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Sanderson v Guy's and St Thomas' NHS Foundation [2020] EWHC 20 (QB).

Legal Update by Bethan Davies (Pupil).

Facts 

The Claimant suffered from moderately severe cerebral palsy resulting from a short period acute brain hypoxia in the minutes preceding her delivery in February 2002. 

Two allegations of breach of duty were tried by Lambert J. Firstly, it was alleged that the  decision of the consultant obstetrician to perform a fetal blood sample as opposed to proceeding straight to an urgent delivery following a what the Claimant contended was a prolonged deceleration of fetal heart rate. Secondly, it was alleged that there was a delay in instrumental delivery after a period of bradycardia. In the event that the Court found the allegations of negligence were made out, a causation issue arose as to whether the Claimant’s delivery would have taken place earlier, such that the period of hypoxia would have been avoided or shortened. 

Judgment

Lambert J attempted to reconstruct a detailed timeline of the events in question from the evidence, however the case highlights the difficulty of litigating events that occurred almost 2 decades ago, specifically as the salient timeline occurred over a period of a mere 17 minutes.  As recognised by Mrs Justice Lambert, “a forensic scrutiny of timings, 17 years after the events in question, is bound to involve an element of imprecision”. [68] 

As to the first allegation of breach of duty, the Court identified contradictions within the Guidelines as to the correct approach for an obstetrician to take following from a period of 3 minutes of bradycardia.

Lambert J stated that:

“The Guidelines are useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement.” [79] 

Rather than a “formulaic application” of the Guidelines, an approach accommodating for "real world" analysis was favoured; thereby centralising the Court’s focus on how the reasonably competent clinician would act, distinct from deifying the guidance. [80] 

On this basis, the Court concluded that the Claimant’s trace did not render the taking of a fetal blood sample inappropriate and neither did it mandate urgent delivery. The consultant obstetrician’s responses had been appropriate and reasonable in the circumstances. [88] 

As to the further delay in instrumental delivery after a period of bradycardia, the issue was distilled to a question of whether it was unreasonable for the consultant obstetrician to spend between 3 and 4 minutes away from the delivery room collecting the equipment that she needed, as opposed to no longer than 2 minutes. [98] 

On the basis of the evidence of fact from the consultant obstetrician, Lambert J found she had acted as quickly as she could, and any time away from the room could not reasonably be criticised. The timeline could not be analysed in a vacuum, rather the context of “practical difficulties in the “real world”” was salient; the events in question occurred on an exceptionally busy ward with limited staff. [102] 

Accordingly, the claim was dismissed.   

Comment 

The case highlights the difficulties faced by all parties when events which occurred some time ago are litigated. This difficulty was felt particularly acutely in this instance as the events the Court was asked to analyse occurred within an incredibly short window of time. 

Lambert J made clear the importance of contextualising clinicians’ decisions when evaluating them; for any meaningful analysis to be made, the Bolam test cannot be applied in a vacuum. The potency of salient external factors and surrounding circumstances is likely to fade in cases where these is a significant lapse of time between the index accident and litigation, yet Counsel must remain attuned to the realities of clinical decision making. Whilst the practical difficulties experienced by clinicians cannot provide a carte blanche, they are far from irrelevant when considering the reasonableness of decisions. 

The judgment further makes clear that rather than treating Guidelines as sacrament, they should be regarded with objectivity and an appreciation for the importance of a clinician’s “real world” analysis.

 

Bethan Davies

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