AvMA Cerebral Palsy & Brain Injury Cases Conference 2015

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1 AvMA Cerebral Palsy & Brain Injury Cases Conference 2015 Current Issues in Cerebral Palsy & Brain Injury Claims By Simon Dyer, Barrister at Cloisters 1 Pump Court Temple EC4Y 7AA Introduction 1. This is the legal round up slot. There have been a number of interesting first instance cerebral palsy cases reported in 2014/15. The most interesting of which are Tippett v Guy s & St Thomas Hospital NHS Foundation Trust [2014] EWHC 917 (QB) and Baynham v Royal Wolverhampton Hospitals NHS Trust [2014] EWHC. I am going to focus on these two cases. 2. They are both in their own way cautionary tales for the hapless claimant lawyer. From the reports they are both cases that had to be run. I would certainly have done so. Tippett v Guy s (or why it is best not to call any witnesses ) 3. This is a fact laden case. The most interesting feature is the dispute between experts over the CTG trace, although both sides experts were purporting to use the NICE guidance, and the practice points arising from the preparation of witnesses for trial. 4. Josh suffered brain damage at birth due to hypoxia caused by cord compression. The main factual issues were; did a CTG trace between 11:08 and 11:55 show decelerations on two occasions, and who took the CTG belt off at 11:55 and left it off for a period of about 1 and half hours. 1

2 5. The answer to the first question depended on CTG interpretation. It was the defendant s evidence that the CTG was not satisfactory, but, did not show two late decelerations. Dingemans J accepted the defendant s expert evidence (Ms Fraser and Mr Tuffnell) that for there to be a pathological trace prompting emergency C-section there was a need for a deceleration of 15bpm from the baseline, but with a delay of at least 15 seconds before the FHR returned to 15bpm below the baseline. The claimant had contended (Mr Jarvis and Ms Sommerville) that the deceleration would be pathological if it failed to return to the baseline for 15 seconds. This interpretation pointed to a pathological trace in this case. The NICE guidance definition of late decelerations is transient episodes of slowing of FHR below the baseline level of more than 15 bpm and lasting 15 seconds or more. The learned judge interpreted this as meaning that the deceleration had to be more than 15bpm below the baseline for at least 15 seconds, not as the claimant contended merely below the baseline for 15 seconds. 6. The learned judge clearly found the terminology used confusing and noted that whilst the guidance referred to normal, suspicious and pathological traces, with distinctions between these categories based on features which were reassuring, non-reassuring and abnormal, experts also used terms like suspicious and sinister. He notes that whilst purporting to use the same guidance very different interpretations of the CTG were presented in evidence by eminent experts. 7. The judge found the trace was not pathological when it was on. He was not impressed by Mr Jarvis s unifying theory that because Josh suffered cord compression later the CTG trace was demonstrating early signs of this. 8. The next question was who took off the fetal heart rate monitor at 11:55. There was a clash of evidence. The claimant s mother and father said the midwife did it, the midwife said that Mr Tuffnell did it. 2

3 9. The case was hampered by the delay in obtaining witness statements. Neither the trust nor the claimants produced witness statements until 3 or 4 years after the events. Witnesses gave evidence of what they thought was likely to have happened rather than what they recalled. Given the potential importance of who took off the monitor, recollections had been warped. Furthermore the medical notes had been copied and then the originals destroyed compounding the problem of accurate timings as it became very difficult to determine which notes were contemporaneous and which were added later. 10. The Judge found that the mother had taken off the belt. Mum and Dad s evidence was all over the place on this. However, he also found that even if the belt had stayed on, the CTG trace would not have been pathological (based on D s expert s view of pathological) until the final bradycardia anyway and would not therefore have led to an earlier birth. 11. Essentially the Judge acquitted the hospital of negligence, found against the claimant on causation, but, also acquitted the claimant s mother and father of both lying (about the belt) and causing their baby s injury by removing the belt. Baynham v Royal Wolverhampton Trust (or a strong case unravels ) 12. This is a placental abruption case. It was admitted by the defendant that there was a 25 minute delay in delivery and the judge found a further 5 minutes of negligent delay in birth. 13. Causation of injury was fiercely contested. It must be understood the placental abruption can cause and did cause in this case, a reperfusion injury. The injury (intraventricular haemorrhage IVH) occurs after birth, 48 hours later, in this case. Megan was born severely acidotic but with good renal function. The question was, therefore, did the negligent delay of 30 minutes in delivery materially contribute on the balance of probabilities to the IVH? 3

4 14. It was the claimant s case that the delay had materially contributed to Megan s IVH and therefore her very severe cerebral palsy. Professor Levene argued that rather like a gas tap the longer it was left on the worse the damage, although one could not say how much worse. 15. Mr Justice Goss summarised the parties positions:- 21 There is a fundamental dispute as to the effects of the period of hypoxiaischaemia consequent upon the negligent delay in delivering Megan. It is the Claimant's case that the duration of the avoidable period of hypoxia-ischaemia i. Had an effect on the severity of the reperfusion injury and the extent of the resulting haemorrhagic venous infarction and thereby made a material contribution to Megan's cerebral palsy. It is asserted that the persistent ventriculomegaly to be seen on the neuro-imaging is not the result of the hydrocephalus but represents an enlargement of the lateral ventricles as a consequence of the loss of cerebral white matter due to PVL; and ii. Was responsible for an increase in the extent/severity of the bilateral PVL (white matter damage) and thereby increased the severity of her cerebral palsy and her neuropsychological impairments. 22 The Defendant's case is that the abruption was the priming event for the IVH, which was a reperfusion injury, and was responsible for all the consequential injury and that the delay in delivery had no material effect on the outcome. The Defendant contends that the extension of the period of hypoxia-ischaemia consequent upon the abruption cannot be shown, on a balance of probabilities, to have had any impact on the extent of the GMH-IVH or the PVL or, therefore, on the extent of the cerebral palsy or cognitive deficits. It is to this issue of causation that the great majority of the evidence in this case has been directed. It is accepted by all the experts that this is a very complex case and there is no single feature which can be said to be determinative of the central issue. 4

5 16. The claimant mounted an attack on the expertise of Dr Colin Ferrie on the grounds that his expertise was in epilepsy rather than CP cases. This was rejected by the judge. 17. Professor Levene came under attack from the defendant because his book had not mentioned a temporal aspect to the causation of IVH, whereas his evidence suggested that the period of hypoxia did have an impact on later bleeding. 18. Goss J summarised Professor Levene s evidence thus:- In evidence, Professor Levene accepted that, from the moment of the abruption, Megan lost autoregulation of her cardiac output and was thereby rendered vulnerable: it was what happened thereafter that caused the ischaemic injury. By the time of her birth, she was significantly compromised and it could not be said when her brain became irreversibly damaged. He asserted the Defendant's experts' approach was selective and ignored the significant period of bradycardia, which must have led to low blood pressure, and that white matter does not sustain hypoxia-ischaemia very well at all. He said it was intuitive that if the time of the episode was reduced significantly by 40 or 25 minutes she would have suffered much less brain damage and there was an increasing acceleration towards the end of the period. He accepted there was a good deal of speculation; he said on both sides, but that his evidence was based on firm principles and the Defendant's case ignored the bradycardia and the acidosis. 19. The Judge analysed the literature none of which identified duration as an indicator of severity in IVH cases. 20. Reliance was heavily placed by the claimant on Megan s acidosis at birth. However, Professor Levene accepted that acidosis in itself does not cause damage and that some babies deal remarkably well with severe acidosis and suffer no lasting damage. In answer to the proposition that if there had been a permanently 5

6 damaging acidosis in Megan s case, it would have taken longer to clear he responded perhaps. Ouch. 21. The Judge was impressed by the evidence from Dr Rennie and Dr Ferrie as to the significance of the lack of renal impairment. It was their argument that had the acidosis been damaging to the brain it would have been damaging to the kidneys too. Professor Levene accepted that in over 50% of cases he would expect to see renal damage. The Judge was also impressed by the lack of encephalopathy (diffuse brain dysfunction) and microcephaly (small head circumference) both of which are common in hypoxic ischaemia rather than IVH. He concluded :- I have to decide this case to a standard of a balance of probabilities. What is known and agreed is that Megan was compromised by reason of the abruption. As a result, it is accepted that she lost her autoregulation and suffered a reperfusion injury after birth resulting in a complicated high grade GMH-IVH that was bilateral. That, in itself, could account for the totality of the damage and her disability. It is accepted by Dr Rennie and Dr Ferrie that it is possible that there was an additional ischaemic insult to the brain causing additional WMD, however, for the reasons they gave and which I accept, it is not established to the requisite standard that there probably was additional ischaemic insult in the 30 minutes prior to delivery. I reach this conclusion for the reasons set out above and, in particular, on the basis of the features of a stable FHR and the absence of evidence of deterioration of her condition over that last period, her condition upon delivery being significantly acidotic but having reasonable renal function, relative ease of resuscitation, stable neonatal blood pressure, together with the fact that Megan is not microcephalic and that her injury is markedly asymmetrical. All these features are consistent with the consequences of her complicated high grade GMH-IVH, which was bilateral and event, not time mediated. There is nothing of significance that can be relied upon as clear evidence of a separate, time related hypoxic ischaemic event prior to birth. A difficulty of the Claimant's case has been exemplified by its evolving nature, as is apparent from paragraphs 28 and inclusive of this judgment. Tempting 6

7 though it is to adopt what is, in one sense, a simplistic approach, namely the gas tap analogy, the evidence does not, in my judgment, establish to the requisite standard of a balance of probabilities that the delay in Megan's delivery of 30 minutes resulted in her suffering an additional ischaemic insult that caused further damage and disability to that which she would, unhappily, have sustained in any event. The Bolam Supremacy (with compliments to Martyn McLeish at Cloisters who wrote the following) 22. There have been a string of recent High Court clinical negligence cases decided in favour of defendants, including Nyang v G4S Care and others [2013] EWHC 3946 (QB); Ali Shah v North West London Hospital NHS Trust [2013] EWHC 4088 (QB); Sardar v NHS Commissioning Board [2014] EWHC 38; Jones v Portsmouth Hospitals NHS Trust [2014] EWHC 42 (QB); C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB); and Aspinall v Secretary of State for Health [2014] EWHC 1217 (QB).The Claimant s appeal in Meiklejohn v St George s Healthcare NHS Trust [2014] EWHC Civ 120 was dismissed. 23. A careful reading of these cases militates against any broad generalisations. Certainly it would be preposterous to suggest that a string of poor results for Claimants is evidence of any judicial tendency. If a single theme can be identified in these cases it is the obvious care and authority with which those trial judges identify and analyse the issues in dispute. 24. These cases demonstrate almost textbook examples of experts departing from their duty to the court, CPR So, -Loss of impartiality, straying into advocacy for the claimant (Sardar); -An expert giving evidence on a specialism not within his area of expertise (Sardar); 7

8 -Failure to take full and proper account of the factual evidence (Sardar; Aspinall; Nyang); -Failure of an expert to answer questions directly and being evasive (Ali Shah); -Changes or apparent changes of opinion by an expert can fatally undermine the claim (Ali Shah, Jones v Portsmouth); -Failure to take into account developments in medical literature or relying on otherwise outmoded thinking (Sardar). 25. These cases perhaps reinforce a point which will be familiar to most clinical negligence practitioners which does not necessarily lose force by repetition which is the problematic interface of the duty owed by an expert witness to the court and the application of the Bolam test. 26. As the application of the Bolam test means that the position of the Defendant s expert is to defend a reasonable view, a claimant s expert may strain to articulate a contrary view in language compatible with that test. So, for example, no judge could be satisfied that praying in aid the hypothetical conduct of the good or wise or cautious professional was consistent with Bolam (Ali Shah). 27. In C v Cumbria the judge praised the claimant s experts for their evidence but found that they had set the bar of reasonableness too high, adopting a highly cautious approach. If a case hangs on the relatively narrow ground of what is reasonable it is vital that experts are able to give cogent and compelling explanation as to why the actions of a medical practitioner do not comply with Bolam as well as having a clear and demonstrable understanding of how the test applies. The failure to do this means not only the loss of the case, but a finding that the expert has departed from his or her duty to the court. And Finally two things :- 8

9 28. From April 2015, Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, health and social providers will be required to meet fundamental standards of care as a condition of their registration with the Care Quality Commission. There will be criminal penalties for failing to meet some of the standards, including 50,000 fines for breaches of duties in relation to consent, safe provision of care and treatment, protection from abuse, and nutritional and hydration needs. 29. The Duty Of Candour (AvMA s Robbie s Law ) will apply to NHS bodies from November 2014, and will be extended to all CQC-registered providers in April Under Regulation 20 (1) a health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying out a regulated activity. 31. Under Regulation 20 (2), a health service body must notify a service user (or person legally acting on behalf if they are under 16, lack capacity or have died) as soon as reasonably practicable after any unintended or unexpected incident that occurs during the provision of care or treatment that, in the reasonable opinion of a health care professional, could result in, or appears to have resulted in death, severe harm, moderate harm or prolonged psychological harm. 32. Briefly the notification must be first in person by a representative of the health service body and then followed up in writing. It must contain the following information: - an account of all the facts the heath service body knows about the incident; - what further enquires into the incident the health service body believes are appropriate; - an apology and 9

10 - be recorded in a written record kept securely 33. Failure to notify is an offence for a health service body, subject to a 2,500 fine. 34. Honourable mention to William Latimer-Sayer s case of Totham v King s College Hospital [2015] EWHC 97. This is a quantum case with a capitalised value of circa 10m. Interestingly Laing J was persuaded that the prohibition of recovering loss of earnings during the lost years for infants (see Croke (A minor) v Wiseman [1982] 1 WLR 71) was incompatible with the 100% principle for the recovery of damages. However the judge was bound by the authority. Simon Dyer Cloisters 1 Pump Court Temple EC4Y 7AA 3 rd February

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