C sustained brain injury as a result of an acute, profound hypoxia-ischaemia (“APH”) at the time of his birth on 22 July 2012. He claims damages for alleged negligence surrounding the circumstances of his birth whereby it is alleged that, with appropriate monitoring, deterioration in his heart rate would have been observed prior to delivery and this would have led to delivery being expedited, thereby avoiding the damaging period of APH and leaving him neurologically intact. [1]
Certain matters were agreed between the parties’ experts in advance of trial, and these formed an essential background to the issues which arose on the trial of liability and causation. Thus:
(i) MRI imaging of Jayden’s brain dated 1 August 2012 was consistent with an acute, near-total, profound hypoxic-ischaemic insult;
(ii) Jayden was born in an asphyxiated condition, with a heart-rate of less than 40 beats per minute (the range of normality is 110-160 bpm);
(iii) Circulation to his brain was restored when his heart-rate increased to over 100 bpm: this was not until 7 minutes after birth;
(iv) A normal, healthy fetus/baby can withstand 10 minutes of APH before the brain starts to become damaged;
(v) The APH commenced approximately 8 minutes before birth, and was caused by umbilical cord compression or occlusion;
(vi) During that period of prenatal APH, the fetal heart-rate would have been severely bradycardic (probably in the region of 40 bpm);
(vii) The APH became damaging from around 2 minutes after birth;
(viii) Delivery 3 or more minutes earlier than the actual time of birth would have avoided all permanent brain damage. [3]
C was born at 15.11 hours on 22 July 2012. The above agreed matters can therefore be translated into the following timeline:
15:03 Start of APH and severe bradycardia;
15:08 Time by when delivery of Jayden would have avoided all permanent brain damage;
15:11 Time of actual delivery: Jayden born severely asphyxiated with a HR of 40 bpm or less;
15:13 Start of brain-damaging APH;
15:18 Restoration of circulation to brain and cessation of APH, by which time Jayden had sustained 5 minutes of brain-damaging APH.
In the above context, the principal issue at trial was whether there was negligence on the part of the hospital staff in the management of the labour of Jayden’s mother, Janene, and whether, but for such negligence, Jayden would have been delivered at or before 15:08 so as to avoid all permanent brain damage.[4]
There would have been such [complicated variable] decelerations following the majority of contractions from at least 14:45 and I find there was a breach of duty on the part of D to have failed to detect them on intermittent auscultation from that time. This should have led to the instigation of CTG monitoring and an emergency call being made for the attendance of an obstetrician. [48]
all permanent damage to C’s brain would have been avoided if he could have been delivered 3 minutes earlier. I have no doubt that, but for the breaches of duty which I have identified, that would have happened. [50]
Judgment for C [51]
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