There has been a first instance decision made this month which is quite significant in terms of birth injury. From a legal perspective it is interesting as it addresses issues which are often very difficult and important to mothers whose children suffer brain injuries at birth. The case concerned decisions around how a baby would be delivered in an emergency situation during a woman’s labour in 1996.
Our Medical Negligence and Serious Injury Partner Michelle Armstrong – who is herself a former midwife, summarises the key points below…
1) Montgomery consent – the Supreme Court ruled in the 2015 Montgomery case concerning a 1999 birth, that, because of developments such as the Internet and cultural changes etc, there was a move away from medical paternalism, characterised by a doctors know best mentality, to patients having autonomy, characterised by patients having involvement in decision making around their care. It was confirmed that doctors have a duty to take care to ensure their patients are aware of the risks of treatment and also to consider whether each particular patient would consider any particular risk to be more important to them.
This case was seen as something of a move away from the traditional view that the standard of care should be based upon what the reasonable doctor should have done, to take into account much more the counselling and involvement of the patient and the particular priorities each individual patient would have. This week, a court found in favour of the claimant on the basis of Montgomery and this was interesting because a) the judge felt that the right for the patient to be more involved in decision making extended back to 1996, three years before the birth in Montgomery; and b) the courts had previously been cautious around using Montgomery in delivery suite situations where decisions were made on an emergency basis as opposed to decisions made in consultations during the antenatal period, which is what Montgomery concerned. The judge felt that Montgomery did apply in this emergency situation and the patient had the right to be appropriately counselled and thereafter have the right to a caesarean section at that stage.
This is very encouraging in terms of demonstrating that the courts are prepared to listen to women, accept that they have a role in decisions around birth and mode of delivery, even at the advanced stages of labour. It is also encouraging that the evidence of the woman, as to what she said she wanted, was believed, as traditionally it has been quite difficult for women to persuade courts to accept their view of what decisions they would have, if they had appropriate counselling, as the courts can take the position that what women are saying is tinged by the benefit of hindsight – i.e. they are only saying they would have had a caesarean section now because they now know that this would have avoided their baby’s catastrophic injuries.
2) Causation in birth injury - In cases where there is a delay in delivering a baby, it is often the case that even with earlier delivery the baby would have suffered some level of brain injury. In general, it is very difficult to determine what level of disability could have been avoided with appropriate care. The traditional position is that if it is impossible to say (using medical science) how much of the overall injury was caused by the delay, but you can say that a delay made a material contribution to the overall injury, then the claimant can claim for all of their disability. In this case the Defendant sought to challenge this by suggesting that it is possible to determine how much injury would have occurred by broadly grouping babies into cohorts depending upon how long the hypoxia persisted and from there work out the extent of their likely disability. This case is important as the judge said that it is not possible to categorise children who suffer hypoxia according to how long they suffered hypoxia, as all babies are different.
It was also possible in hypoxia cases to say that minutes do matter and therefore where a baby suffers acute hypoxia i.e. their oxygen supply is completely cut off, then individual minutes are material and a small delay is therefore likely to have made a material contribution. Although this analysis was not actually relevant to the case before the judge, as he found that with appropriate care the baby would have avoided the whole of its disability, it is a good indication of the approach that the courts will take to situations where there would have been some injury in any event and that this can result in the Claimant recovering damages for all of their disability even though they would have had some disability in any event.
Overall the case is very positive for Claimant’s particularly in birth injury cases, where issues of consent and autonomy during the vigours of labour are often in issue and where establishing the degree of injury caused by the negligence can be problematic. However, whilst it is very encouraging, it should be noted that the Defendant is applying for leave to appeal the decision. It is hoped that if the matter is appealed the higher courts will uphold the approach of the first instance judge, which can only be of benefit to families who have suffered the devastating consequences of avoidable birth injury.