RE –v- Calderdale and Huddersfield NHS Foundation Trust is a recent medical negligence claim dealing with a shoulder dystocia case involving psychiatric injury. The case was complicated by the fact that original medical records were negligently destroyed by the trust.
Background to the shoulder dystocia case
The baby, RE, was born at the Calderdale Birth Centre (‘the CBC’), which part of Calderdale and Huddersfield NHS Foundation Trust. She weighed 10 lb 6 oz. The child suffered a ‘hypoxic ischaemic insult’ during her delivery, which led to a serious brain injury. The maternity unit was alleged to have caused a delay which in turn led to the brain injury and faced a medical negligence claim on behalf of the child.
In addition to the child’s claim, a compensation claim was also brought by the child’s mother and grandmother who were present at the birth and suffered psychiatric distress, known in legal circles as ‘nervous shock’.
Disclosure of the medical records
During the case problems were encountered with the Defendant’s disclosure, with original medical records being destroyed by the trust after the claim had commenced. The Claimants therefore argued that any ambiguities on the face of photocopied records should be resolved in their favour. The court therefore proceeded on the rebuttable assumption that the judge’s reading of the entries should be the most favourable to the Claimants.
Prior to the birth the mother’s GP had diagnosed her as suffering from SPD (symphysis pubic disorder). She was seen by an Obstetric Registrar and a scan showed that the fetus was over 36 cm, which was significantly larger than normal. The mother was assured by her medical team that her pregnancy should be treated as ‘normal’ with no need to induce, but she did choose to go to the CBC as it had an ‘alongside’ unit which could provide obstetric assistance if needed.
The child was born with the assistance of an Obstetric Registrar who entered the delivery room late on when difficulties arose. The baby on delivery was described as pale, floppy and without respiratory effort or heart rate. Resuscitation was initiated. A heart rate was detected after 10 minutes with a first gasp of air after 12 minutes.
It was alleged that the delivery should have been achieved earlier than it was. In particular when the baby’s head was born there was shoulder dystocia which delayed the delivery of her body. These delays, they said, were caused by failings of the medical team in planning for the birth and carrying out the delivery.
Shoulder dystocia occurs when the shoulder of the foetus gets stuck on the mothers symphysis pubis, commonly known as the pubic bone. The significant health risks posed to babies by being starved of oxygen during birth is well established and can be catastrophic. Until the baby is born it depends on its mother for oxygen via the umbilical cord. So if the cord is compressed the baby’s supply of oxygenated blood will be reduced. Shoulder dystocia is known to be a ‘potentially lethal condition’ and was described during the trial as "one of the most frightening of medical emergencies".
As in all medical negligence cases the ‘Bolam Test’ applied. In other words the defendants were to be judged according to a ‘reasonable body of medical and midwifery practice’; a principle established in Bolam v. Friern Hospital Management Committee .
The Claimants’ legal team said that shoulder dystocia in a baby known to be very large should have been anticipated and planned for. The trust argued that it was in fact ‘body dystocia’, which is a much rarer occurrence. The trial judge accepted that it was shoulder dystocia. He agreed that there should have been an awareness that shoulder dystocia was a risk factor where the baby was large. The midwife should have realised there was a real possibility of shoulder dystocia arising and summoned obstetric help at an earlier stage in the delivery. Her failure to do so delayed the birth by 11 minutes and this delay caused the permanent hypoxic injury. Accordingly, the court concluded that there was negligence in the delivery and that the child should be compensated for her birth injuries.
The claims for ‘nervous shock’
In relation to the claims for nervous shock, the judge had to consider whether the event was of a sufficiently sudden and shocking nature as to entitle the mother and grandmother to claim damages for psychiatric damage as ‘secondary victims’.
In order to establish a nervous shock claim as a secondary victim there must be both-
a) a sufficient closeness both in terms of
i/ love and affection to the person injured and
ii/ being in sight or sound of the event giving rise to the injury;
b) psychiatric illness brought on by shock. In the words of one leading judge, "the sudden appreciation by sight or sound of a horrifying event which violently agitated the mind."
The judge accepted that the mother could be considered both a primary and secondary victim. He concluded that her PTSD was triggered by the birth of a baby suffering from an injury that had been caused by the negligence of the defendant. It would have been a shocking, exceptional and horrifying experience without any warnings and accordingly the court agreed that the mother was entitled to damages for nervous shock.
The grandmother was present throughout the birth and also witnessed the aftermath. She too suffered PTSD which the judge was satisfied had been triggered by the birth. She had a very close relationship with her daughter. There was therefore no doubt she was a ‘secondary’ victim, but the court did have to consider whether the event was ‘sufficiently horrifying’ to establish a claim. The judge concluded that the birth was sufficiently ‘sudden, shocking and objectively horrifying’ to establish that the grandmother’s claim for damages for nervous shock was also successful.
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