ML (A Child) v Guy’s And St Thomas’ National Healthcare Foundation Trust [2018] EWHC 2010 (QB) (31 July 2018)

ML brings this action for damages… arising out of the circumstances of his birth on 26 January 2010. In the minutes before his delivery, ML suffered an acute, profound hypoxic-ischaemic injury to his brain, continuing until his resuscitation about one minute after his delivery, which has left him with devastating brain damage and serious disability… (paragraph 1)

The pregnancy went well… (paragraph 5)

On 25 January 2010, at about midday, three days before her due date and therefore “at term”, mother experienced a “Spontaneous Rupture of Membranes” (“SROM”) and she attended the hospital birth centre (“HBC”)… She was seen by a midwife in the ante-natal day unit who confirmed SROM. A cardiotocographic (“CTG”) trace was started which was normal. Contractions were 1 in 20 and irregular and SL was draining large quantities of pink stained liquor. She was advised to return if, among other things, her waters turned yellow or pink and she was booked for augmented labour on 26 January 2010… (paragraph 6)

…at about 11pm she noticed a yellow discharge…(paragraph 7)

…mother was admitted to the HBC… A CTG was started, which was normal. At 03.45, she was assessed by a senior obstetric registrar… who decided to start the induction with Syntocinon. At 04.45, a vaginal examination revealed that the cervical os was closed, soft, 1cm long and very posterior. Thick meconium was noted and Syntocinon was started. (paragraph 8)

At 13.30, Dr C further reviewed mother and the CTG. He also carried out his own vaginal examination. He assessed the CTG as pathological, with a baseline rate of 180 bpm and atypical variable decelerations associated with more than 50% of contractions for the previous 30 minutes. On vaginal examination, the cervix was fully dilated, the vertex was at the spines (i.e. there had been no further descent since 10.45) and the position was LOA (left occipital anterior)… Dr C carried out a further fetal blood sample and again the results were reassuringly normal in terms of fetal well-being… (paragraph 29)

…a retrospective note made by Dr C at 16.30… the initial plan had been to allow one hour for passive second stage… He then noted this: “Whilst debriefing patient after FBS, fetal bradycardia to 90 bpm noticed. Emergency buzzer pressed – decision for crash CS [caesarean section] at 13.55. Anaesthetist and theatres informed by myself. Both theatres currently occupied with C sections… Patient transferred to theatre…” (paragraph 30)

…The operation commenced at 14.16 and the Claimant ML was delivered at 14.18. (paragraph 31)

At delivery, ML was in poor condition… Cord blood gases showed an arterial pH of 7.22 and a venous pH of 6.9. This indicates that the cause of the sudden bradycardia at about 13.53 was likely to have been cord occlusion. ML was thus subjected to a period of acute profound hypoxia-ischaemia and brain damage probably started to ensue after 10 minutes, that is from about 14:03. The expert paediatricians have agreed that restoration of supply of oxygenated blood to ML’s brain was probably at about 1 minute after birth, that is by 14.19 and so he may have sustained 15 minutes or so of brain damaging hypoxic-ischaemia. However, clinically his condition is such that this appears to be too long a period and it may be that the hypoxic-ischaemia was intermittent, at least until the final ten minutes or so. (paragraph 32)

Despite the designation of this labour as high risk and despite the CTG abnormalities and the presence of thick meconium, I do not consider that there was a time prior to the terminal bradycardia at the end of labour when there was any obligation on the hospital staff to raise with SL the question of caesarean section because of concern over fetal wellbeing. I accept… that CTG abnormalities such as decelerations and meconium are poor predictors for what happened in this case and that the reason why CTG monitoring is undertaken is, except in the extreme case of a terminal bradycardia where the fetal heartrate falls to below 100 bpm and never recovers, generally decelerations or other fetal heartrate abnormalities give the obstetric team an indication to carry out fetal blood sampling in order to determine the baby’s wellbeing. Blood taken directly from the baby and measured is a much more definitive test and indicator of fetal wellbeing than a CTG and if, because the heartrate has recovered to the base line, there is time to carry out fetal blood sampling, then this should be done, assuming that the mother consents. When the result, as here, is normal, this is a clear indication that there is no need to change the existing management plan as long as the monitoring continues and further fetal blood samples are taken as indicated. (paragraph 91)

…the decision-making processes were in accordance with normal obstetric practice at each stage and that the outcome was not the result of any breach of duty on the part of the hospital.(paragraph 92)

…the claim must be dismissed… (paragraph 93)