the personal injury and clinical negligence blog

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How quickly should an emergency caesarian section be performed? Goncalves v Newham University Hospital Trust

The cerebral palsy case of Goncalves v. Newham University Hospital Trust (QBD, Mr. John Leighton Williams Q.C. sitting as a Deputy High Court Judge 24.11.10) discusses the important question of how quickly an emergency caesarean section should be performed. The Claimant, Macmillan, a second twin, was born at 19.47 hrs on 19.01.96 at Newham University Hospital and suffers from teraplegic dyskinetic cerebral palsy as a result of oxygen deprivation shortly before, during and after his birth.  Macmillan’s twin brother was born in a healthy condition at 19.10 hrs.  The case was complicated by the hospital’s loss of the mother’s clinical records, the obstetric and midwifery notes and cardiotocograph (“CTG”) records and failure to call witnesses who recollected the emergency that occurred. The agreed expert evidence was that brain damage was unlikely to have resulted from hypoxia of less than 10 minutes and Macmillan would have avoided brain damage if the period of acute hypoxia had been less than 15 minutes.  The bracket for the damaging period of hypoxia was agreed by the paediatric neurologists to be 16-25 minutes. The Deputy Judge held that Macmillan’s breech presentation should have been discovered shortly after his brother’s birth and the obstetric registrar should have been present by 19.20 hrs if not earlier and he would have been able to detect the cord prolapse and bradycardia (which would have shown on the CTGs) promptly.  He held that the cord prolapse and bradycardia occurred at about 19.25 hrs to 19.30 hrs and accepted that there was a panic in the delivery room (as the parents described) and delay in securing the attendance of the obstetric registrar.  He concluded that the likely period of unnecessary delay was likely to have been approximately 8-10 minutes. The Deputy Judge held that:  “With the onset of asphyxia/hypoxia at about 19.28 hrs, with the obstetric registrar present and with the team ready to act, the mother could and should have been taken to theatre very quickly. Given that CS incision to delivery would take about 2 minutes, the absence of any recorded problem attending Macmillan’s delivery, and that speedy resuscitation was possible, it seems to me quite reasonable to have expected Macmillan to have been delivered and resuscitated, if such was necessary, within about 10 minutes.”  His conclusion therefore was that, but for the hospital’s negligence, Macmillan would not have suffered damaging asphyxia/hypoxia and would have been delivered unharmed.  Macmillan’s claim therefore succeeded on liability and causation.  There will be an assessment of damages hearing on a later occasion.

Savage v South Essex Partnership NHS Foundation Trust: will the Court of Appeal agree with the first instance decision?

In Anna Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB), the Claimant claimed a declaration and damages under the Human Rights Act 1998 after her mother Carol Savage (“CS”), a patient detained in a psychiatric ward under the Mental Health Act 1983, absconded and committed suicide in July 2004.  The case had already been to the House of Lords on a preliminary point on the correct test for determining whether the NHS trust had violated CS’s article 2 right to life (Savage v South Essex Partnership NHS Foundation Trust (2008) UKHL 74, (2009) 1 AC 681).  Applying the test laid down by the House of Lords, Mackay J held that the Trust had violated article 2 and awarded £10,000 damages for just satisfaction. The issues were (a) whether the Trust knew or should have known there was a real and immediate risk of CS committing suicide (b) whether the Trust should have taken steps that would have had a substantial chance of preventing the suicide (c) whether the Claimant was a “victim” entitled to bring proceedings under the 1998 Act and (d) what remedies should be granted. The Judge was critical of the Trust’s failure to comply with its policies on risk assessment and observation and decided (a) the Trust should have known there was a real and immediate risk of CS absconding and that this – because her mental state was so poor that “anything could happen” –amounted to knowledge of a real and immediate risk of suicide (b) 15 or 30 minute observations should have been imposed and would have had a substantial chance of preventing the suicide (c) the Claimant, as CS’s daughter, was a “victim” and entitled to bring proceedings (this aspect of the decision has been recently approved by the Court of Appeal in Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698) and (d) the Claimant was entitled to both a declaration and damages. The Defendant has sought and obtained permission to appeal and the case is due to be heard in the Court of Appeal in February 2011.  Do you think the High Court reached the right conclusion?