Judgement has been handed down (3 July 2018) by HHJ Robinson sitting in the Sheffield County Court in TL v East Kent Hospitals University NHS Trust , following a four-day trial looking at the guidelines around the diagnosis and management of pre-eclampsia. Clyde & Co were instructed by NHS Resolution on behalf of the Trust.
The claimant, TL, had presented on 1 November 2012 late in her first pregnancy having been referred by her GP with headaches, hypertension and trace protein in urine. Sequential blood pressure readings were obtained in hospital, together with laboratory protein/creatinine levels, and the claimant was booked for induction of labour on 5 November 2012.
She in fact re-attended on the morning of 4 November 2012 with early signs of labour. Her blood pressure was normal and with no proteinuria. Contractions settled and the claimant was sent home. She re-attended that same night as she had not felt the baby move; her son was delivered still-born the following day.
The claim alleged that the Trust should have diagnosed pre-eclampsia on 1 or 4 November 2012, and admitted the claimant for delivery of her son. Breach was denied, although it was admitted that the baby would have been born alive had he been delivered by the morning of 4 November 2012.
The judge found that the proper application of guidelines from the National Institute for Health and Care Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG) supported the decisions made by the clinicians on both attendances. On neither occasion was the definition of pre-eclampsia met; the claimant's argument that separate uric acid testing (which was abnormal) was sufficient to make the diagnosis was dismissed. The judge accepted the defendant's expert opinion that uric acid testing was not a diagnostic test, rather one that had been used in the past to assist in the management of the condition (but at the index time and to date, was not clinically useful). The claimant's expert's assertion that, despite agreeing that the strict definition in the guidelines was not met, a diagnosis of pre-eclampsia should nevertheless have been made was described as unreliable and premised on a natural desire to assist the claimant in the tragic circumstances of the case.
The judge further dismissed a novel argument that the claimant's psychiatric injury was aggravated due to perceived deficiencies in the subsequent root cause analysis (RCA) report. The claimant said that the fact that the RCA did not consider her son's death as being due to pre-eclampsia (or, indeed, did not indicate that there was pre-eclampsia at all) exacerbated her grief. Having found that the contemporaneous statements underlying the RCA clearly had pre-eclampsia in mind, the claim failed without the judge having to consider whether any duty of care was owed at all when compiling a RCA report.
This was a tragic case, and the litigation cannot have assisted the claimant. It does highlight the difficulty in pursuing claims where contemporaneous NICE and RCOG guidelines clearly support the care provided; there was no factor here which would have justified a departure from those guidelines.
We now proceed to costs recovery: the judge noted that, where the evidence was so clear, it was generous in the extreme for the defendant to have made a drop hands offer and he declined to attach any significance to the fact that the defendant declined more formal ADR.