Baynham v Royal Wolverhampton Hospitals NHS Trust [2016] EWCA Civ 1249 (13 December 2016) Wilkes v De Puy [2016] EWHC 3096 (QB) (6 December 2016)

…an appeal by a young woman suffering from cerebral palsy against a decision that a 30 minute delay in delivering her by Caesarean section did not cause or materially contribute to her disabilities. The principal issue in this appeal is whether the trial judge erred in assessing the expert evidence. (paragraph 1)

On 22 August 2000 Ms Smith was pregnant at approximately 28 weeks gestation. At about 9pm she felt pain in her stomach… At about 10.50pm she suffered extreme pain… took her to hospital… Ms Smith arrived in hospital at 11.25pm. (paragraph 8)

…the registrar, attended at 11.30pm… he diagnosed pre-term labour. He noted that there was foetal bradycardia and decided that an emergency Caesarean section was required. (paragraph 10)

…diagnosis was incorrect. The cause of Ms Smith’s pain was placental abruption. Thus the need for a Caesarean section was even more urgent. (paragraph 11)

…matters did not progress with proper expedition. Ms Smith arrived in the operating theatre at 00.18 hours on 23 August. Attempts to administer a local anaesthetic were unsuccessful. Ms Smith was given a general anaesthetic at 00.32 hours. The claimant was born at 00.40 hours. (paragraph 12)

During the operation the placental abruption became apparent. There was a 200 ml retroplacental blood clot. (paragraph 13)

Over the following months it became clear that C had developmental problems. Further examination and tests revealed that she had asymmetric cerebral palsy, learning difficulties and epilepsy…(paragraph 19)

C contended that she ought to have been delivered by midnight on the night of 22-23 August 2000 and that the subsequent period of delay made a material contribution to her injuries. (paragraph 20)

D admitted that there had been 25 minutes of negligent delay, but denied that the delay had caused or contributed to C’s injuries. It was D’s case that C would have suffered precisely the same disabilities, regardless of whether she was delivered at midnight or at 00.20 hours or at 00.40 hours. Thus the central issue at trial was one of causation. The question was whether the negligent period of delay (whether the judge held it to be 25 minutes or 40 minutes or some period in between) had caused or contributed to C’s injuries. (paragraph 21)

D’s case was that the agreed mechanism [reperfusion injury following the hypoxic-ischaemic insult of the abruption] was the sole cause of C’s injuries. The placental abruption followed by loss of autoregulation of the fetal blood supply made it inevitable that reperfusion injury would occur after birth. That injury became inevitable well before midnight. Any negligent delay between midnight and 00.40 hours did not have any impact on the extent of the intraventricular haemorrhage or the extent of the white matter damage which was bound to occur after birth. (paragraph 26)

C’s case was that a second pathology was also operating… The placental abruption caused hypoxia-ischaemia, which caused progressively increasing injury until 00.40 hours, when C was born. (paragraph 27)

…this was a complex case. The experts on both sides accepted that there were factors pointing in favour of both analyses. (paragraph 29)

J held that the period of negligent delay was 30 minutes. C ought to have been delivered by 00.10 hours on 23 August 2000. In relation to causation, the judge preferred the analysis advanced by D’s experts. Accordingly, he held that the period of negligent delay had not caused or contributed to the claimant’s injuries. He therefore dismissed the claim. (paragraph 30)

J’s conclusion: “…event, not time mediated. There is nothing of significance that can be relied upon as clear evidence of a separate, time related hypoxic ischaemic event prior to birth… the evidence does not…. establish… that the delay in C’s delivery of 30 minutes resulted in her suffering an additional ischaemic insult that caused further damage and disability to that which she would, unhappily, have sustained in any event.” (paragraph 31)

…I do not accept any of the grounds of appeal. The judge made findings on complex issues which were in dispute between the expert witnesses. All of those findings were well open to the judge on the evidence before him. I would therefore dismiss this appeal. (paragraph 101)