C seeks damages for losses arising out of the stillbirth of her son, Kyron, on 7 July 2008 whilst she was an inpatient at D’s Hospital (“the Hospital.”) C’s case is that she would not have suffered nervous shock and consequential Post Traumatic Stress Disorder and Obsessive Compulsive Disorder had Kyron been born alive. [1]
C was booked to give birth at the Hospital with an estimated date of delivery of 16 September 2008. [5]
Initially the pregnancy was unremarkable. [6]
D takes issue with the C’s factual account of events from 1700 hrs on 6 July 2008 and, in particular, her case as to her developing symptomatology… a massive placental abruption probably occurred at approximately 0645 hrs on 7 July 2008 [17]
The issues for determination can be summarised as follows:
i) How are the conflicts of fact to be resolved as to how events unfolded from approximately 1700 hrs on 6 July 2008 to abruption at around 0645 hrs on 7 July 2008?
ii) Subject to the findings of fact, can C prove breach of duty in the way that the midwives administered care and treatment from approximately 1700 hrs on 6 July 2008?
iii) If C can prove breach of duty, what would have occurred but for that breach of duty? In particular, can C establish medical causation to the effect that Kyron’s death would have been avoided? [21]
the guidance in Gestmin that the court must avoid the error of assuming that stronger and more vivid feelings and/or confidence of recollection make it more likely a recollection is accurate. Gestmin suggested that factual findings be based “on inferences drawn from the documentary evidence and known or probable facts.” The Court is assisted in this case by contemporaneous documents (ie the medical records) and has expert evidence, particularly from the obstetricians, to assist with the determination of probable facts. I adopt the approach suggested in HXC that Court take the medical records as a starting point and that such entries are likely to be a correct and accurate record. However, I must bear in mind any other evidence that establishes that the medical records are inaccurate. [108]
The hard, medical evidence does not demonstrate that it was probable as opposed to possible that Kyron would have been safely delivered before the fatal abruption at 0645 hrs [153]
C is right to be aggrieved at the negligent standard of care afforded to her by D over the evening of the 6 and into the 7 July 2008. However, the sad reality is that, even if the standard of care had not been negligent, the probability is that Kyron would not have been safely delivered before the abruption. [154]
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