“The Claimant do be permitted to amend to plead an allegation in relation to negligent failure to observe a disproportionately large head on or after8 October 2012 The Claimant sought to plead further amendments. Some were not objected to. Others were refused after a hearing on 31 March 20. . The amendment alleged the following head circumferences: •8th October 2012 – Between centiles 98 and 99.6 •15th October 2012 In fact pleaded as16th October 2012 . – Centile 99.6 •13th November 2012 – Very significantly over centile 99.6 The Claimant alleged that the Defendant failed, on visual examination of him particularly when unclothed, to identify that he had an unusually large head and/or that his head and body were not in proportion. The way the matter arose at a very late stage was that Sharon Kirkpatrick’s (undated) statement had been served only shortly before trial. At [19] she said: ”
"…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."
"Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence."
"……the court is not bound to hold that a Defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the Defendant's treatment or diagnosis accorded with sound medical practice……The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. … 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."
"25. … It seems to me that in the light of the case law the following principles and considerations apply to the assessment of such expert evidence in a case such as the present: i) Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion. ii) This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent. iii) The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself. iv) In making an assessment of whether to accept an expert's opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is "responsible", "competent" and/or "respectable"; and whether the opinion is reasonable and logical. v) Good faith: A sine qua non for treating an expert's opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a Defendant's conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice. vi) Responsible/competent/respectable: In Bolitho Lord Brown Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was "logical"
“14. First, it would not, in all ordinary circumstances, be appropriate for a judge to hold that a particular clinical decision had no logical basis or was unreasonable without the support of expert evidence. The burden of proving that an impugned decision, supported by a responsible body of medical opinion, was nevertheless unreasonable is self-evidently a heavy one, as Lord Browne-Wilkinson himself emphasised in Bolitho - see page 243D. A judge would normally only find that the burden had been shifted on the basis of expert evidence exposing the illogicality in question….I am prepared to concede that in principle it is open to a judge, if any facts in the case which depend on specialist expertise are sufficiently clearly established and are uncontroversial, to use his or her own judgment and reasoning to say that the evidence before him about the reasonableness of a clinical decision simply does not make sense. That is, it goes without saying, an exercise to be undertaken with the utmost caution in a specialist field but, as I say, I am prepared to accept it is not inappropriate in principle.”
“…Liability of other medical and quasi-medical professionals Nursing staff, as well as medical practitioners, owe a duty of care to the patients in their care, though there are few decided cases on the matter. Nevertheless, the principle relating to the liability of doctors applies equally to nurses. The nurse must thus attain the standard of competence and skill to be expected from a person holding their post. The more skilled the job undertaken by the nurse, the higher the standard of care expected.” • Miss Gollop QC cited passages from two authorities: In Wilsher v Essex AHA[1987] QB 730 @ 751, Mustill LJ said: “For my part, I prefer the third of the propositions which have been canvassed. This relates the duty of care not to the individual, but to the post which he occupies. I would differentiate "post" from "rank" or "status." In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated”
“25. The particular role performed by the individual concerned will be likely to have an important bearing on the question of breach of the duty of care. As Mustill LJ explained in Wilsher v Essex Area Health Authority[1987] QB 730 , 750–751, the legitimate expectation of the patient is that he will receive from each person concerned with his care a degree of skill appropriate to the task which he or she undertakes. A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”
“when to weigh and measure length ➢ Babies should be weighed in the first week as part of the assessment of feeding and thereafter as needed ➢ Length or height should be measured whenever there are any worries about a child’s weight gain, growth or general health ➢ If parents wish, or if there is professional concern, babies can be weighed at 6-8 weeks, 12 and 16 weeks… When to measure head circumference Head circumference should be measured around birth, at the 6-8 week check and atany time after that if there are any worries about the child’s head growth ordevelopment … Assessing weight loss after birth Some degree of weight loss is common in the first week but 80% of infants will have regained this by 2 weeks of age. Recovery of birth weight by 2 weeks suggests that feeding is effective and that the child is well … What do the centiles mean? ➢ The new charts indicate a child’s size compared with children of the same age and maturity who have shown optimum growth. The chart also shows how quickly a child is growing. ➢ The centile lines on the chart show the expected range of weights and heights (or lengths); each describes the number of children expected to be below that line e.g. 50% below the fiftieth, 91% below the ninety-first. ➢ Children come in all shapes and sizes, but 99 out of 100 children who are growing optimally will be between the two outer lines (0.4th and 99.6th centiles); half will lie between the 25th and 75th centile lines. ➢ Being very small or very big can sometimes be associated with underlying illness. There is no single threshold below which a child’s weight or height is definitely abnormal but only 4 out of 1000 children who are growing optimally are below the 0.4th centile, so these children should be assessed to exclude any problems. Those above the 99.6th centile for height are all almost always healthy stock. If weight is above the 99.6th centile, calculate body mass index (BMI)… also calculate the BMI for the weight and height centiles appear very different. What is a normal rate of weight gain and growth? ➢ Babies do not all grow at the same rate, so a baby’s weight often does not follow a particular centile line, especially in the first year. Weight is most likely to track within one centile space (the gap between two centile lines – see the diagram on page 10) … ➢ Head circumference centiles usually track within a range of one centile space. Afterthe first few weeks a drop or rise through two or more centile spaces is unusual (fewerthan 1% of infants) and should be carefully assessed…”
“if the point is within ¼ of a space of the line they are on the centile, e.g. 91st If not they should be described as being between the two centiles: e.g. 75th-92nd A centile space is the distance between two of the centile lines, or equivalent distance if midway between centiles…”
“1. Purpose … The Guidelines will support the delivery of the Current Core Health Visiting Programme and the revised responsibilities reflected in the Healthy Child Programme (DOH 2009 HCP) … 2. Introduction The Healthy Child Programme offers every family a programme of screening assessments, the opportunity to receive the national immunisation programme, developmental reviews, and information and guidance to support the parenting and healthy choices … … The Health Visitor Implementation Plan 2011-2015 … document sets health visitor centre stage and • ‘re-affirms health visitors as the key professionals in publichealth delivery’. … The Leicestershire County and Rutland (LCR) Health VisitingService is required to co-ordinate the HCP to children andfamilies who are registered with NHS LCR General Practitioners, through Children Centre networks … … Through the delivery of the one targeted antenatal contact and the five universal postnatal contacts the health visiting service will deliver the national priorities at a local level. … (Page 6) 4. Roles and responsibilities The Named Health Visitor is responsible for ensuring that theHCP (Healthy Child Programme) is offered to all children andfamilies within Leicestershire County and Rutland. The HV(health visitor) is responsible for and coordinating the deliveryof this programme and any actions that are required as a result ofthat contact. From the first contact with the family during the initial visit …the Named Health Visitor is the accountable practitioner. This accountability remains with the Named Health Visitor untileither: • the child starts school • change of general practitioner The Named Health Visitor remains accountable for the delegatedwork undertaken by members of Health Visiting Team, ensuringthat the work is appropriate for the competencies of the teammember to whom the work is delegated … Within a corporate team a second health visitor may take responsibility for assessing and co-ordinating a specific episode of care. E.g. a health visitor who undertakes the weighing of a child during a baby clinic is accountable for that episode of care, but the overall responsibility of the case remains with the Named Health Visitor. This person should ensure that the delegation of work is to a team member with the appropriate skills to deliver, and also that a robust system is in place for supervision and guidance as needed… Any contact must be documented within the National Personal Child Health Record (PCHR/red book) and Leicestershire County and Rutland Health Visiting electronic records system as appropriate in line with the current record keeping policy. … Community Nursery Nurses (CNN) are not qualified or registered nurses. They have undertaken a national recognised nursery nurse qualification to a minimum of level three. They work within a health visiting team, undertaking many aspects of the healthy child programme which have been delegated to them by the Named Health Visitor (Community Nursery Nurse Competency framework and guidelines for practice 2010).”
“100 percent of families will be offered a 1:1 review by the Health Visitor within the home or local community setting when their baby is 6 weeks old.”
“General wellbeing of the baby • The 6 week HCP examination is undertaken by the GP • If not already undertaken by the GP naked weight, head circumference (HC) should be plotted on the WHO centile chart in PCHR • Parent/carer to be reminded to attend this examination, if not already seen by GP.”
“• To ensuring growth along expected centile lines in relation to growth potential and earlier growth measurements • This weight is either undertaken by the GP as part of this examination or the Health Visitor when they undertake the maternal health assessment. If the baby is handled by the Health Visitor muscle tone including head control should be assessed and documented.”
“• If concerned regarding weight gain further HV assessment • If concerned re rapid head growth consider hydrocephalus/cranial stenosis. Urgent verbal/written liaison with GP should be made for assessment • Any concerns discussed verbally or via written/IT format with GP format.”
“Core content General wellbeing of the baby • If there are any professional or parental concerns about the child’s growth or development an assessment should be carried out by the Name Health Visitor. This should include checks on the following: ◦ Naked weight undertaken ◦ Child handled during this assessment to assess muscle tone/posture oDevelopment review as in PCHR Rationale/evidence • to ensure growth along expected centile lines in relation to growth potential and earlier growth measurements. • to ensure developmental milestones are achieved. If action required • Referral back to Named HV for further assessment. If weight has deviated above or below two centiles since birth review weight within two weeks or earlier using professional clinical judgment. Further guidance if weight deviation from expected centile to be given with Healthy Weight Pathways.”
“ Page 184. Occipito-frontal head circumference (OFC) Reasons for measuring the head circumference The routine measurement of head circumference is intended to aid the detection of two groups of disorders - those characterised by a large head, and those characterised by a small head. Conditions with enlargement of the head include hydrocephalus, subdural effusion and haematoma, and a number of less common conditions associated with dysmorphic syndromes etc. Hydrocephalus characterised by a head measurement that is crossing centile lines upwards, together with the well-known features of suture separation, tense fontanelle, prominent veins, downward gaze, irritability, and sometimes developmental abnormalities. Early treatment for hydrocephalus is desirable, though there is no conclusive evidence that it improves outcome. A much more common cause of head enlargement is a familial large head, in which the growth line may cross centiles but the other symptoms are usually absent and a close relative, often the father, also has a large head circumference … … Page 185. Screening and monitoring A head circumference measurement in the neonatal period is potentially useful for two reasons. The first, if the measurement is abnormal at this time, the problem is clearly of antenatal or intrapartum origin. Second, a baseline measurement may occasionally be useful if there is thought to be rapid head growth in the early weeks of life. However, the measurement is of little value if it is taken while there is still marked scalp oedema or moulding. A further measurement at the 6-8 week measurement is usually recorded. … Page 186. Recommendations • Staff training in measurement technique,the interpretation of growth charts …, normal growth and its variants … is vital … Page 187-188. Head circumference • The head circumference should be recorded before discharge from hospital following birth. This is an important measurement and should be performed and recorded carefully……. • Head measurement should subsequently be undertaken at approximately 6-8 weeks of age. It should be plotted on the chart and also written in figures. If there is no concern at this time no further routine measurements are needed, but the OFC should always be measured and recorded if there is any concern about a baby’s growth, health, or development. • If the growth line is crossing centiles upwards and the child shows symptoms or signs compatible with hydrocephalus or other abnormality, specialist opinion is essential. If there are no accompanying symptoms or signs, two measurements over a four-week period are acceptable. Beyond this time limit, a decision must be made to either accept the situation as normal or to refer the child for specialist examination. • There is no justification for repeated measurements spread over many months, a practice which is to be deplored because it creates excessive anxiety … • These apparently straightforward monitoring procedures must not be regarded as simple screening tests. Skill and judgment are required in deciding how to interpret the measurements and no single pass-fail criterion can be proposed. Page 188-189. 13 Page 189. Audit The quality of measurement and charting, and the action taken when abnormality is suspected, should be reviewed … the number of new cases detected by monitoring, their subsequent management, and the reasons for any delay in diagnosis are suitable topics for audit. Growth clinics should monitor their own performance in collaboration with district and tertiary services.”
“The crucial agreements between the neurosurgeons are (i) that XM’s HC probably reached the 75th centile line at 8-9 weeks of age, hence by no later than28 August 2012 ; and (ii) that XM’s HC probably crossed the 99.6th centile line during October 2012”
‘could indeed have been below the 91st centile at his sixteen-week examinations without jeopardising the known train of subsequent events’
“Do you think CSF production was constant and incremental at all times from shortly after birth until treatment?”
“If there were a strong correlation of HC with height or weight, reference charts for HC for height or weight could provide a tool to better interpret HC in short or tall children, and possibly enable early diagnosis of growth disorder.”
“a normal growth curve is one that always runs roughly on/parallel to one of the printed centile lines.”
“a normal growth curve is one that always runs roughly on/parallel to one of the printed centile lines.”
“breast/bottle feeding – well – Aptamil. Vocalising, visualising, response to sound, good head control, lifts head in prone, moves arms and legs freely, follows …”
“O/E – weight (22A, 6kg, 13lb 4 oz) – breast and bottle feeding well… Dad observed handling baby with care and confidence. Vocalising, following slowly, asked dad to bring to clinic to review following in 1/12, response to sound. Moves arms and legs freely, good head control, attempts to lift head in the prone.”
“It would have been inconceivable that I would not have noticed an extremely large head above the 90th centile”
“The head circumference should be recorded before discharge from hospital following birth. This is an important measurement and should be performed and recorded carefully…..”
“Although the guidelines regarding head circumference monitoring are generally accepted in the UK, little is known about the accuracy, value or optimal timing of regular head circumference measurement or the relative merits of different referral criteria.” -implied that the rules were not as concrete in relation to head circumference measurements as Mrs Waters was suggesting. She did not agree and said that this passage was under the sub-heading “Research”
“Head circumference centiles usually track within a range of one centile space. After the first few weeks a drop or rise through two or more centile spaces is unusual (fewer than 1 percent of infants) and should be carefully assessed.”
“A major difficulty is the obvious fact that at any given age a large baby is likely to have a larger head than a small baby, and vice versa. It is necessary, therefore, to relate the size of the head to the size of the baby – and a convenient index of the size of the baby is his weight…one can then determine whether his head size corresponds with (i.e. occupies the same relative centile position as) his weight… Summary The measurement of the maximum head circumference must be part of the routine examination of any baby. It must be related to the size of the baby, and the weight is a good index…”
“Healthy children may be on a different length/height centile from the weight centile, although the two are usually similar.”
“To ensure growth along expected centile lines in relation to growth potential and earlier growth measurement.”
“5. Hydrocephalus is rare. Hydrocephalus without an obvious visual indicator such as frontal bossing or bulging eyes is also rare. I do not think it would be reasonable to expect a health visitor to diagnose hydrocephalus from looking at XM’s head alone. 6. However, I do think that the reasonable member of the health visitor team looking at XM without clothes on should have been able to detect that something was not right with his overall proportions and to act on that assessment.”
“the HCP is a clinical and public health programme led by, and dependent on health professionals. Effective leadership is required to ensure that the various practitioners contributing to the HCP communicate with one another and provide a holistic, co-ordinated service tailored to the local needs. It is recommended that responsibility for co-ordinating the HCP to a defined population at children centre and general practice level should rest with the health visitor…”
“regardless of the health care professional’s qualifications, background and experience, the standard, quality and content of the examination should be consistent throughout the UK (DH 2000).”
“2 whether an increase in head circumference from 25th to 50th centile over a 4 week period represents a departure from the expected rate of growth i) The experts state that usually one expects the rate of growth to roughly follow the same trajectory and therefore be on or parallel to a centile line ii) Doctor Bint states that movement from the 25th to the 50th centile line in 4 weeks is therefore not an expected rate of growth and is more growth than one expects. Whether it was significant or not would depend on a third measurement and what centile trajectory that third measurement generated. iii) Doctor Bracey considers that in 2012 some GPs would consider this rate of growth to be a significant concern but that there would be other GPs who would not consider it to be significant in view of the fact that the head circumference was still only on the 50th centile. This is also given that the 2009 Royal College of Paediatrics and Child Health Advice on plotting and assessing infant and toddler growth was that if there is a fall or rise through two or more centile spaces, the child should be carefully assessed. iv) Doctor Bint simply points out that a GP won’t know if this trajectory is heading towards crossing a second centile without a further measurement in around 4 weeks.”
“Community Nursery Nurses (CNN) are not qualified or registered nurses. They have undertaken a national recognised nursery nurse qualification to a minimum of level three. They work within a health visiting team, undertaking many aspects of the healthy child programme which have been delegated to them by the Named Health Visitor (Community Nursery Nurse Competency framework and guidelines for practice 2010)”
“There are no reasons why we don’t do a lot of things but that’s not the basis of NHS practice – we focus on things that make a difference.”
“… I do think that the reasonable member of the health visitor team looking at XM without clothes on should have been able to detect that something was not right with his overall proportions and to act on that assessment.”