Australia: Birth trauma claims and updated case law out of the United Kingdom

A recent judgment out of the UK that addresses a historical medical negligence claim may have interesting consequences for upcoming cases in Australia. Although there is no necessity for cases brought in the Victorian jurisdiction to follow suit, this birth trauma claim may provide some interesting commentary on how damages could be apportioned with injuries that are partially found to be caused by negligent treatment.

The claimant brought a medical negligence claim for birth trauma against the Royal Bath Hospitals NHS Foundation Trust and the Secretary of State for Health and Social Care regarding the treatment she received at birth.

In this blog, we provide a case review of: CNZ (Suing by Her Father and Litigation Friend, MNZ) v Royal Bath Hospitals NHS Foundation Trust (1) The Secretary of State for Health and Social Care (2) [2023] EWHC 19 (KB) ("CNZ").

THE BACKGROUND

The claimant's mother was 26 years old when she was pregnant with twins in 1996.

On multiple occasions, she requested that the twins be delivered by caesarean section, but her treaters declined her requests.

On 2 February 1996, she was admitted for induction of labour.

On 3 February 1996 at 00:01 am, twin one (the claimant's sister) was delivered by normal vaginal delivery.

The claimant asserted that twin two should be delivered within 30 minutes of twin one.

At 00:25 am, the CTG trace was reassuring.

The claimant's heart remained high in her mother's pelvis, and at 00:35 am, a decision was made to transfer them to theatre for an artificial rupture of membranes ("ARM").

Once in theatre, the claimant's mother declined the ARM. It was decided that the claimant instead would be delivered by caesarean section.

At 01:03 am, she was delivered by caesarean section in poor condition.

The claimant suffered significant birth trauma and was consequently diagnosed with quadriplegic cerebral palsy.

The claimant alleges that if her mother's treaters had not refused to perform a caesarean section rather than induce the labour, she would have been delivered sooner and avoided her ongoing injuries.

The defendants claimed that a caesarean section was not a reasonable treatment option to offer the claimant's mother during the antenatal period and that she did not request that treatment antenatally. The first defendant asserted that there was no negligence during labour and birth and that the requests for caesarean section were granted promptly.

THE STANDARD OF CARE

The circumstances of this case are similar to those considered in the previous matter of Montgomery v Lanarkshire Health Board ("Montgomery"). In that matter, the Court considered the extent to which a pregnant woman's autonomy should be taken into account with respect to her obstetric care. Further, it considered informed consent and what constitutes a reasonable standard of care when consenting a pregnant woman.

In CNZ, Ritchie J considered whether the standard that applied to informed consent in Montgomery could be applied retrospectively, and if it could, how far back should it be a relevant consideration. He found that in regards to clinical practice in 1996, "it probably does".

Ritchie J found that the treating registrar ignored the claimant's mother's wishes for a caesarean section rather than an ARM and that his actions were "too paternalistic", contrary to the key principles set out in Montgomery.

Further, he found that there were delays in transferring the claimant's mother to the theatre and that there was a lack of urgency by the registrar even though he was aware that the 30-minute time frame recommended for twin two to be delivered by, was about to expire.

Ritchie J determined that the claimant should have been delivered by 00:56 am.

DID THE DELAY IN PERFORMING A C-SECTION CAUSE THE BIRTH TRAUMA INJURY?

Ritchie J found that the claimant suffered from acute profound hypoxic ischemia lasting approximately 16 minutes and that during those 16 minutes, she suffered from bradycardia from 00:50 am to 01:06 am.

He found that the claimant's severe lack of oxygen and blood flow to their body could have been prevented. This could have happened if the doctor had listened to the parents and offered them a caesarean section earlier, as the parents had suggested.

Ritchie J also found that as the expert evidence was that the claimant's brain damage would not have occurred in the first 10 minutes of acute profound hypoxic ischemia, on the balance of probabilities, she would have avoided the brain damage, having saved approximately 6.5 minutes.

There had been extensive arguments between the parties regarding the extent to which the breach materially contributed to the harm she suffered rather than caused it in totality.

As there was no consensus in the evidence given as to the amount of damage that likely occurred as a result of the hypoxia following the first 10 minutes, Ritchie J held that it was difficult for the Court to do anything other than award damages in full.

WHY DOES THIS MEDICAL NEGLIGENCE JUDGMENT MATTER FOR CLAIMS IN AUSTRALIA?

Clinicians may be obligated to properly discuss risks and alternative procedures with a pregnant woman, not just antenatally but during labour as it progresses.

If there is enough evidence, a court can divide the harm caused by an incident into different parts. They can decide which parts of the harm would have happened anyway, even if the incident hadn't happened. This is called apportionment of damages.

Ritchie J, a judge, made some comments about this, but they were not necessary for the decision in that case. So, we don't know what the court will decide about apportionment in the future.

Hold onto your hats. This is unlikely to be the final decision in regard to this matter, as permission to appeal has been sought by the defendant in respect of apportionment.