A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld a decision to overturn the trial judge’s findings of fact – on the grounds that there was no clear evidential basis for them. The importance of findings of fact can be seen in the judgment yesterday in JRM v King’’s College Hospital Foundation Trust  EWHC 1913 (QB. The evidence of the defendant was contradicted by the physical evidence, medical staff were not called. There was a clear factual basis for the findings of negligence.
“I cannot leave the case without making two comments. The case before me for the Defendant was conducted with scrupulous fairness and considerable skill by Mr Evans, and the conduct of his instructing solicitors appeared to me to be most efficient. However, in the light of the terms of the NICU records, notes and reports, and the other documents to which I have referred, I am very critical of whoever it was in the Defendant Trust or in the NHSLA who considered that this claim should be resisted on the basis (among others) that the delivery was a straightforward and unremarkable forceps delivery. It must have been known for a long time that Dr Mahfouz’’ evidence about the delivery was, to say the least, difficult to reconcile with the internal notes and records, where the obvious injuries to the baby had excited so much concern and comment by those treating him. It was an obvious lacuna in the Defendant’’s case that, in a claim where so much turned on the evidence that this child was injured at round the time of his birth, no midwife or nurse present at the birth was called, nor, perhaps more concerningly, none of the clinicians or nursing staff who dealt with the consequences of the labour when C was admitted to NICU.”
The claimant was injured at birth. His case was that there was excessive force and traction from instrumental delivery.
Mr Justice Gilbart considered the evidence in relation to excessive force.
Many others were present during the procedures in theatre. According to Dr Hoo, as well as the mother, father, himself and Dr Mahfouz, there were present at least two midwives, two neonatologists and two neonatal nurses, an anaesthetist and an anaesthetist’’s assistant. Dr Hoo was behind Dr Mahfouz to one side, and could not see the delivery directly. His evidence, contained in a statement made on 20th June 2016, stated that “”I was standing behind Mr Mahfouz and I recall that he was particularly gentle in his delivery and that the delivery of twin one occurred after two pulls on the forceps.”” However, his evidence also stated that he had little recollection of the patient, but “”some recollection of the delivery.”” However, as was pointed out to him in cross examination, he had made a statement for the purposes of an internal review, which took place in mid 2009. In that statement, which was described by him as ““written after reviewing the case notes and I feel this to be an accurate and complete account of my involvement”” there is no mention of there being any number of pulls, nor of the force (or lack of it) which was used.
The mother’’s evidence was that there were several attempts to deliver JRM. For obvious reasons, she can say little which is relevant to the issue of the position of the baby or the use of forceps. The father gave evidence. He described how there was a large team of people in theatre. He says that JRM was delivered first, with the use of forceps. It took a little force to remove him, and he was not moving. He was surprised by the degree of force that was used. He said that two nurses at the Natal Intensive Care Unit (“”NICU””) informed him that they had never seen such bad bruising on the face and chest of a baby.
Given the ample evidence from the NICU case notes, and the photographs (both of which I consider below), there can be no doubt that JRM was bruised after birth, and significantly so. Although there was some difference of view about the interpretation of the photographs, all were agreed that JRM was bruised to different parts of his head as well as elsewhere. There were issues about where on the head the bruising was, and how that could have been caused.
Forceps were used in the birth, and it is necessary to understand the evidence about their use, and about the position of the baby before delivery. The starting point for determining the issues in this part of the case is to understand the evidence which I heard about the use of forceps. The type used here were Neville Barnes forceps. According to Dr Mahfouz, if the baby had been in the OL position he would have used rotational forceps. Neville Barnes forceps have two arms. Each is curved, but consists of a curved paddle shape whose centre has been removed. If applied to an OA baby, the forceps are applied into the birth canal so that they approach the baby’’s head from above and behind. They grip the child’’s head on either side, with the end of the paddles across the lower part of the cheeks, and the ear within the in the open area between the two sides of the paddle, or perhaps under one of them. The paddle is put over the child’’s head from behind the occiput and a little below the crown. The effect is that a baby in the OA position held by the forceps will be pulled head first, with the sides of the head being in contact with the outer edges of the paddles. If the child is OA, no part of the paddles will, when being inserted into the vagina, pass over the scalp, centre forehead, chin or nose of the child. The handles of the forceps are so designed that when the forceps are properly engaged, they can be “”locked”” together.
If the child was, by contrast, in an OL position, then the position of the forceps “”paddles”” will have been rotated through 90 degrees in relation to the child. One paddle will pass down across the face, and the other down the back of the head. As the forceps was placed over the baby, the lower inwards curving end of one paddle would pass across the front of the scalp, the central forehead, nose, and mouth of the child, and reach down to the chin. The passage of the other paddle’’s lower end to the rear of the child’’s head would pass down across the scalp from around the crown area. As shown by the application of the forceps to mannequins, there would then be a gap between the curve of the paddle and the lower part of the rear of the head, but firm contact with the front of the child’’s head from forehead downwards along the outer parts of the paddle.
It was therefore apparent that the location and degree of bruising was of importance. Apart from the evidence of Dr Mahfouz and Dr Hoo, there are three contemporaneous sources of evidence about the incidence and location of bruising, namely the father’’s evidence, the medical notes made when the baby was admitted to and then cared for in the NICU, and the photographs taken of JRM by his father and mother.
a) the first note made in on 28th February 2009, records the claimant at 6.00 am as being bruised to the face, chest and arms on arrival in the NICU, and before a face mask was applied for respiration, or intubation attempted;
b) a retrospective note written by a Consultant Dr Bhat of a visit at 12.30 on the same day, records the child having areas of bruising over face, scalp and limbs;
c) a Nursing Care Plan drawn up on that date records him as being “”very bruised- mainly head/face/abdomen;””
d) at 19.30 pm on that date he was recorded in the day nursing entry as “”still very bruised;””
e) on 1st March 2009 at 7.00 am he was noted as having a bruised face and left shoulder. The nursing care plan prepared that day describes him as “”very bruised over facial area and left shoulder.”” At 19.15 the same day he was described as “”very bruised”” and “”a bit puffy;””
f) on the next day 2nd March, he was described as “”still bruised and oedematous.”” The Nursing Care Plan described him as “”bruised- face and chest and left shoulder.”” The same description was given in the Nursing Care Plans of 3rd – 5thMarch 2009 inclusive:
g) a report written by a Dr Murthy on `2nd March 2009 uses this description: “”Baby was admitted……Noted to be heavily bruised.””
h) on 6th March 2009 the Nursing Care Plan noted “”bruised on face and chest area since birth.”” It was noted again on 7thMarch 2009 but some improvement was noted. On the 8th March 2009, the terms of the note of 6th March were repeated. On 9th March 2009, the note is to the same effect;
i) on 10th March 2009, the bruising to face and chest was noted as being “”lessen”” (sic).On 12thMarch, nothing is noted about bruising. A reference to bruising to chest and face was made on 14th March. On 15th March the note refers to bruising on his upper torso which was resolving.
j) a clinical history written on 11th March by a Consultant in the NICU, Dr Silke, says this: “”Clinical details:……29/40 forceps delivery. Bruising ++.””
k) on 20th August 2009 a letter was sent to a respiratory paediatrician at Great Ormond Street Hospital enclosing “”a comprehensive summary of his neonatal course and his current status.”” It was written by Dr Reyes on behalf of the Consultant in the NICU. It records the following
“”Delivery: Difficult forceps assisted vaginal delivery after spontaneous premature rupture of membranes……..
Resuscitation: (JRM) was noted to be bruised and oedematous at birth…..””
It then describes how he was ventilated, intubated and given CPR, and was then taken to the NICU.
l) a letter was written to JRM’’s General Practitioner by a Dr Wellington at the Defendant’’s hospital. It said this
“”(JRM) had a very stormy neonatal course. (JRM) was born by vaginal forceps delivery……..It was a difficult extraction and at birth (JRM) was bruised and oedematous……””
m) a transfer letter was sent on 14th October 2009 from the NICU to the High Dependency Unit. It stated that JRM had had a “”difficult forceps delivery””
n) a very similar description appears in the High Dependency Unit (“”HDU””) admission form of the same date.
The third source of evidence is the series of photographs taken of the claimant on 28th February, 1st, 2nd, 4th, 6th, 12th, 13th, 14th and 28th March, and 21st April 2009. They were taken by one or other parent using a mobile telephone. The claimant was dressed in, inter alia, a woolly hat which obscured much of his scalp.
The photographs were the subject of much evidence and comment at trial. I start by saying that they were not taken by a professional or medical photographer. I have seen them both in their original digital form, and when printed out. There is little difference between the former and the latter. Evidence about their interpretation was given by Dr Mahfouz, Professor Bennett and Mr Walkinshaw.
Dr Mahfouz was cross examined about the bruising. He agreed that some of the bruising to the child was caused by the forceps, but not all of it. While he said that the pessary could have been responsible, he accepted that the bruises to the face could have resulted from the application of the forceps, but not that to the arms. He said that the baby was pre term and fragile, but when pressed, he said that he saw nothing during delivery which could have caused bruising to the chest or arms. He said that if the baby had been in the OL position, he would have expected to see patterned marks on the head.
When asked to consider the photographs taken on 1st March 2009, he accepted that they showed bruising to the tip of the nose. He did not accept that it showed it below the lower lip. He accepted its presence above and to the right of the right eye and above the left eye. He accepted that all the bruising shown was to the central part of the face. He agreed that the bruising to the nose was not where one would expect it if the baby was OA, and that it was what you would expect if the position was OL. He did not accept that he had caused it. He said that the bruising astride the nasal bone could have been caused by the use of a mask subsequently to resuscitate the baby. He gave the same explanation for the presence of bruising on the right side of the face and lower lip.
In my judgement, the best place to start consideration of this issue is the record made in the NICU on 28th February 2009. That shows that when JRM was admitted to the NICU, and before any attempts at respiration through the face mask, or intubation, or any other procedure, he was bruised over his face, chest and arms. Dr Bhat of the NICU noted bruising to the scalp on the same day. The bruising to the face remained until 14th March. The Nursing Care Plan of 28th February, the note made in the evening of 28th February, and those on 1st March described him as “”very”” bruised. The note made in the evening of that date described him as “”very bruised and puffy.”” The report by Dr Murthy on 2nd March shows that C was heavily bruised. Given all that evidence, one must conclude that the bruising can only have occurred during delivery.
It is unfortunate that the Defendants did not call any of the clinicians or nurses who dealt with JRM on the NICU to describe his condition, and especially so given the importance of the issue about the location of the bruising. But, notwithstanding their absence as witnesses, the best evidence of his condition after delivery must be found in those notes and records. I find it impossible to reconcile what is said in those notes with the evidence of Dr Mahfouz, who says that nothing occurred which would cause bruising of the kind which this baby had received. Indeed, his description of what was to him a straightforward delivery cannot be reconciled with the observations made in the records, or in the subsequent reports. One can safely dismiss the idea that the facial bruising could have come about through application of a breathing mask or intubation, or any other procedure in the NICU. The summary report of 20th August 2009 shows that he was bruised after delivery and before any such procedures occurred. It was noted on his arrival in the NICU before any such procedures were undertaken there. In any event, I accept Professor Bennett’’s evidence that they were unlikely to have caused bruising.
There is no evidence before me that the Claimant was more susceptible to bruising than other babies born at this level of gestation. The bruising noted on C’’s admission to the NICU can only have occurred during birth. The NICU records, and the summary of 2nd August 2009, corroborate the evidence of the father that the midwives at the birth remarked on the level of bruising. I am also satisfied that Dr Mahfouz’’ evidence about the delivery, and that of Dr Hoo is, at the very least, unreliable in important respects. That evidence, taken in the round, suggests that Dr Mahfouz did not use two gentle pulls. I reject Dr Hoo’’s evidence about the two pulls. His view of the delivery was largely obstructed, and he never mentioned them in his statement of 2009, as opposed to his witness statement made in 2016. I do not consider that he was able to see how many pulls there were, or how forceful they were. It is to be noted that the Defendant did not call either of the midwives present, nor any of the nurses present, to give evidence about Dr Mahfouz’’ conduct of the delivery.
I turn now to the location of the bruising. This is an important matter, as it can indicate whether the forceps were properly applied. I regard it as most significant that there was bruising to the nose and to other parts of the central facial area. There was also some bruising to the scalp, although the extent is unknown. In my judgement, while the location of the bruising is consistent with the forceps being applied to the baby in an OL position, it is not consistent with the baby being in an OA position. While the Defence suggested other potential causes which could have occurred after the birth (the application of the breathing mask, intubation etc) the summary report, and the NICU notes show that such matters could not have caused the bruising noted after birth and again on arrival in the NICU. That leaves one other suggested cause, which is Dr Mahfouz’’ view that the bruising to the nose could have been caused because the nasal bone could have been pressed against the vaginal wall as a result of the presence of the pessary. I regard that as speculative. Further, the severity of the bruising generally, and its extent away from the tip of the nose, suggests strongly that there was not a cause peculiar to the nose.
I refer finally in this section to the various other reports, letters and notes referred to at paragraph 50 (i)-(n) above, including the summary sent to Great Ormond Street Hospital by KCH. The account in those documents is supported by the contemporaneous notes made in NICU. It also gives strong support to the father’’s evidence that the nurses remarked on the severity of the bruising. I find it impossible to reconcile the account given in that substantial body of evidence of a difficult forceps delivery, which caused extensive bruising, with the accounts given by Dr Mahfouz and Dr Hoo.
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