Introduction
The claimant (LN) and his mother (MC) are subject to an anonymity order by the judge and are therefore referred to by these initials throughout.
Summary
The trust admitted breach of duty in managing MC’s labour through administration of syntocinon, a drug used to induce or accelerate contractions. This occurred in September 2016. LN now suffers from ongoing medical issues including microcephaly, problems with both fine and gross motor skills, speech and language difficulties and delayed social skills. At issue was whether the admitted breach caused LN’s medical problems.
Detail
LN was delivered vaginally. He was blue and floppy, with a heart rate of circa 100 beats per minute. A large right-sided pneumothorax (breach of the lung surface, causing it to collapse) was discovered. Following local treatment which included intubation and passive cooling, he was transferred to a neonatal intensive care unit and then transported to St. Mary’s Hospital, Manchester where an MRI scan of his brain revealed a possible area of haemorrhage or calcification but was otherwise normal. There was no evidence of hypoxic ischaemic encephalopathy (HIE) changes. LN was discharged from St. Mary’s on 25 September 2016, his main problems being stated to include moderate neonatal encephalopathy.
It was alleged on behalf of LN that he was caused to develop HIE due to the trust’s negligence. The trust denied that he suffered from HIE, or that even if he did, it was not caused by the admitted breach.
It was agreed that LN was born with the umbilical cord round his neck and that this caused acute hypoxia with associated foetal bradycardia. Likewise, it was agreed that he may have developed HIE, and that if he did, it was of mild to moderate severity. He also suffers retinal dystrophy, which has a genetic cause and is unrelated to the management of labour.
The trial necessarily concentrated on expert evidence, from a large range of specialisms including obstetrics, neonatology, radiology, neurology, paediatrics and ophthalmology. There is insufficient space to detail all their opinions, but suffice it to say, Judge Pearce in drawing them together concluded that “the available objective signs do not hang neatly together to produce a coherent picture”. In general, he thought the experts were doing their best to assist the court, but none had “been able to come up with a formulation which is consistent with all of the evidence”.
Decision
There was no doubt that the CTG trace showed evidence of uterine hyperstimulation (due to the administration of Syntocinon), but it was unlikely on the available evidence that LN was significantly acidotic because of any hypoxia consequent upon that hyperstimulation. Had there been such acidosis, the venous blood gas pH would have been much lower. None of the experts had been able to explain this discrepancy.
No expert had positively asserted that the child’s developmental delay could not have been caused by a genetic syndrome that had also been the cause of his retinal dystrophy. The evidence as to what precisely was the nature of LN’s condition was relatively imprecise.
On balance, Judge Pearce was not persuaded that LN suffers from the continuing consequences of HIE. Some of his symptoms, whilst not inconsistent with the long-term effects of HIE, were not sufficiently compelling as to show that to be the case on the balance of probabilities. Whilst he was satisfied that LN had suffered HIE as a consequence of the trust’s breach of duty, the claimant could not show on the balance of probabilities that he had experienced anything other than the immediate depression of his condition. Even in respect of his birth condition, he could not demonstrate that his pneumothorax was a consequence of the breach of duty.
For these reasons, even though the case had been comprehensively explored by experts and lawyers, the claim failed.
Comment
In negligence litigation, the claimant must prove his/her case on the balance of probabilities, which means above 50%. It is quite rare for a judge to be unable to reach firm conclusions on causation, despite having been assisted by a large number of eminent experts. However, that was the case here. The medical picture was complex and in the judge’s view, no one line of thought completely explained all the disparate features. The burden of proof is always on the claimant, and therefore if a judge is unable to conclude on the balance of probabilities that certain expert opinions explain everything, the claimant’s case must fail. That is so even where, as here, breach of duty has been admitted.
