HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) (30 November 2021)

This is the judgment upon the issue of breach of duty in a clinical negligence claim. [1]

By proceedings issued on 4 October 2019, C seeks damages for alleged medical negligence during an appointment at an antenatal clinic on 6 October 2004. C was subsequently born by emergency Caesarean section four days later on 10 October 2004, having suffered permanent damage from chronic partial hypoxia which has resulted in asymmetric quadriplegic cerebral palsy. [2]

Claimant’s case:

Mother was referred to the ante-natal clinic by her community midwife, who was concerned that C was in a breech position. [3]

It is not in issue between the parties that if mother had raised a concern as to reduced fetal movement, then D was negligent in failed to act upon it. [5]

Defendant’s case:

It is D’s case that:

(a) mother did not raise a concern as to reduced fetal movement with D on Wednesday 6th October;

(b) the note made by D who did not undertake the ultrasound, but saw mother after it had taken place, records active fetal movement;

(c) any concern which motherraised regarding reduced fetal movement would have been recorded and investigated; and

(d) after C [?mother] was admitted on Sunday 10 October 2004, no medical record sets out any reference to mother having experienced or been concerned about reduced fetal movements as at 6th October, but only on subsequent days. [6]

it was D’s case that the court should place considerable reliance on the contemporaneous medical records, as opposed to mother’s recollection of events such a long time ago. [7]

The issues for determination were wholly factual. It is also common ground between the parties that a maternal report at an antenatal clinic of reduced fetal movement is a matter requiring immediate further investigation. It is common ground between the parties that fetal movement was discussed between mother and D at the clinic appointment on 6 October 2004. The central issue for determination was what LJR said to Dr Salman about fetal movement on that date. [11]

medical records are usually of very considerable importance in clinical negligence cases. However, in this case they provide some, but only some, assistance on the central issue of fact. [116]

As I am satisfied that mother did raise a concern about reduced fetal movement at the clinic on 6 October 2004 she has established a breach of duty. [119]