Paper Delivered To International Conference At the Coombe Hospital, Dublin, 13 May 2008 by Augustus Cullen Law
Cerebral palsy actions are probably the most tragic, emotional, distressful and complex type of medical negligence litigation that come before the Courts. We often read newspaper headlines highlighting multi-million Euro awards and hear statements often from doctor’s representatives emphasising the financial cost of birth injury claims usually mentioning that obstetricians amount to only 5% of the total number of hospital consultants although birth injury compensation amounts to 80% of the total amount paid out for all medical malpractice claims. These statements, although undoubtedly accurate mask the essential truth. There are very good and logical reasons why the awards are so high for birth injury claims. Persons with Cerebral Palsy are now living considerably longer, the cost of care has increased dramatically, way in excess of the CPI, sophisticated equipment, aids, appliances and assistive technology which is expensive is now available to improve the child’s quality of life, the cost of suitable housing and its adaptation have also increased dramatically. All these factors have combined to increase awards to the level needed to properly compensate and care for an injured Plaintiff who is suffering from Cerebral Palsy. The usual award in an Irish Cerebral Palsy case will not exceed 4.5 million Euro and that once off payment has to last a lifetime. However, if you believe that it is a lot of money it is worth mentioning that in recent months a UK Court awarded 15 million Euro to an Irish citizen resident in the west of Ireland who suffered her birth injury in a UK maternity unit.
To my knowledge there was never a single birth injury/cerebral palsy action heard before the Irish Court until the landmark decision in* Dunne –v– National Maternity Hospital (1988).* Over the past 20 years since Dunne there have been perhaps a dozen cases each year brought before the Courts concerning Cerebral Palsy/birth injury. 90% of these cases are settled, many on a compromise basis to reflect the risks in the particular case of winning or losing the claim. I could only find a total of 5 cases which were fully fought on the issue of liability from start to finish. I will deal with each of them in some detail below as I hope that delegates will find them of particular interest in their every day clinical practice.
1. Dunne –v– National Maternity Hospital and Jackson (1989 IR P90)
As mentioned above this was the very first birth injury case to come before the Courts. It led to an Appeal to the Supreme Court and the landmark Judgment of *Finlay J *summarised below.
The Plaintiff was born on the 20 March 1982 at the First Named Defendant hospital. The Second Named Defendant was her private obstetrician. She was a multi-gravid and was expecting twins and this had been diagnosed early in the pregnancy. She went into labour at 38 weeks gestation. This was diagnosed by her general practitioner in Bray at 9am. She was 2-3cm dilated. She was admitted to the hospital at 11.15am. At 12.10pm the Sister in charge telephoned the Second Named Defendant to advise that her waters had been ruptured and Grade 1 meconium was draining. Auscultation was taking place by pinard stethoscope. At 1pm the mother experienced an episode of tumultuous foetal movement lasting 15 minutes which was extremely distressing for her which was notified to the midwife who took no further action. At 2pm the Sister in charge telephoned the Second Named Defendant reporting that labour progress was very slow and that dilatation was still only 3cms but didn’t report the tumultuous foetal movements. He gave a direction that she should walk the hospital corridor to expedite delivery. The mother did this for 2 hours between 2pm and 4pm. During this two hour period the Second Named Defendant accepted that he stayed at home watching television but insisted that had he been informed by the nurse/midwife that his presence had been requested by Mrs Dunne or had he been informed of the tumultuous movements at 1pm he would have come immediately.
At 4pm the Sister in charge telephoned the Second Named Defendant again to report that progress was still slow. He directed that an Oxytocin drip be administered and asked that the assistant Master should be asked to see her. The assistant Master examined the mother at 4.20pm. At that stage dilatation was 5cm. He noted that the membranes had apparently re-sealed and he again punctured them finding Grade II meconium. As a result he discontinued the Oxytoxin drip and carried out a foetal blood sample on the scalp of the leading twin. This was normal. He then attached a scalp clip to the leading twin. Most of the CTG was lost. The only available CTG covered a period of 10 minutes immediately before delivery and was abnormal. Full dilatation occurred at 5.08pm and the Plaintiff who was the leading twin was born naturally at 5.15pm. The Second Named Defendant arrived just as the birth was taking place. The second twin was delivered minutes later but was stillborn and slightly macerated. This had not been detected prior to delivery. The Plaintiff (twin 1) was born in poor condition with low 1+5minutes APGAR scores, required ventilation, suffered severe neonatal encephalopathy and presumed cerebral oedema in the newborn period and went on to develop spastic quadriplegic Cerebral Palsy.
Crucially, the Defendant hospital did not realise that the second twin had died and had probably died before admission to hospital. Before the commencement of the Trial (which was in the era of Trial by ambush with no pre-Trial disclosure of expert evidence), the Plaintiff did not know that the Defendant hospital was going to seek to defend their failure to realise that the second twin had died on the basis that they were following a “general and approved practice” within the hospital of never seeking to monitor the heart beat of the second twin. The hospital contended that this was a reasonable practice on the basis that there were technical difficulties of identifying the second heart and until twin 1 was delivered in one sense the heart rate of the second twin was irrelevant.
When this evidence emerged during the cross examination of the first expert witness for the Plaintiff, there was great surprise. The Plaintiff’s expert obstetricians maintained that they had never heard of the existence of such a practice and in effect also argued that if there was such a general and approved practice within the profession it had “inherent defects”. It was the Plaintiff’s case that had the Defendants realised that the second twin had died the labour would have been treated as extremely high risk and the mother would have been delivered by caesarean operation immediately and consequently the injury to the leading twin (the Plaintiff) would have been avoided or materially lessened. The Plaintiff argued that he had suffered intrapartum asphyxia over a period of hours during labour. The Defendants argued that regardless of whether or not there was any lack of care, on causation grounds the Plaintiff’s case should fail. They argued that the cause of the death of the second twin and the brain damage to the Plaintiff was an acute twin to twin transfusion that had occurred shortly before birth i.e. approximately 24 hours before birth. The Plaintiffs disputed the occurrence of such a phenomenon and argued that the pathological evidence to establish same was missing or very tenuous.
Findings of the High Court and Supreme Court:
The action which was tried before a Jury (the last Jury ever to hear a personal injury in Ireland) and lasted 14 days. Much of the Trial concerned disputes between paediatric experts as to the cause and timing of the brain insult. The Jury found in favour of the Plaintiff and an award of 1million pounds plus costs were made which was then a record. The Defendants appealed and a new Trial was ordered. The Supreme Court held that the Trial Judge had mis-directed the Jury on the issue of whether or not the hospital’s stated policy of only monitoring the heart beat of the leading twin was in fact a “general and approved practice” in the profession. The case went to a re-trial and on the 16th day of the re-trial it settled on a compromised basis for approximately two thirds of the full value of the case. Judgment was given against the hospital only and the action against the Second Named Defendant was dismissed on consent. The case settled immediately after 12 other women who gave birth to twins in Holles Street in the years before and the year after Mrs Dunne’s delivery all gave evidence to the effect that in their labours, the heartbeats of both twins were monitored and thus serious questions were raised on the hospital’s Defence.
The Supreme Court’s Judgment summarised and clarified the legal principles which the Courts should adopt in all cases of medical malpractice and since then they have become known as the ‘six Dunne principles’ and are as follows:
- The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
- If the allegation of negligence against the medical practitioner is based on proof that he has deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification.
- If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the Plaintiff establishes that such practice has inherent defects which ought to be obvious to any person given the matter due consideration.
- An honest difference of opinion between doctors as to which is the better of the two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
- It is not for a jury (or for a Judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable. But their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the carful conduct of a medical practitioner of like specialisation and skill t that professed by the Defendant.
- If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general or approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.
- “General and approved practice” need not be universal, but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications,
- Though treatment only is referred in some of these statements of principle, they must apply in identical fashion to questions of diagnosis.
Purdy (an infant) –v– National Maternity Hospital, O’Driscoll, Sheridan-Pereira, Skelly, Strong, Ryan, Fenton (2003) IE SC 7
In November 1977 the Plaintiff’s mother aged 36 attended the Defendant Hospital at 27 weeks gestation because of an insubstantial ante-partum haemorrhage. She was detained briefly for observation but with no further bleeding was allowed home. She attended again on the 3 February 1978 as a result of which she was prescribed antibiotics for bronchitis. On 28 February 1978 at 10am Mrs Purdy was again admitted at 33 weeks gestation because of a substantial but painless ante-partum haemorrhage. The Third Named Defendant, then a recently appointed junior doctor diagnosed placenta privia. This was confirmed at 10.30am by the last named Defendant, then the Assistant Master at the hospital.
The Assistant Master considered that the diagnosis of placenta privia needed confirmation by ultrasound. However, he did not order cross matching of Mrs Purdy’s blood which would be essential if a caesarean section was to be performed. As can be appreciated the Trial of the action took place 25 years after the events of labour and therefore no record of Mrs Purdy’s condition between 10am and 16.20hrs was available at the Hearing as all the relevant nursing notes and other records for that period were lost. Some clinical notes were still available and they record her as having suffered a further painless substantial ante-partum haemorrhage at 16.20hrs. At that stage the Assistant Master then ordered an IV drip and 4 units of blood to be cross matched and directed that a caesarean section should be performed if the bleeding continued. At that time the blood loss was estimated to be 4,500mls.
The Assistant Master went off duty at approximately 16.30hrs and was replaced by the Fourth Named Defendant who was also an Assistant Master. At 16.50hrs Mrs Purdy had a further bleed of approximately 300mls and was noted as looking pale and needing blood. The second duty Assistant Master directed that a lower segment caesarean section should be performed as soon as blood became available.
At 18.00hrs the lower segment section was performed and the baby was delivered with some difficulty with the use of forceps and the placenta was in the left anterior lateral position. A further blood loss, this time of 300mls was recorded. The Plaintiff’s birth weight was 2.77kgs and his head circumference was 35.5cms (normal for this gestation). His condition at birth was poor and he required resuscitation. His APGAR score was 1 at one minute and he was suffering from respiratory distress syndrome and went on to have a stormy neonatal course. He was subsequently diagnosed as suffering from Cerebral Palsy. There was doubt about precisely how long he needed to be intubated at birth because of the missing records.
As a period of 25 years had elapsed between the birth and the Trial and given the loss of many of the medical records and notes the Trial Judge acceded to a Defence application to the effect that the Defendants were not in a position to properly defend themselves against many of the allegations of negligence and therefore following the Supreme Court’s decision in *Toal –v– Duignan & Others (1989) ILRM 135 *and other cases the interests of Justice required the striking out of parts of the Plaintiff’s claim. However, the Plaintiff was allowed to pursue the following allegations of negligence and breach of duty against the Defendants and they were:
- The negligence of the hospital and/or the Assistant Master in failing to have Mrs Purdy’s blood cross matched and the requisite supplies ordered at 10.30am
- The failure of the Assistant Master to carry out a caesarean section at 16.20hrs
- The failure of the second Assistant Master to carry out a caesarean section at 16.30hrs or shortly thereafter
- That the second Assistant Master had been negligent in carrying out an unnecessary vaginal examination immediately prior to the performance of the caesarean section thereby allegedly wasting further valuable time.
The Plaintiff’s case on causation was that the brain injury occurred in the last 20 minutes or so prior to delivery during a continuing substantial haemorrhage. This was vigorously disputed by the Defendants causation experts and as there was an absence of any notes during the last 20 minutes of labour indicating whether or not such a haemorrhage occurred.
Findings of the High Court:
- The Assistant Master was mistaken in his belief that the policy of the hospital was not to cross match bloods unless the mother as actually bleeding or that a diagnosis of placenta privia had been confirmed by ultrasound scan. However, the evidence was that the practice within the hospital was working satisfactorily and therefore he was not negligent in following the actual practice.
- The hospital was negligent in:
- Failing to communicate what its actual correct practice was to the Assistant Master and/or
- If it was not hospital policy in failing to correct the Assistant Master’s practice which he said he had been carrying out for two years
- The Court dismissed the claims for negligence against both Assistant Masters arising out of their alleged failures to carry out a caesarean section at either 16.20 or 16.30hrs.
- The Court found that a caesarean section should have been commenced at 16.50hrs.
- As to causation the Court accepted that the injury occurred as a result of the last substantial bleed which occurred prior to birth. Experts on behalf of the Plaintiff claimed that there was a continuing bleed during the final 20 minutes i.e. between 17.40 and 18.00hrs, whereas the Defence expert (Dr King), was of the view that the damage occurred by and/or during the last recorded bleeding namely 16.50hrs. The Court concluded that, as there was no recording of a hidden bleed in the notes or observed by the obstetrician following the last vaginal examination at 16.50hrs, the Plaintiff had failed to establish that the injury occurred during the last half hour prior to delivery and therefore failed to establish that any negligence caused the injuries which the Plaintiff suffered.
- Crucially the Court accepted that the available sparse notes regarding the resuscitation at birth indicated that the Plaintiff only needed resuscitation for approximately a minute after birth and this was totally inconsistent with a major insult occurring very shortly before birth.
Findings of the Supreme Court on Appeal:
- On the Appeal the central issue to be determined was whether there was credible evidence which would support the Trial Judge findings that the damage suffered by the Plaintiff occurred during the earlier recorded bleeding and that they did not occur during the final 20 minutes prior to delivery at 18.00hrs. The Supreme Court was satisfied that there was such credible evidence.
- The Court held that the experts on all sides were agreed that the condition of the baby immediately after delivery was of critical importance in determining the timing of the insult. As there were many references in the notes to the baby having been intubated for only one minute after birth and the only reference to the necessity for longer intubation was in the discharge letter, the Trial Judge was perfectly entitled to take the view that the early neonatal records were more consistent with the Defence theory of causation.
- The Supreme Court accepted that the Trial Judge was clearly entitled to prefer the view of the Defence causation expert (Dr King) that the damage occurred during the course of a bleed well before delivery and that in the absence of any indication of any bleed subsequent to the ones observed and recorded at 16.20 and 16.50pm the more likely conclusion was that the injury had occurred during that earlier period rather than during the final 20 minutes prior to delivery.
- With regard to the allegations of breech of duty against the two Assistant Masters, there was ample evidence to support a view that attempting to perform a caesarean operation in earlier circumstances where cross-matched blood was not available would have exposed the mother to an unjustifiable risk. With regard to performing a vaginal examination in theatre before embarking on a caesarean operation there was again ample evidence that the doctor acted in accordance with a general and approved practice in performing such an examination at that stage.
This case illustrates in stark terms how difficult causation issues can be during birth injury cases and how difficult it can be for a Plaintiff to discharge the onus of proving causation.
Quinn (a minor) –v– Mid Western Health Board and Donal O’sullivan (2005) Vol 4 page 11
The Plaintiff was born at a gestational age of 39 weeks and one day on 5 May 1990 in Limerick Maternity Hospital. The Second Named Defendant was employed as the mother’s personal consultant for her ante-natal care, confinement and delivery. The Plaintiff was born with severe brain damage, developed Cerebral Palsy and on a subsequent MRI scan was diagnosed with peri ventricular leucomalaycia (P.V.L.). The Plaintiff claimed that proper obstetric care ought to have achieved delivery not later than week 35 of gestation when it was contended she would have avoided all, of the brain damage which occurred. The Defendants ultimately at the end of the Trial which lasted 17 days, admitted negligence in the management of the pregnancy and accepted that the Plaintiff should have been delivered earlier than she was. The Plaintiff’s mother was a known diabetic who had experienced episodes of poor diabetic control during the pregnancy and there was a total failure to perform any ultrasound scans in the ante-natal period. The Plaintiff was born with severe intrauterine growth restriction and it was contended that ultrasound scans and other investigations should have been performed in the ante-natal period. This would have led to delivery some time between week 32 and week 35 gestation dependent upon the nature of the evidence detected from the ultrasound scanning and foetal cerebral blood flow Doppler scanning. Delivery should have taken place whenever these tests detected significant risk to foetal health.
However the Defendants contended that regardless of any breech of duty in failing to deliver earlier, the Plaintiff’s brain damage was caused by an acute episode which occurred between week 28 and week 30 of gestation and that the outcome would not have been any different had she been delivered any earlier than she was. The Defendants case relied heavily on the results of the MRI scan and contended that the fact that the Plaintiff had PVL as shown on the scan, indicated that the insult which damaged her brain probably occurred in this period of 28-30 weeks gestation. Given the degree of growth restriction and microcephaly evident at birth the injury must have occurred in this window of 28-30 weeks gestation. Precise cause of this acute episode was not known but it was unrelated to placental insufficiency. The Plaintiff’s theory of causation on the other hand was that gradually over a period of weeks and months, starting in the third trimester the Plaintiff suffered chronic intrauterine growth restriction as a result of placental insufficiency so that by week 35 gestation, the foetal reserves were exhausted and the progressive placental insufficiency and growth restriction meant that consequential white matter brain damage caused by chronic hypoxia was inevitable
Findings Of The High Court (O’sullivan J)
Eminent paediatric experts were called on behalf of both parties. Ultimately after 17 days of Trial in the High Court, O’sullivan J held that he simply could not make up his mind as between the two hypothesis as to how or when the brain damage had occurred. On the basis that he simply could not decide between the two sets of eminent paediatric experts as to which theory/hypothesis was correct the Plaintiff had failed to discharge the onus of proof. In other words, the Plaintiff’s case failed because she failed to discharge the onus of proving on the balance of probabilities that she would have avoided her injuries had she been delivered by week 35 of gestation.
Findings Of The Supreme Court:
The Plaintiff appealed to the Supreme Court. The Appeal was dismissed by the Supreme Court. The Supreme Court again affirmed that the Plaintiff was required to discharge the burden of showing that the breech of duty (admitted by the Defendant) had in fact caused the damage and had to show that but for the breech of duty she would not have suffered the damage. The Supreme Court (Obiter) affirmed that it was not enough to show that the Plaintiff’s condition worsened during the period from the start of the difficulties until delivery, it had to be further shown that early intervention would have prevented the damage.
It is worth pointing out that at the High Court Trial the Plaintiffs did not seek to argue that the Plaintiff’s injuries had been “materially” worsened or that the Defendants negligence had “materially contributed” to the Plaintiff’s brain damage. In other words the Plaintiff ran the case on an “all or nothing basis” i.e. that delivery by week 35 would have avoided any damage. On Appeal the Plaintiff sought to further argue that the doctrine of material contribution should be applied. The Supreme Court rejected any attempt to make such an argument on the basis that the parties to litigation must bring forward their whole case and each and every point which properly belongs to the litigation in the course of the Trial and not seek to do so at a later time.
The Supreme Court affirmed the Trial Judge’s entitlement in an exceptional case not to have to make a decision on expert evidence. The Supreme Court held that the Trial Judge had to use his best endeavours to resolve conflicts of fact by deciding those issues on the balance of probabilities. However, exceptional cases could arise, of which this case was one, where it might not be possible to do so. In such cases the Trial Judge was not obliged, positively to find in favour of one version over another but might hold that the party, with whom the burden of proof lay had failed to discharge that burden.
Therefore, the Appeal was dismissed. This was a most unusual outcome but in one sense it illustrates the particular problems that birth injury litigation can pose for Judges. One would normally expect a Judge to make a decision and decide which evidence he prefers as and between different expert witnesses. It is submitted that it must be a very exceptional case where a Judge would be entitled to simply refuse to come to a decision and thereby resort to where the onus of proof lies as being the determining factor.
O’Mahony (an infant) –v– Bon Secours Hospital & Corr (2001) IE SC 62 (13 July 2001)
The Plaintiff’s mother had an uneventful first pregnancy until the final few weeks when there was indication of excessive weight gain and oedema. On Friday 8 May 1987 she attended her GP who diagnosed her with high blood pressure and protein in her urine i.e. suspected pre-eclampsia and she was advised to go straight to hospital where she was detained. The labour was induced on the morning of the 11 May 1987 and at the end of labour severe bradycardia developed. The Second Named Defendant who was the mother’s private consultant obstetrician arrived some time after the bradycardia had developed and effected the delivery of the Plaintiff by forceps. The Plaintiff was then taken to a unit called the “24 hour observation nursery” where he spent the next 19 hours. He was brought back to the mother in the post natal ward the next day and mother and baby were discharged from hospital on 15 May 1987. In February, at approximately 9 months of age, he was diagnosed as suffering from what was described as Cerebral Palsy. Some years later proceedings were instituted against the hospital and the private consultant. At the commencement of the Trial the case made of negligence against the Defendants was as follows:
- In view of the diagnosed pre-eclampsia a consultant obstetrician or registrar should have been in attendance at the birth to effect speedy delivery of the Plaintiff when the bradycardia first developed and the birth emergency first arose.
- The Second Named Defendant was not present at the commencement of the bradycardia and was not present until a significant period of time had elapsed from the onset of the bardycardia and therefore failed to detect signs of intrauterine hypoxia and to deliver the Plaintiff immediately when signs of foetal distress were first discernible.
- As a result of the system employed in the hospital a consultant obstetrician or registrar was not available to effect the delivery when the emergency began and consequently the Plaintiff suffered irreversible intrapartum brain injury before he was actually delivered.
Remarkably during a break in the Trial, without discussing the matter before hand with their lawyer, the parents decided to travel to England to have an MRI scan of the Plaintiff’s brain performed (one never having previously been carried out). As a result of the information contained on this MRI scan, an application was made on day 17 of the Trial, to amend their case to include a new claim i.e. that there was a failure to prevent, diagnose and adequately treat neonatal hypoglycaemia as the scan was consistent with such a pathology. Up to that point in the Trial none of the medical experts who had given evidence on behalf of the Plaintiff had referred to hypoglycaemia as being a possible cause of the Plaintiffs present condition. The evidence up to that time was all to the effect that the Plaintiff’s injury had been caused by an episode of intrapartum hypoxia ischemia. The Trial Judge permitted the necessary amendments to the Pleadings to be made as against the hospital but not as against Dr Corr.
In dealing with the claim against the hospital the Trial Judge then had to deal with the issue of whether the hospital caused or permitted the Plaintiff to develop either intrapartum hypoxia ischemia or neonatal hypoglycaemia or failed to take appropriate steps to investigate, diagnose and treat the condition adequately at all. The evidence subsequently given at the Trial from day 17 onwards was that the MRI scan indicated that the likely cause of the Plaintiff’s current condition was neonatal hypoglycaemia which was caused by depletion of his reserves of glucose during the period of late intrapartum bradycardia.
The Defendant’s paediatric experts said that they did not think it was possible that the Plaintiff could have suffered a hypoxic ischaemic insult prior to his birth as there was no evidence of an acute neurological syndrome or acute brain injury to account for his severe brain disorder. In particular there was no evidence of HIE in the newborn period. The record of the Plaintiff having progressed from feeding “fairly well” to “well” in the 24 hours after birth indicated that it was impossible that he could have had any form of brain injury in the hours prior to his birth as he simply wouldn’t have fed properly at all if this were the case. As to hypoglycaemia the Defence contended that to cause brain injury there would have to be symptoms of it such as stupor, coma, seizures or floppiness and there was no evidence of that. The Defendants in fact contended that the Plaintiff was not in fact suffering from Cerebral Palsy but was suffering from severe mental handicap and global developmental delay. In other words his primary problem was not a physical motor incapacity but an intellectual problem and its cause was uncertain.
*The findings in the High Court (Quirke J) *was that he accepted the evidence of the Defendants paediatric experts that the cause of the Plaintiff’s injury was unknown. He did not accept the Plaintiffs experts hypothesis that the injury was caused either by hypoxia ischemia during the intrapartum period or by neonatal hypoglycaemia. He did however find that the Plaintiff’s delivery was wrongly delayed by a period of between 7 and 12 minutes and that there was inadequate nursing records in the 24 hour nursery. However he concluded that these two breeches of duty did not have a causative effect on the Plaintiffs current condition.
Findings of the Supreme Court:
The Plaintiff subsequently appealed to the Supreme Court and it re-affirmed, as it has on many occasions, that it was entirely a matter for the Trial Judge, having seen and heard all the witnesses who gave evidence, to determine which evidence he found credible and which he did not. Those are findings which generally speaking an Appeal Court cannot set aside.
v National Maternity Hospital (unreported) March 2008
The Plaintiff was born at 8.03hrs on 26 December 2001 at full term. He was born in very poor condition and had APGAR of 1 at 1 minute, 4 at 5 minutes, 4 at 10 minutes. His initial heart rate was less than 60. He required extensive resuscitation. He had a cord Ph of 6.8. He had severe HIE diagnosed in the first days of life. MRI scan damage was consistent with acute hypoxia ischemia. He has severe quadriplegia Cerebral Palsy.
In essence the Plaintiff’s case was that the midwives responsible for the Plaintiff’s labour failed to properly monitor that labour and in particular failed to heed the abnormalities on the CTG trace which was running for the 7 hours approximately prior to delivery. The Plaintiff submitted that the abnormalities on the CTG trace were such that the midwives should have turned off the oxytocin and called the duty registrar at 06.50hrs. The oxytoxin was in fact not switched off until 07.15hrs at the earliest and the Plaintiff claimed that the duty registrar was not in fact called until approximately 07.30hrs and didn’t arrive until shortly after 07.30hrs. On the Plaintiff’s case therefore there was a negligent delay in switching off the oxytocin of 25 minutes and a negligent delay in calling the doctor of approximately 40 minutes. It was effectively a common case between the parties that there was a dramatic worsening of the CTG pattern from 07.11hrs and the Plaintiff sustained his brain injury over a period of approximately 33 minutes between 07.30hrs and delivery at 8.03hrs. The Plaintiff further contended that there was evidence of hyperstimulation of the uterus manifest on the tocograph trace from approximately 06.35hrs which was not recognised or acted upon.
The Defendant filed a full Defence and unusually pleaded that the mother was guilty of contributory negligence in failing to permit the application of a foetal scalp electrode until 01.25hrs, initially refusing the administration of oxytocin at 04.30hrs and refusing to undergo an episiotomy or forceps delivery after the registrar arrived. The plea of contributory negligence was in fact withdrawn during the course of the Trial but nevertheless the Defendant maintained that the mother’s refusal of forceps and episiotomy were an explanation for some of the delays which occurred in achieving the delivery. The Defendant maintained that there was no need to call a obstetric registrar at 06.50hrs and that it was within the scope of practice of the Senior Sister in charge of the labour ward to manage the labour herself until approximately 07.12hrs. It was the Defendants case that the midwife called the doctor at 07.20hrs and he attended by 07.23hrs. This factual dispute as to when the doctor was actually called and when he arrived was very contentious and occupied a great deal of time at the Trial.
There was also much controversy about interpretation of the actual abnormalities observable on the trace between 06.00hrs and 06.50hrs. The Plaintiff maintained that the trace got progressively worse, such that by 06.50hrs the profound variable decelerations, some of them with a late component mandated the turning off of the oxytocin and the calling of the doctor whereas the Defendant maintained that the Senior Midwife i.e. the Sister in Charge, was entitled to regard them as a sign of the foetal head descending. There was also a major dispute about precisely when full dilatation had occurred. The midwifes notes indicated that full dilatation was detected at 07.10hrs whereas another labour record (active second stage of labour) indicated full dilatation at 07.00hrs. Another item of great controversy at the Trial was the fact that the mother had prepared a birth plan based on a template birth plan downloaded from the VHI website. The second page of this birth plan indicated that she did not wish to have oxytocin, an episiotomy or a forceps delivery (all potential features of the VHI birth plan template). The midwives maintained that they were unaware of the contents of the second page of this birth plan until some time after delivery had occurred. The parents maintained that the midwives were aware of the birth plan and that the personal midwife read the contents of the second page in the presence of the parents several hours before delivery. There was further huge controversy about what was said by the midwives and registrar to the mother at the time of the instrumental delivery. The staff claimed that they gave explicit warnings about the damage to the foetus whereas mother maintained she was only advised that if she didn’t have an episiotomy she would tear and that baby “was getting tired”.
Ultimately late in the Trial (while under cross examination) the obstetric registrar admitted that he was aware at the time of his arrival in the delivery suite, that the mother did not wish to have a forceps delivery. He said he had obtained this information from the midwives at some unspecified time earlier in labour. He subsequently sought to retract this evidence. The Defendants maintained that after the registrar had arrived to effect an instrumental delivery that the mother had initially required a long explanation as to why a ventouse delivery was necessary and this held up the progress of the delivery for several minutes. This was vehemently denied by both parents.
Findings In The High Court:
As can be readily ascertained from the above summary there were a multitude of factual disputes about practically every aspect of the case and therefore it is not surprising that the Trial was lengthy. In fact the Trial lasted 55 days, dealing solely with the issue of negligence and causation. The duration of the Trial was a record for any medical negligence action in the Irish Courts. Ultimately, Judgment was delivered on 7 March 2008 by *Herbert J *and his principal findings were as follows:
- The CTG trace from the outset was suspicious and therefore the clinical team and in particular the midwives needed to be particularly vigilant in their monitoring and assessment of the CTG and other clinical signs.
- The registrar was not in fact called by the Sister in Charge until 07.30hrs or shortly thereafter (i.e. 40 minutes after he should have been called).
- The midwives knew before 06.30hrs of the contents of the second page of the birth plan and if the registrar had been called at 06.50hrs he would have discussed the controversial features of the second page of the plan with the mother.
- There were more than 7 contractions in the 15 minute period between 06.35hrs and 06.50hrs. This hyperstimulation was caused by oxytocin and resulted in the progressively worsening CTG changes evident on the trace during this period.
- The hospitals written protocol regarding excessive contraction rates/oxytocin was binding on the Sister in Charge and therefore the protocol required a doctor to be called at 06.50hrs.
- The CTG from 06.40hrs/06.50hrs onwards was pathological (he interalia, accepted the evidence of one of the Defendants obstetric witnesses) and therefore at 06.50hrs the Sister in Charge should have called the obstetric registrar and in not calling the registrar she was acting below the standard to be expected of a competent midwife.
- Full dilatation would probably have occurred by around 7am, if Sister had decided to call the doctor at 06.50hrs and if a vaginal examination had been carried out by the obstetric registrar.
- The registrar would have stayed to manage the labour if he had been called at 06.50hrs and if full dilatation had been achieved at that time he would have commenced delivery immediately.
- The catastrophic collapse in the CTG trace which occurred approximately at 07.10hrs was caused by unrelieved hypoxic stress, increasing acidosis and the inevitable exhaustion of limited foetal reserves.
- If delivery was not possible at circa 07.00hrs (i.e. if mum was still not fully dilated) the registrar would, and should, have stayed with the mother as full dilation was imminent and the trace was pathological.
- The Trial Judge rejected the evidence of the Defences other obstetric expert (Professor Turner) that it was reasonable for the Sister in Charge to adopt a “wait and see” approach at 06.50hrs. He further found that by 07.06hrs it must have been totally obvious that the CTG trace was worsening and indicating that the Plaintiff was being compromised and the registrar should have been called urgently then (if not called at 06.50hrs) the further failure to call the registrar at 07.06hrs was negligent.
- 07.11/07.12hrs – the CTG trace took a dramatic turn for the worse and it was now “grossly pathological” an emergency situation which required urgent delivery. The failure to call the registrar at that time was “completely incomprehensible, totally unjustifiable and a decision which no senior midwife acting with reasonable care would have taken”.
- Without prejudice to the Courts earlier findings that the registrar should have been called 06.50hrs and 07.06hrs, given the dire emergency at 07.12hrs, he should have been called then and would have been there by 07.15hrs at the latest had he been called.
- There was no medical reason why it should have taken any longer than 15 minutes to deliver the Plaintiff by instrumental delivery from the time that the registrar arrived and the Court accepted his evidence that he came within 2-3 minutes of being called.
- The irreversible brain damage suffered by the Plaintiff commenced at 07.30hrs and was getting exponentially worse with each passing minute up until 08.03hrs.
- But for the failure to call the registrar at 06.50hrs and/or by 07.12hrs the Plaintiff would have been born before 07.30hrs and therefore would have avoided any brain damage.
- Even if the Plaintiff had only been delivered at 07.42hrs he would have been substantially better off and less injured.
- It could not be legitimately claimed that the parents were difficult to deal with. The parents did not at any stage realise that in refusing an episiotomy that they were causing any danger to the Plaintiff and if the mum had realised there was any danger she would have immediately consented. The registrar and the Sister in Charge gave/used inadequate warnings of the imminent dangers to the Plaintiff and thus were negligent in the warnings they gave.
- The Court took judicial notice of the fact that except in the most tragic of cases, expectant mothers were extremely solicitous for the welfare of their unborn child.
The Defendants decided to appeal the Judgment of Herbert J to the Supreme Court but in the meantime the Trial Judge had decided to resume the Hearing to deal with the assessment of damages. Just before the High Court Trial was to resume settlement negotiations took place and the case ultimately settled. The parties agreed that the Judgment of Herbert J would be set aside in consideration of the Defendants agreeing to pay to the Plaintiff (without admission of liability) a sum of €4.5 million Euros compensation plus all costs of the High Court action. Accordingly, Judgment was entered for these amounts. On the basis of these payments and Judgment being entered for these amounts in favour of the Plaintiff it was agreed that the Judgment of Herbert J would be set aside and the Defendants Appeal allowed.
From the above cases, it will clearly be seen how difficult it can be for a Plaintiff to succeed in a fully contested Cerebral Palsy action particularly if the action is taken many years after the birth in question. Also establishing that the Plaintiff’s Cerebral Palsy is as a result of intrapartum hypoxia ischaemia can pose great difficulties for a Plaintiff.
In all of the 5 above cases, the Plaintiff succeeded in establishing fault or lack of care on the part of the midwives or doctors. The Plaintiffs still lost in 3 of these cases as they failed to establish that the lack of care found by the Court was responsible for the injuries/Cerebral Palsy. It is clear that Courts scrutinise very carefully and logically all birth injury claims and there is absolutely no evidence in my view that Judges are allowing their natural sympathies towards the injured Plaintiffs to affect their absolute impartiality in determining the issues. Furthermore there is absolutely no evidence that there are unstatable or vexatious claims being brought before the Courts bearing in mind that in all of the above fully contested cases the Courts made findings that there was in fact inappropriate care.
For more information, please contact: Joice Carthy, Managing Partner, Medical Negligence Group.
22 October 2008