- Head of Medical Negligence
Medical negligence cases involving injuries at birth can present difficulty for pursuers when attempting to prove the facts.
In particular, the drawing of a causal link between any negligence on the part of the professionals dealing with the pregnancy and the actual damage suffered by the child can be perilous, with both sides producing complex expert reports to bolster their position.
We can provide advice on all aspects of cases of medical negligence, such as the ones raised in this article.
The recent Inner House decision in AW (as legal representative of LW) v Greater Glasgow Health Board  CSIH 58 provides a number important points for those bringing cases to court. It is also a demonstration of the powers of the Inner House when hearing an appeal from a decision of a lower court.
It is also one of the strongest judgments in recent times in criticising the approach and reasoning, or lack of reasoning, of the judge at first instance.
The case concerned the management of the pregnancy of AW and the birth of her child, LW, who was born with cerebral palsy. In particular, the questions concerned the events in the early October period around the time of LW’s birth.
AW was confirmed as pregnant in April 1996 with an estimated delivery date of 2nd December that year. On the 5th October, midwives attended AW at her home. AW told them that she was exhausted, hot and puffy in the face and had been suffering from headaches. She was also concerned by a reduction in movement of the foetus and a lack of noticeable growth in her bump. The midwives did not measure her blood pressure and told her she was fine.
On 7th October, AW reported to her physiotherapist that she was suffering from a sharp abdominal pain. She was referred for a scan that afternoon. The scan suggested the presence of a retro-placental clot and she was admitted for a delivery within forty-eight hours. At 3.10pm, AW was diagnosed with Intrauterine Growth Restriction and pre-eclampsia by a Consultant Obstetrician, who recommended an immediate emergency delivery.
During the delivery, there was a 13 minute “dark period” where no cardiotocography (CTG) measurement was being taken and the foetus’s heartbeat could not be recorded. The foetus appeared to suffer an Acute Hypoxic Ischaemic Insult (AHII) around 20 minutes before birth which continued until the baby was six minutes old. A subsequent diagnosis of cerebral palsy was made by the medical team.
The opinion of the lower court was issued in July 2015, a full one year after the 12-week proof on liability and causation had ended. Although the Lord Ordinary found the actions of the midwives on 5th October to be negligent, the case did not succeed as the court said it could not be shown that a referral to hospital on on 5th October would have led to delivery prior to the AHII taking place.
AW appealed, and the health board cross-appealed, the Lord Ordinary’s decision.
On appeal, on the question of negligence, the Inner House had no reason to question the Lord Ordinary’s decision. There was significant expert evidence stating that an ordinarily competent midwife presented with the AW’s symptoms would take their blood pressure and refer them to hospital for a CTG. Further, the Inner House found that the foetal symptoms alleged by AW were further cause to refer and that in not doing so the midwives had acted negligently.
On the Causation 1 issue, the Inner House accepted the position of the Lord Ordinary that there was not sufficient evidence to suggest that a referral on 5th October would have led to delivery earlier than it did, in fact, take place. The judges noted that drawing realistic conclusions from the evidence, on the balance of probabilities, was not easy but concluded that the pursuer, AW, had not met the requirement needed to prove the case.
A large part of the Inner House’s judgment is devoted to the Causation 2 issue. The Inner House criticised the Lord Ordinary’s cursory handling of this question. As a result, the judges felt it was necessary to assess all of the evidence in depth, and in the manner more usually expected of the lower court.
Detailed expert evidence had originally been led by both parties as to whether or not LW’s cerebral palsy was a result of the AHII or if it could have been caused by damage predating the 7th October events.
Having reviewed the evidence of twelve experts, the judges came to the conclusion that it was not able to state it was more likely than not that the cerebral palsy was a result of the AHII.
There are three key points to take away from the Inner House’s judgment in AW:
Proving negligence by the medical professionals involved is just the first step towards succeeding in a clinical negligence case. A causal link between the negligence and the injuries must also be proven on the balance of probabilities. Cerebral palsy can have a number of causes, and linking them to one specific incident can be an uphill struggle for a pursuer.
In LW’s case, he was born severely underweight, even for a 32 week-stage foetus. The court found it was “at best a possibility” that up to the time of delivery LW was a healthy foetus with no developmental damage. Foetal movement had already reduced prior to admission for delivery, indicating there was already the potential for some form of underlying foetal damage.
It is important to note that the Inner House, in issuing its judgment held that the court is not required to find a specific alternative explanation for the damage; the onus is on the pursuer to prove that the negligence was the direct cause of the damage. With a plethora of complex expert opinion on both sides, the court was not able to say that the pursuer had managed to do this.
The appeal in AW was slightly unusual in that it was largely an appeal based on the Lord Ordinary’s findings in fact, rather than interpretation of legal questions. The court provides useful guidance on when it is appropriate for an appeal court to reassess questions of fact considered by the court of first instance.
The court noted that it is generally best to defer to the findings of a Lord Ordinary when it comes to the assessment of primary questions of fact. The Lord Ordinary has the benefit of assessing the witnesses at first-hand, and considering issues such as their demeanour when giving evidence. When it comes to expert witnesses, the court has a greater discretion. Expert witnesses do not provide evidence as to primary facts (what took place) but opinions on secondary issues (what effect did the primary facts have).
It is appropriate for an appeal court to consider whether or not the judge at first instance came to the correct conclusions. For example, when it comes to assessing questions of causation, the court can examine the logical approach used by experts and find that one’s process is preferable over the other.
Some of the Inner House’s harshest criticism is directed at the Lord Ordinary and the manner in which he dealt with the Causation 2 question. Having found that the pursuer failed to pass the Causation 1 test, the Lord Ordinary devoted only three paragraphs to the question of whether LW’s cerebral palsy was a result of the AHII.
Given there had been 15,000 pages of evidence, twelve expert witnesses on the issue and a 51 day proof of which 26 days had been dedicated to this issue, the Inner House held that this treatment was a breach of the Lord Ordinary’s duty to provide a fully reasoned judgment. Indeed, they held that he had not made a judicial statement on the issue and that the Inner House therefore had a duty to make findings of fact in relation to this issue.
Pursuers should note this finding when they receive a first instance judgment. Parties are entitled to a fully reasoned judgment on all issues, even if they fail on a prior point. A common example cited by the Inner House is that even if a personal injury action fails, it is sensible for the Lord Ordinary to provide a reasoned decision as to quantum, in case their decision is appealed.
This case shows that how it can be difficult for a pursuer to succeed in actions for clinical negligence and particularly in the complex cases of injuries at birth.
Anderson Strathern has a specialist team dedicated to medical negligence cases, including two Law Society Accredited Specialists amongst its ranks, which can assist with investigating and preparing cases on negligence and causation.