Personal injury analysis: issues relating to memory and witness evidence continue to trouble the courts. The problems are particularly acute when witnesses are giving evidence many years after the events took place. The judgment in Sanderson (by her litigation friend) v Guy’s and Thomas’ NHS Foundation provides a good example of the difficulties that can arise.
What are the practical implications of this case?
The timing of various events was central to liability. However, it was important that the factual evidence was looked at realistically. The events in question all took place over 17 years ago. Although the key factual witness has some recollection of the events under scrutiny, her evidence was necessarily an exercise in reconstruction from what memory remained, the contemporaneous records and what the witness believed she would have done and thought from her knowledge of her practice at the time. Because of this a forensic scrutiny of the timing of events was bound to involve an element of imprecision.
There were other difficulties in relation to the contemporaneous records. Firstly, these were all written Firstly, these were all written in a block after the delivery had taken place. Secondly, the times ascribed to key events were taken from various different clocks, none of which was synchronised. The practice then adopted with regard to note keeping was also very different to what it is now. Proper allowance also had to be made for what were initially ‘high pressure’ and subsequently emergency circumstances. There was an ‘element of unreality’ to some of the questions put to the witness in attempt to refine the timeline down still further from that which she recalled. It was impossible now to ‘drill down’ to the exact fraction of a minute when a particular event had occurred.
What was the background?
The claimant’s mother was admitted to hospital in labour. Her labour was subsequently augmented by a syntocinon infusion. In the early morning the cardiotocography (CTG) trace began to show abnormal changes. That morning the unit was exceptionally busy. All the rooms were occupied and the unit had been closed to further admissions. Despite this women were still arriving. Because of the pressures on the staff the consultant obstetrician on call had come into the hospital to assist.
The consultant assessed the mother. The first criticism was that following this assessment, immediate steps should have been taken to deliver the baby by an instrumental delivery in the small room where the mother then was. There were considerable risks associated with this course both to the baby and to the mother including the fact that the baby was in a malposition and the head was fixed and did not move.
Further criticisms were made of the subsequent management by the consultant. It was alleged that she should not herself have left the room to fetch the necessary equipment. This was despite the consultant’s evidence that on a very busy night it was usually quicker to go oneself rather than wait for others to assist. It was also alleged that there was an unreasonable delay in obtaining the equipment and a further unnecessary and unreasonable delay in deciding to deliver in the room. These delays all contributed to the serious and permanent neurological problems from which the claimant now suffers.
What did the court decide?
In relation to the first criticism the court held that the consultant’s decision not to take immediate steps to deliver the baby by an instrumental delivery but to perform instead a fetal blood sample was reasonable. It was a decision which would be supported by a reasonable and responsible body of obstetricians at the time. It was not illogical but was based on a reasonable assessment of the fetal heart trace which, although pathological, did not indicate the need for urgent and immediate delivery. The decision was also supported by the consultant’s reasonable belief that proceeding immediately to an instrumental delivery in the small room where the mother then was carried an unacceptable risk of injury or death both to the baby and the mother. The claimant’s first criticism was rejected.
The court accepted that thereafter the circumstances represented an acute emergency and that every minute of delay in delivering the baby risked brain damage. However, the consultant was only too conscious of those facts. She herself characterised the situation as a ‘crashing emergency’. The court said it was important to keep in mind the practical difficulties that morning. The allegation that there was an unreasonable delay in obtaining the equipment and a further unnecessary and unreasonable delay in deciding to deliver in the room failed to acknowledge, or sufficiently acknowledge, the ‘real world’ of the unit that morning. The court therefore rejected the second criticism that there were culpable delays by the consultant in delivering the baby.
• Court: High Court, Queen’s Bench Division
• Judge: Lambert J
• Date of judgment: 10 January 2020
This article was first published by Lexis® PSL on 23/01/2020