May 14, 2019

Successful NHS defence provides useful learning points

A recent judgement[1] has provided a useful overview of the crucial importance of expert evidence in cases of clinical negligence, whilst also providing a reminder of the limited weight which can properly be attached to a critical internal investigation.

Factual background

The claimant's mother first presented to triage at 17:55 (designated 'the first admission').  Maternal observations were reassuring as was the fetal heart rate; the mother was assessed as being in the latent phase of labour and advised to go home to await developments.  The claimant's mother returned at 20:41 the same day ('the second admission').  By 20:45 she was on the labour ward.  Matters progressed quickly and at 20:57 the claimant was born in a poor condition.  He has since been diagnosed as suffering from cerebral palsy secondary to hypoxic ischaemia caused by cord occlusion.

Allegations of negligence

The claimant's case in relation to the first admission was that the assessment was cursory, and the advice to go home inappropriate; instead his mother should have been admitted for a more prolonged period of assessment.  In response, the defendant's position was that the assessment was comprehensive and clearly established that the mother was in the latent phase and thus in accordance with both the local and the NICE guidelines, it was reasonable to recommend that she return home.  As for the second admission, it was said that there was a negligent delay in auscultating the fetal heart, when an episiotomy should also have been performed which would have expedited delivery thereby avoiding damage.  Again the defendant's position was simply that the care had been appropriate and there was nothing in the maternal presentation to warrant urgent intervention.   

HHJ McKenna had no difficulty in preferring the evidence submitted on behalf of the defendant and the claimant's case was dismissed.

Although to an extent fact specific, it is the reasons given for that dismissal which make the case of wider interest.

When to abandon a weak case?

The allegations relating to the second admission were jettisoned at trial, but only after the evidence had been heard.  In other words, the claimant's barrister must have taken the decision that the position was so hopeless that that aspect of the case had no prospect of success.  However, as the judgment noted, this "left the claimant pursuing claims in …respect of the first admission relying on the same experts who had supported the claimant's case in respect of the second admission but where a decision had been taken that that claim was not sustainable on the evidence".  Inevitably, this undermined the credibility of the claimant's experts.

Expert evidence

The judgment is also a useful reminder of the importance of instructing an expert who has experience which is directly relevant to the case, and of ensuring that the expert evidence served is impartial and addresses all the factual evidence and not just the evidence submitted on behalf of the party on whose behalf the expert has been instructed.  The expert's obstetric expert, Mr Brunskill, fell foul of the first requirement. Unlike the defendant's expert Mr Tuffnell, who had directly relevant experience of working on a busy labour ward, Mr Brunskill was exposed as an expert with a specialist interest in gynaecological oncology and with very limited experience of running a labour ward.  The claimant's midwifery expert, Ms Reading, fell foul of the second requirement.  Her evidence was criticised for failing to acknowledge areas of factual dispute, for being overly partisan, and for expressing opinions out with her area of expertise, and with the benefit of hindsight.

Root Cause Analysis / Serious Incident Report

Given the poor outcome of the delivery, the Trust had conducted a root cause analysis which had identified some areas of concern in the care provided. Predictably, the claimant's team placed heavy reliance upon these concerns.  However, the Judge found this to be "misguided".  He noted that the purpose of such reports was to identify "any shortcomings in practice and to improve standards of best practice". The prejudicial weight of an unhelpful internal investigation is a feature with which practitioners of clinical negligence will be all too familiar and it is useful to be reminded that such reports are produced for very different reasons and should not be deemed determinative of negligence even if that is precisely the significance placed upon them by the claimant.

[1] PXW & Kingston Hospital NHS Foundation Trust [2019] EWHC 840 (QB)