West Law Report


Posted in Breach of duty of care, Clinical negligence, Westlaw Reports by mrkooenglish on June 25, 2008

Last Updated: 5:45PM BST 25/06/2008
Queen’s Bench Division (Newcastle) Mackay J June 6, 2008
Brain damage – Breach of duty of care – Caesarean sections – Cerebral palsy Clinical negligence – Medical treatment – Premature birth – Professional practice Breach of duty by failing to deliver premature baby by caesarean section


The claimant (B) claimed that the medical care provided by the defendant hospital (N) to him and his mother (X) was negligent and caused him to suffer an intraventricular haemorrhage which resulted in him sustaining brain damage leading to cerebral palsy. In 1987, when X was 14 years old and approximately 28 weeks pregnant, she was admitted to N suffering loss of blood and period-like pains. She had further episodes of bleeding, and two days later late decelerations of the foetal heart were seen. A consultant (R) allowed the pregnancy to progress as he believed the risks to B were less than those involved in a caesarean given X’s age. The problems appeared to settle until five days later when fresh blood loss and irregular contractions were recorded. Over the next 24 hours the situation worsened with X showing signs of fulminating pre-eclampsia. R discussed the matter with colleagues and decided it was safest for B to be delivered vaginally. The foetal heart decelerated and syntocinon, a drug used to induce labour, was administered. Repeated decelerations of the foetal heart were recorded and the syntocinon dose was at first halved but then increased again. B was born later that day, eight days after X was admitted to hospital. Experts were agreed that when decelerations of the foetal heart were first detected the foetus was hypoxic but that it did not necessarily follow that hypoxic damage was being caused. However, B’s expert gave evidence that the decision to give syntocinon was inappropriate given the clear evidence of deceleration and a reasonable obstetrician would have opted for a caesarian at that point. B submitted that N had negligently failed to act on indications that he should be delivered by caesarean section which would have avoided hypoxic damage.


Whether N had negligently failed to act on indications that B should be delivered by caesarean section which would have avoided hypoxic damage.

HELD (judgment for claimant)

(1) When decelerations of the foetal heart were first recorded it was at a relatively early stage and it was reasonable for R to hope that no further hypoxia would occur and that no significant damage had been done that day. It could not be said that at that time, and with the particular patient and the particular signs, that the decision to adopt the approach that R adopted in the hope the foetus would gain further gestational maturity was not a decision which would also have been taken by a reasonable proportion of his obstetric colleagues of the time, Boland v Friern Hospital Management Committee [1957] 1 WLR 582 QBD and Bolitho (Deceased) v City and Hackney HA [1998] AC 232 applied. Therefore there was no breach of duty at that stage.

(2) An emergency caesarean section could have been achieved within 30 to 45 minutes of a decision being made to do so at the time the syntocinon was commenced, or, at the latest, when a further drop in the foetal heart rate made R anxious. It was plain that substantial further hypoxia and probably hypoxic damage would have been avoided by the decision to proceed with a caesarean. X would have accepted advice to that effect if it had been given. The team had been clinging to a strategy which was no longer defensible given both X and the foetus were at risk at that stage. There had been a negligent breach of duty by virtue of the failure to proceed to an emergency caesarean section either at the time the syntocinon was commenced or when there was a further drop in the foetal heart rate.

(3) On the evidence, there were concurrent cumulative causes of the intraventricular haemorrhage. B had satisfied the burden of proving that N’s breach of duty made a material contribution to his disabilities, Bonnington Castings Ltd v Wardlaw [1956] AC 613 applied.

E A Gumbel QC and H J Witcomb (instructed by Irwin Mitchell) for the claimant. R Seabrook QC (instructed by Eversheds) for the defendant.

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