This important first instance Judgment from HHJ Ritchie may have wide-ranging implications for Obstetricians advising expectant mothers about their birthing options right up until delivery, as well as providing a potential roadmap for claimants in birth injury cases to recover their damages in full despite having suffered a divisible injury which would have caused a degree of harm in any event.
The claimant suffers from quadriplegic cerebral palsy and was born on 3 February 1996 at 01:03 by caesarean section (CS), an hour after her twin sister who had been born vaginally following induction of labour (IOL). The claimant’s cerebral palsy was caused by acute profound hypoxic ischaemia (APHI) suffered whilst in the womb and after delivery. After the birth of her sister, the claimant’s head failed to descend.
In summary, the claimant’s case was that an earlier CS would have avoided all of the harm she suffered. The defendants’ case (in summary) was that the clinicians acted reasonably in carrying out CS when they did and that there was no negligent delay.
In respect of breach of duty, the claimant’s case focussed on three assertions:
- The antenatal care provided and the extent to which the principles on patient autonomy and consent set out in Montgomery v Lanarkshire Health Board  applied - The claimant asserted that an elective CS should have been offered to the claimant’s mother (M) as a reasonable alternative treatment at this stage.
- The obstetric care provided following the birth of the first twin - The claimant asserted that on Bolam principles there was a delay in taking M to theatre.
- The intrapartum care provided and the application of the principles in Montgomery - The claimant asserted that M’s request for a CS in theatre was not acceded to quickly enough in breach of her right to personal autonomy over her care.
Antenatal care, patient autonomy and consent
In respect of the first assertion set out above, it was found as a matter of fact by HHJ Ritchie that CS had been discussed with M antenatally (on 30 January 1996) and that M had agreed to IOL in her birthing plan following advice provided at that discussion. Therefore, the claimant was unsuccessful in respect of this first assertion. However, HHJ Ritchie considered whether elective CS was a reasonable alternative treatment to offer antenatally to M and the retrospective application of Montgomery to this situation in 1996.
It was asserted by the defendants that elective CS in M’s case was not medically indicated because she was healthy, had given birth previously with normal vaginal deliveries (NVD) and the twins were in a cephalic position. It was mooted by HHJ Ritchie that Montgomery was retrospective as far as 1996 and perhaps even before, lending support to the claimant’s assertion that in the claimant’s case CS was a necessary alternative to offer antenatally given her stated preferences. This is essentially applying the more recent patient autonomy approach outlined in Montgomery to medical advice given 26 years ago when clinical practice was different. If the expectation is now in favour of offering an elective CS to every expectant mother with such a preference, questions arise as to what impact this will have on CS rates, theatre capacity and staffing levels already challenged on most delivery units, and the extent to which clinical dissent will have a bearing.
Obstetric care provided following the birth of the first twin
In respect of the second assertion, it was found that the defendants’ registrar unreasonably delayed in sending M to theatre once it was determined that the claimant’s head remained high, and a normal vaginal delivery was not going to be possible. It was found that the Registrar should have taken M to theatre before calling her supervising consultant to agree a plan of action, and should also have discussed M’s wishes with M before discussing these with the consultant.
Intrapartum care provided and the application of the principles in Montgomery
In respect of the third assertion, it was accepted that M requested a CS once in theatre, however there was a question as to whether the registrar was still considering an artificial rupture of M’s membranes. It was asserted by the claimant at trial that the registrar ignored M’s wishes and that this was a breach of the law on consent in Montgomery. The defendants argued that the registrar acted reasonably. HHJ Ritchie found, however, that there was a delay in the registrar acceding to the wishes of M to have a CS when in theatre and that essentially patient autonomy and the right for an expectant mother to opt for an alternative reasonable obstetric treatment apply in the theatre/delivery room setting.
As to causation, it was found that but for the delay in transferring M to theatre, the claimant would have been delivered 6.5 minutes sooner and would have avoided all harm. This was on the basis that the total hypoxic insult lasted 16 minutes and if shortened by 6.5 minutes, would have been within the 10 minute non-damaging range. However, HHJ Ritchie went on to say, obiter, what he would have decided had there been some element of damaging hypoxia and had he needed to consider material contribution.
HHJ Ritchie observed that if the claimant had suffered say, a 20 minute insult with five minutes of negligently caused hypoxia causing injury, it is not the case that the defendants would only be liable to pay damages in respect of the loss of functional outcome that would have occurred as a result of the negligence. The defendants had asserted that based on the Aliquot theory, now commonly adopted by paediatric neurology experts, it was possible to quantify the claimant’s ‘but for’ injury and associated functional outcome and therefore apportion the damages that they were liable for.
Divisible injury and material contribution
HHJ Ritchie’s obiter opinion was that in this particular case, whilst APHI was a divisible injury, it was impossible to scientifically divide up the injury to translate it into loss of functional outcome on a minute by minute basis and so he would have found for the claimant in full.
Whilst this approach to material contribution has been adopted in other cases, most notably those brought within the industrial disease setting, it is the first time that such arguments have been debated at first instance in the context of APHI. As we learn more about the functional outcomes associated with hypoxic ischaemic injuries it may be that courts will be more persuaded by the evidence provided by exponents of the Aliquot theory and that material contribution in this context is again reviewed.