The recent case of Sanderson v Guy’s And Thomas’ NHS Foundation  EWHC 20 defended by Julie Charlton of Bevan Brittan and Simon Readhead QC of 1 Chancery Lane on behalf of Guy’s and Thomas’ NHS Foundation Trust reflects on the difficulties of litigating claims 17 years after the event, with the judgement in the Trust’s favour focusing on :-
- The importance of the credibility of a witness, their delivery of evidence and realism in relation to evidence so many years after the event.
- The application and contradictions within the NICE Guidelines.
The Claimant was born in February 2002. She brought an action for damages alleging that there was a delay in her delivery causing hypoxia and moderately severe cerebral palsy. The matter came to trial 17 years after the event. The only witness for the defendant was the treating consultant obstetrician, Professor Susan Bewley. Expert evidence for the Claimant was given by Mr Suresh Duthie, consultant obstetrician and for the Defendant Mr Derek Tuffnell, consultant obstetrician. The question for the court was whether there was a breach of duty by the consultant obstetrician caring for the Claimant’s mother in her second stage of labour and if so whether, but for that breach of duty, the Claimant’s delivery would have taken place earlier such that the period of hypoxia would have been avoided or shortened. The Claimant’s evidence at trial focused on reconstructing on a minute by minute and sometimes second by second basis, the 25 minute period immediately prior to delivery.
Mrs Justice Lambert DBE accepted in full the witness evidence given by the Trust’s witness Professor Susan Bewley. Appreciating it was very difficult to give evidence 17 years after the event she highlighted:
- Delivery of evidence – Professor Bewley was an impressive witness who gave her evidence in a ‘neutral’ and ‘non-defensive way’. Notwithstanding her expertise and experience she was careful to avoid trespassing into areas of expert opinion.
- Note keeping – The court accepted that in the 2000s note keeping was different, Professor Bewley was working in high pressure, emergency situation. No criticism was made of her note keeping.
- Timeline of events – the court said that it was important to be realistic and “a forensic scrutiny of timings so many years after the event was bound to involve an element of imprecision.” The Court concluded there was ‘an element of unreality to some of the questions posed’ during the cross examination of Professor Bewley which focused on a second by second analysis of her actions.
- Recollection of events – Professor Bewley’s account was reconstructed from her memory, contemporaneous records and what she believed she would have done and thought from her knowledge of her practice in 2002. The court accepted Professor Bewley’s evidence in full and the timeline she produced.
The Claimant’s case hinged on the analysis, interpretation and application of the Nice Guidelines. Mrs Justice Lambert DBE concluded:-
- There was an inherent contradiction within the NICE Guidelines. On the face of it they advocate 2 contradictory management options in response to the same CTG feature of a single prolonged deceleration lasting longer than 3 minutes: conservative management where possible or feasible and a few paragraphs later urgent delivery. The Guidelines point in 2 entirely different directions.
- Mr Duthie, the Claimant’s expert suggested the Guidelines provide the practitioner with a complete description of appropriate management. However the contradictions within the Guidelines ‘pulls the rug’ from Mr Duthies’ thesis which relies on a formulaic application. His evidence was not accepted.
- The Defendant’s expert Mr Tuffnell however provided a comprehensive explanation which was accepted. The Guidelines do not provide a substitute for clinical judgement or a complete compendium of either definitions or clinical management options. They must be interpreted by the clinician and applied in light of that judgement.
This was a case successfully defended by the Defendant notwithstanding the difficulties it faced establishing a chronology some 17 years after the event. It highlights that the courts accept that a degree of realism and pragmatism is required when trying to piece together evidence. It is also a very useful judgement on the use of and application of NICE Guidelines highlighting that they should not be adopted literally and they are very much a tool for the practitioner to use in conjunction with their clinical expertise and judgement.
Julie Charlton and Claire Bentley