In this article...

• Facts
• Issues
• Judgment
• The Appeal
• Comment

Facts

The Claimant was born as long ago as September 1990. The labour was long and around 6 hours prior to delivery the progress of cervical dilatation came to a halt. The decision was taken to kick-start dilatation with an infusion of syntocinon, a drug used to increase the frequency and strength of maternal contractions. The infusion was effective and full dilatation was reached around 3 hours prior to delivery. Unfortunately, the syntocinon infusion was so successful that excessive contractions were provoked but the baby still did not deliver despite maternal efforts.

The CTG trace was now giving some cause for concern. A Fetal Blood Sample (FBS) was taken at 23.38 hrs with a normal pH of 7.278 which confirmed that notwithstanding the CTG trace the fetal condition actually remained as good as could possibly expected for that stage of delivery. In the light of the reassuring FBS result the plan was to transfer mother to theatre and attempt to deliver by forceps. If that was not successful an immediate caesarean section was to take place.

In the run–up to transfer there was some further disturbance in the CTG trace with tachycardia and variable or late decelerations. In theatre the first blade of forceps was applied but the treating doctor could not get it into a position he was happy with and removed it. On removal of the blade the fetal heart fell into a deep bradycardia indicating a serious hypoxic event. An immediate caesarean section was performed and the Claimant was delivered about 50 minutes after the FBS. She was very flat and despite intensive resuscitation she now suffers from cerebral palsy.

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Issues

At the original trial in the later part of 2006 the Claimant’s case was, in effect, that there was evidence of deteriorating condition on the CTG trace from much earlier on and that delivery should have been performed by caesarean section around 3 hours earlier than was the case. The Claimant also argued that the admitted over-administration of syntocinon caused excessive contractions which led to a gradual erosion of fetal reserves eventually tipping into the deep bradycardia shortly before delivery because by the trial of forceps the Claimant was already in a seriously compromised state.

On the first point we argued that whether or not interpretation of the CTG trace suggested deterioration (which was disputed) the Claimant could not have been experiencing fetal distress as a matter of fact because several hours later a FBS had been performed showing that condition was as good as could be expected. On the second point, regardless of the dose of syntocinon, we argued that there was no evidence that the excessive contractions caused any erosion of reserves given the compelling evidence of the reassuring FBS result.

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Judgment

In his Judgment, HHJ Oliver-Jones QC sitting in the High Court in Birmingham agreed that there was no prospective evidence of poor fetal condition to justify earlier delivery; the FBS result at 23.38 hrs had to mean the Claimant would have been well at 21.30 hrs when it was suggested by the Claimant’s experts that delivery was mandatory on account of the CTG. He therefore rejected that part of the Claimant’s case.

He also concluded that the FBS was undeniable evidence that the Claimant was well at that time and could not have suffered any ill effects of the over-administration of syntocinon. He concluded that if there was any “erosion of reserves” (which he doubted) it was the result of the long labour, not the syntocinon, and that it was much more likely that the Claimant’s injury was the result of the bradycardia shortly prior to delivery. FBS 1, CTG 0!

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The Appeal

Despite the carefully worded Judgment the Claimant was given permission to appeal to the Court of Appeal and the appeal was heard on 21 November 2007. The Claimant did not seek to overturn the finding on the first point that there was no justification for an earlier delivery. Rather the appeal focused on the argument that the excessive contractions caused by over-administration of syntocinon eroded the Claimant’s fetal reserves and meant that the degree of hypoxia before birth that she would otherwise have been able to withstand had therefore caused her damage.

The appeal was dealt with very shortly by Jacob, Tuckey, and Latham LJ. Despite the submissions of Mr Redfern QC for the Claimant they considered that the Judge at first instance had set out clearly his reasoning for preferring the expert evidence of the Defendant’s experts, Mr Richard Porter and Dr Neil Thomas. They found no reason to call into question the Judge’s assessment of the witnesses, including clear examples of Mr Johnson’s expert obstetric evidence for the Claimant not being “thought through”. Giving the leading judgment Latham LJ concluded:

“the appellant could only succeed if Mr Redfern had persuaded us that the Judge was not entitled, on the material before him, to accept the evidence of Mr Porter and Dr Thomas….that was an impossible task”.

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Comment

The fundamental piece of evidence in this case was the FBS taken at 23.38 hrs, around 50 minutes prior to delivery. Both the Claimant’s primary case – that delivery should have been performed by 21.30 hrs – and fallback position – that the Claimant’s fetal reserves were eroded by excessive contractions – foundered on the FBS result. We recovered the Defendant’s costs of the appeal from the Legal Services Commission.

The Judge at first instance, upheld by the Court of Appeal, concluded that the FBS was such reliable evidence of the condition of the fetus at that time that it, in effect, “trumped” all other indicators of fetal condition.

Whilst it was accepted in evidence from both sides’ experts that a CTG trace is usually the best available indicator of fetal condition whilst in utero it was no more than a screening tool, not direct evidence of fetal condition. It is relatively common for babies to be born neurologically intact despite ‘pathological’ CTG traces and sadly for cerebral palsy to occur even in the absence of warnings of fetal distress in labour. Applying the wisdom of hindsight, it may be tempting for medical experts advising an injured Claimant to look back critically at any disturbance in the fetal heart rate pattern on a CTG and for the trial judge to be taken in where there is no other obvious explanation. The taking, consideration and documentation of blood samples (FBS or post-natal cord blood samples) is often the only other explanation available and is a vital part of the medico-legal analysis. But for the documented FBS result this claim may have cost in the order of £5 million. There are bound to be others like it where the blood sample was not taken or retained.