp at 17.05, some 12 minutes after being born.e. Assistance should have been summoned at around 16.37. Had it been, the birth would have been completed at 16.42. In fact, birth was delayed for about another 11 minutes. In any event, had RE been delivered by 16.44-45 then the agreed evidence of the neonatologists and paediatric neurologists is that she would have “avoided all damage”.[32]Because of these primary findings in relation to events and timings, I do not need to address other alleged negligent failings in detail. Although neither of the Consultant Obstetricians were aware of it being possible to carry out the McRoberts manoeuvre on the floor, I accept the evidence of Ms Bryden that no justifiable criticism attaches to Midwife Garvey for permitting the Second Claimant to remain on the floor at the commencement of the second stage of labour. However, there came a time when she needed to be on the bed. On my findings as to timings, this should have been initiated and achieved earlier than after 16.48. Further, the exclusion of Dr Emovon for about a minute was, in the prevailing emergency circumstances, an unreasonable and inappropriate action. There was an ongoing dystocia. He could and, in the event, did provide obstetric assistance and complete the delivery. It was, therefore, another negligent act adding a further minute to the period of the insult to RE prior to birth with the concomitant delay in the period of resuscitation. Conclusion on liability[33]Accordingly, I find that there was negligence in the delivery of RE by delaying the summoning of help that was causative of the hypoxic injury that commenced at about 16.45. The claims for nervous shock[34]In relation to the claims for nervous shock, the following issues arise for determination:-a. Is the Second Claimant a primary victim? The Defendant says that she is not. The Fourth Claimant is unquestionably a secondary victim.b. Was the event of a sufficiently sudden and ‘shocking’ nature as to entitle the Second and Fourth Claimants to damages for psychiatric damage?[35]The recovery of damages for nervous shock as a secondary victim are governed by established legal constraints that have been laid down in Mcloughlin v. O’Brian [1983] A.C. 410 and Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 (‘the control mechanisms’). They have been described as “arbitrary and pragmatic” (per Tomlinson LJ in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588; [2015] PIQR P20 at paragraph 20). The necessary preconditions to establish a claim as a secondary party are: -a. a sufficient closeness both in terms of love and affection to the person injured or killed and being in sight or sound of the directly injurious event giving rise to the tortious liability;b. the induction of psychiatric illness by shock, that is “the sudden appreciation by sight or sound of a horrifying event which violently agitated the mind.” (per Lord Ackner in Alcock (ante) at 401F).[36]In the case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne (ante) Tomlinson LJ emphasised that “A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove distressing.” (paragraph 21) … “What is required in order to found liability is something which is exceptional in nature.” (paragraph 41)[37]The Second Claimant’s case is that mothers whose babies are injured before delivery are to be treated as primary victims as there is no separation of mother and fetus as legal entities whilst the baby is still in utero: they are one legal person. Reliance is placed on paragraph 20 of the judgment of Michael Kent QC in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB); [2016] PIQR P3. In that case the fetus died in utero and the Defendant accepted the mother was a primary victim. The Defendant says that is not this case: RE survived and her permanent injury was sustained ex utero given the causation experts’ agreement about the duration of the acute profound hypoxic ischaemic insult and the agreement as to the point at which it would have yielded permanent neurological injury from 16.45 until about 17.03.[38]However, in Wells v University Hospital Southampton NHS Foundation Trust[2015] EWHC 2376 (QB); [2015] Med. L.R. 477 the baby (Layla) died shortly after birth as a result of meconium aspiration in the womb. Negligence on the part of the hospital was not established on the facts. Dingemans J nevertheless went on to address the psychiatric claims. It was common ground that the would-be negligent failure to take the mother for a Caesarean section when the baby had aspirated the meconium occurred when the mother and the baby were still considered to be one person. He concluded “83. In my judgment Mrs Wells was a primary victim. That is because the negligence (if it had been established) would have occurred when Layla and Mrs Wells were still one. That meant that Layla would (albeit not known to Mrs Wells) have aspirated the meconium, which later caused her death, when Mrs Wells and Layla were one person. This aspiration of the meconium caused Layla’s death and caused the adjustment order suffered by Mrs Wells. Although some of the distinctions in this area of the law are arbitrary it does seem to me that in such circumstances Mrs Wells is a primary victim.”[39]In Farrell v Merton, Sutton and Wandsworth Health Authority(2001) 57 BMLR 158 a mother whose son was born severely disabled as a result of the hospital’s negligence sustained psychiatric injury arising out of “the trauma of the birth”, which included delivery by caesarean section. The Trial Judge found that the “‘trauma of the birth’ encompassed not only the events in the operating theatre but also the position up to and including the first sight of her baby and the realisation (when told by the paediatric SHO) of his disability.” She was, therefore, treated as a primary victim.[40]This is not an area which is straightforward and without controversy. My findings in this case are that the negligence occurred when RE’s head had crowned but her body remained in the birth canal. At this point she was not a separate legal entity from her mother and, in law, they are to be treated as one. The delayed delivery triggered the commencement of the hypoxic event whilst she was still in utero. She remained compromised and sustaining injury until 8 minutes after her birth. The extent of the injury was dependent upon the totality of the insult which began at the time that Second Claimant and RE were a single legal entity. In these circumstances, the Second Claimant was a primary victim. As such, recovery for psychiatric injury should be in accordance with the principles in Page v Smith[1996] AC 155 and not subject to the control mechanisms applicable to claims by secondary victims.[41]Nevertheless, I go on to consider whether the evidence satisfies the preconditions for her claim for nervous shock as a secondary victim to succeed to cover the eventuality of my being wrong in finding her to be a primary victim.[42]RE was born flat and apnoeic, with a purple and swollen head. The Second Claimant, justifiably, thought she was dead. There is uncontested detail from the Defendant’s psychiatric expert as well as the Second Claimant herself in relation to the events and their effects on her. In her witness statement the Second Claimant describes the moment of birth in the following terms: - “I couldn’t believe what was happening. I felt that I was living in a nightmare. The doctor clamped RE’s cord and as I looked down at her I could see that her body was completely white and lifeless, her head was purple and swollen, she did not make sound. I remember thinking to myself “my baby is dead my baby is dead”….. I had stuck in my mind the picture of her lying between my legs, her head was completely purple and bruised and swollen, her body was white and lifeless.”[43]Dr Vincenti, the Defendant’s psychiatric expert refers to the following features of the Second Claimant’s account: - “…by squatting on all fours she could see the baby’s face. This alarmed her…” When she was told by Midwife Garvey to get onto the bed:
“…[she] was very worried and frightened at this point, that the baby was in some danger and that she might break the baby’s neck as the baby’s body was still stuck in the birth canal. She could see in her mind an obituary notice…”
She suffered from flashbacks with panic attacks:
“I’m there in the hospital and I cannot do anything.”
She could see in her mind an obituary notice…”[44]He also reports that PTSD is a condition that does not arise spontaneously but requires, as a triggering event, that the patient experiences a life-endangering event at first hand, in which either he/she or someone close at hand is directly endangered. The Second Claimant’s own life was not endangered in her delivery above that of any obstetric risk but RE was very much in danger and it is likely that had there not been skilled medical assistance available immediately RE would now not be alive. He confirms that the trigger has to be the direct experience of a life-endangering event and, in this case, this means the birth of a flat, apnoeic baby who then required skilled resuscitation to save her life and that had she not endured the same difficult delivery but had given birth to a pink and spontaneously-breathing infant she would never have developed. He reiterates that:
“The key trigger factor and necessary trigger factor for the PTSD was the hypoxic injury sustained to RE and LE’s knowledge that her baby was in great danger.”
[45]The Second Claimant’s expert, Dr Bradbury, reports that “When RE was born, the baby was flat and was not breathing and LE thought that she was dead… The most striking early responses to these events were those of shock. She described feeling as though she was in a bubble, as though it was unreal and not happening to her and described feelings of dissociation. She was physically shaking and cold.”[46]I am satisfied on the evidence that the Second Claimant’s PTSD was triggered by the birth of a flat, apnoeic baby. RE’s condition was a consequence of a period of negligence that exceeded the three minutes contended for by the Defendant and that, on a balance of probabilities, the situation that arose could have been avoided and the injury to RE would not have been caused had there not been negligence in her delivery.[47]In relation to the control mechanisms to be satisfied if the Second Claimant is a secondary victim, she is clearly in the closest possible personal relationship to RE, whose condition on birth was a sudden and unexpected event and not a process of gradual realisation. There was no conditioning for what came nor was there any warning of a materialising risk that RE would be born lifeless and require a sustained period of resuscitation. I am satisfied that, for the Second Claimant, this was an outwardly shocking experience that was exceptional in nature and horrifying as judged by objective standards and by reference to persons of ordinary susceptibility. It was not an event of the kind to be expected as ‘part and parcel’ of the demands and experience of childbirth. The Second Claimant, whether a primary or secondary victim, is entitled to damages for nervous shock.[48]The Fourth Claimant’s witness statement describes the event in similar terms to that of her daughter. She was present throughout the birth and witnessed the aftermath. She, too, was convinced that RE was dead. There is agreement between the Consultant Psychiatrists that she has suffered PTSD as a result of observing the events of RE’s birth. I am satisfied that her first-hand observation of the first 15 minutes of life, that is the period immediately following her birth, was the triggering event for PTSD. She has and had a very close relationship with the Second Defendant. It is not suggested on behalf of the Defendant that she was not sufficiently close in terms of relationship to RE and to the event to be capable of being a secondary victim. The only issue is whether the event was sufficiently horrifying to establish a claim. As in the case of the Second Claimant, I find that the event was sufficiently sudden, shocking and objectively horrifying to reach the conclusion that the Fourth Claimant’s claim for damages for nervous shock is established.[49]These are my findings in relation to the issues I have been required to try. I am very grateful to all Counsel for their assistance.

Cited in 1 later judgment