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NKX v Barts Health NHS Trust [2020] EWHC 828 (QB) (08 April 2020)

NKX v Barts Health NHS Trust [2020] EWHC 828 (QB) (08 April 2020)

This is a clinical negligence birth injury case...  I am trying issues that relate to liability alone. [1]

C's case that his mother was given no or no sufficient warning that she should have continuous fetal monitoring (CFM) when she was in labour; that if she had been given appropriate warnings she would have accepted CFM rather than, as in fact occurred, monitoring by intermittent auscultation (IA); that CFM monitoring would have detected abnormalities of the fetal heart earlier than abnormalities were in fact noted; that as a consequence a uterine rupture would have been detected more quickly than in fact was the case; and that delivery would therefore have been achieved more quickly, thus avoiding some of the acute profound hypoxia that accompanied the uterine rupture and some or all of the permanent brain damage resulting from it. [2]

C has a secondary case which is that IA should have increased in frequency from the point at which midwifery staff should have known or assumed that his mother was in the second stage of labour, and that such an increase in frequency would, again, have resulted in earlier detection of the uterine rupture...[3]

Central to the case on breach of duty is whether D's midwifery staff took reasonable steps to inform C's mother that if monitoring was by IA rather than CFM the risk that a uterine rupture would be detected later than would otherwise be the case was increased and thus so was the risk of the baby sustaining permanent brain damage. It is C's case that his mother did not appreciate these consequences of her decision to opt for delivery in a birthing centre without access to CFM, it not having been made clear to her by midwifery staff either when discussing options for delivery or when she arrived at the hospital in labour. It is D's case that the mother opted for delivery in the birthing centre monitored only by IA fully aware of the risks and benefits of so doing and exercising her undoubted right to choose how and where she would labour and with what monitoring. [4]

C is his mother's second child. Her first child was born by caesarean section on 4 November 2013. [11]

[As to antenatal counselling] I have reached the conclusion that D told C's mother that IA was not recommended by the Royal College of Obstetricians and Gynaecologists; that a uterine rupture was a small possibility but that CFM reduced the risk of a rupture damaging the baby; that CFM was available in room 10 but might not be in the birthing centre; and that if the mother wanted to labour in the birthing centre without CFM that would only be possible if staffing levels permitted. I have reached the conclusion that the Claimant's mother did appreciate the difference between CFM and IA and did appreciate that CFM carried a greater chance of detecting a rupture than IA. [33]

At 01.15 hours... a deceleration that did not appear to be recovering... there was scar tenderness and a fetal heart rate of 80 bpm. C's mother was taken to theatre immediately, arriving at 01.28 hours. In theatre the fetal heart was recorded as remaining at 80 bpm...  a decision was taken to perform a category I caesarean section. Delivery was achieved at 01.46 hours. [51]

Whatever the perceived deficiencies of the antenatal counselling I find that C's mother knew of the increased risks of having a water birth with IA as contrasted with labouring with CFM whether in a pool or otherwise... [72]

It was necessary for the counselling to be repeated when the mother came into the hospital in labour. [73]

I do not consider that there was any counselling or re-assessment of risks when C's mother came to the hospital in labour. [74]

Any repeated counselling and re-assessment should have set out the risks inherent in not having CFM but should also have emphasised that staff could not guarantee the close monitoring by a midwife that the parents had expected because the unit was so busy, that CFM simply could not happen in the pool because there was no available wireless CTG monitor, and that there may have been no staff available who had experience of caring for a VBAC mother who was not continuously monitored. [75]

On a balance of probabilities C's mother was in the second stage of labour from 00.35 hours...   IA should have taken place every 5 minutes thereafter. [81]

C's mother was in continuous pain at or around 01.00 hours and that it was a breach of duty not to have recognised that this was a sign of uterine rupture and to have called for obstetric assistance. [82]

There should have been a re-statement of the risks to C's parents on admission on the 23 May...  if given this information in these terms they would probably have decided to accept CFM. Accordingly, I find that in such circumstances there would probably have been continuous CTG monitoring. [88]

The rupture probably started at about 00.50 hours and that by 01.00 hours the Claimant's mother was in continuous pain consequent upon the rupture. [102]

If C's mother had been the subject of CFM it would have been apparent by 01.00 hours that there was a potential obstetric emergency...  in the context of a VBAC woman apparently in or nearing the second stage of labour, with atypical decelerations and complaining of continuous pain, and in circumstances where the blood loss could not certainly have been a simple show...  all reasonably competent midwives...  would have sought urgent obstetric assistance by 01.00 hours. [103]

A complaint of continuous pain, with or without the added factor of a pattern of decelerations, would or should have resulted in an obstetrician being called. [104]

If obstetric assistance had been called at 01.00 hours the same sequence of events as in fact occurred would have occurred 15 minutes earlier. It follows that delivery would have been at 01.31 hours and effective resuscitation by or about 01.32 hours... [106]

If the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case. [122]

There must be judgment for the Claimant on the basis that but for the breaches of duty that occurred at the maternity unit on the 23rd and 24th May 2015 he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability. [123]

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