In the recent case of Astley (A minor by his father and litigation friend Craig Astley) v Lancashire Teaching Hospitals NHS Foundation Trust  EWHC 1921 (KB), expert evidence from Obstetricians showed that an 11 year old boy’s (B) brain injury was caused by prolonged umbilical cord compression that resulted in acute profound hypoxia – lack of oxygen – sustained during the management of the birth. Evidence concluded that midwives did not accurately monitor B’s heart rate during labour and failed to identify his bradycardic (slow heart rate) during delivery. It was also shown that the midwives had fabricated some of the notes taken down concerning the birth.
In his judgment, Mr Justice Spencer said it was agreed that all permanent damage to B’s brain would have been avoided if he had been delivered three minutes earlier.
Background to the decision
M, B’s mother, had an uneventful pregnancy. She went into spontaneous labour on 22 July 2012 with regular, strong contractions commencing at 08:30. She was admitted to the maternity unit of Royal Preston Hospital at 10:10 by Midwife K, who was assigned to M and was responsible for her care for the duration of her labour until B’s delivery at 15:11.
B was born not breathing, and had to be resuscitated. There was meconium on his skin and the umbilical cord was wrapped thrice round his neck.
B brought a negligence claim against the Defendant NHS Trust on the following grounds:
- Failing to pay adequate attention to the fact that M was passing blood-stained liquid, failing to commence CTG monitoring and failing to request a medical review from about 12:45 onwards.
- Failing to identify the Claimant’s foetal heart rate abnormality in the form of complex variable decelerations from about 14:45 onwards;
- Failing to identify the Claimant’s bradycardia from about 15:03 onwards.”
The expert evidence
Two “eminent” Obstetricians, Mr U and Professor S provided evidence at the five-day trial. Mr U stated in his report:
“… injury on MRI is attributable to acute profound asphyxia only. Therefore, in my opinion based on the balance of probabilities, it is likely that cord compression occurred in the second stage of labour leading to FHR collapse, probably related to the cord round his [B’s] neck and body and changes in [M’s] birthing positions. It is my further opinion that an FHR bradycardia of sufficient duration and severity to cause [B’s] condition at birth ought to have been detected by a competently conducted IA.”
He went on to say:
“If CTG monitoring had been in place or the IA conducted competently it would have been possible to deliver the baby with episiotomy within 5 minutes of the onset of bradycardia since his head was already visible by 14.45, advancing with effort, the labour was efficient, and Janene was parous. If the midwife had summoned the doctor instead and prepared for instrumental vaginal delivery, and the doctor arrived within 2 minutes, the doctor would have delivered the baby with episiotomy within 2 – 3 minutes or ‘lifted the baby out’ with a vacuum device, also within 2 -3 minutes.”
In his oral evidence, Mr U also explained the meaning of ‘variable decelerations’ to the Court.
When questioned about the allegation in the Particulars of Causation that CTG monitoring would have identified any significant foetal heart abnormality, Professor S stated
“If CTG monitoring had been in place, given [B’s] condition of birth and the fact that the umbilical cord was wrapped three times around his neck, I would have expected to see variable decelerations in the fatal heart rate produced by umbilical cord compression prior to the birth. They would likely have appeared as the baby’s head descended through the birth canal, some time before the actual birth itself. The timing of the appearance of the decelerations would depend on the rapidity of head descent; one would not expect to see them until the umbilical cord was compressed or tightened as the head descended. This could have been as little as 10 min before the birth, or possibly up to an hour prior to the birth. As there was no indication for CTG monitoring, and therefore it was not performed, it is not possible to know when the variable decelerations would have appeared. Interference with blood flow between the baby on the placenta is unlikely to have occurred until the umbilical cord was compressed or tightened”
The Court’s decision
Based on the expert evidence of the Obstetricians, Mr Justice Spencer concluded that:
“…all permanent damage to Jayden’s brain would have been avoided if he could have been delivered 3 minutes earlier. I have no doubt that, but for the breaches of duty which I have identified, that would have happened.”
Mr Justice Spencer also stated that he accepted Mr U’s expert evidence that the time interval from an obstetrician being called to delivery being effected would probably have been no more than five minutes. Having detected complicated variable decelerations and having both converted to CTG monitoring and called for an obstetric review, an experienced midwife such as Midwife K would have started to prepare for delivery, including instrumental delivery. This would have included the putting of the mother in lithotomy and the cutting of an episiotomy. As Mr U observed, this might have achieved earlier delivery, even before the obstetrician arrived.
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