NKX (By his mother and litigation friend NMK) V Barts Health NHS Trust

[2020] EWHC 828 (QB)

Deputy High Court Judge Simeon Maskrey QC

Introduction

The purpose of this guideline is said to be to provide evidence-based information to inform the antenatal and intrapartum care of pregnant women who have had previous caesarean delivery, with the options for delivery being either planned vaginal birth after previous caesarean delivery (VBAC) or elective repeat caesarean section (ERCS).

The guidance does set out the risks associated with VBAC:

Women should be made aware that successful VBAC has the fewest complications and therefore the chance of VBAC success or failure is an important consideration when choosing the mode of delivery.

Women should be made aware that the greatest risk of adverse outcome occurs in a trial of VBAC resulting in emergency caesarean delivery.

Women should be informed that planned VBAC is associated with an approximately 1 in 200 (0.5%) risk of uterine rupture.

Women should be informed that the absolute risk of birth-related perinatal death associated with VBAC is extremely low and comparable to the risk for nulliparous women in labour.

Women should be informed that ERCS is associated with a small increased risk of placenta praevia and/or accreta in future pregnancies and of pelvic adhesions complicating any future abdominopelvic surgery.

The risk of perinatal death with ERCS is extremely low, but there is a small increase in neonatal respiratory morbidity when ERCS is performed before 39+0 weeks of gestation. The risk of respiratory morbidity can be reduced with a preoperative course of antenatal corticosteroids.

Relevant to this case the Guidance provides:

“There should be continuous monitoring of the labour to ensure prompt identification of maternal or fetal compromise, labour dystocia or uterine scar rupture.”

The Facts of the Case

This claim was brought on behalf of the claimant by his mother (NMK) and the trial was restricted to issues of liability and causation. This was NMK’s second pregnancy. Her first child was born by caesarean section in 2013. When she attended her booking visit she was advised by the midwife that she was a candidate for vaginal birth after caesarean section (VBAC).
NMK appreciated that there were risks and disadvantages with VBAC but she understood that they would be minimised by close monitoring. She stated she did not appreciate the difference between continuous fetal monitoring and intermittent auscultation.
She also attended a VBAC clinic appointment at which point there was a further discussion about risks and benefits and a pro-forma was read out. The pro-forma made it clear that an advantage of VBAC was that it could be regarded as a more satisfying and positive birth experience for a mother than caesarean section.
The pro-forma did not mention brain damage or consequences of hypoxic-ischaemic encephalopathy. In evidence one midwife said that the ethos of midwifery staff at the hospital was that mothers should give birth naturally if possible.
At a further visit in April there was discussion about the birth plan. At this point NMK was interested in the possibility of a water birth and using the birthing centre rather than labour ward. The birthing centre was a midwifery led unit normally used for low risk pregnancies although one room had continuous fetal monitoring available. The court found that at this time NMK was not discouraged from having a water birth at the birthing centre and she was not advised that this could lead to increased risks for the baby.
Towards the end of April NMK had a further meeting and it was held this was the crucial consultation as the purpose was to agree the birth plan. The court found that it was essential at this meeting to ensure that the mother was alerted to the risks and benefits of the options for delivery, but equally the discussion should not effectively remove the mother’s right to choose her birth plan.

There was competing factual evidence from NMK and the midwife about what occurred at this visit. The midwife stated that she made the risks clear and specifically referred to the fact continuous monitoring was recommended by the Royal College of Obstetricians and Gynaecologists. NMK signed the note attached to the birth plan as this was the recommendation but said she did not understand the advantages and disadvantages of intermittent and continuous fetal monitoring. She assumed there would be a further discussion with doctors prior to delivery.
The court accepted the midwifery evidence as NMK was an intelligent woman who could not fail to appreciate the difference between continuous and intermittent monitoring, she had read the leaflet on VBAC and there was also a reference in the midwifery note to the College Guidance. Interestingly despite the fact that the note did not document the discussion on risks and benefits the court was satisfied there had been such a discussion.
By 19^th May the pregnancy was 3 days beyond term and NMK expressed a desire not to be induced and a caesarean section was booked for 28^th May. However, she went into labour on 23^rd May at 41 weeks gestation and attended hospital and initially was in a triage area as it was a bank holiday.
The Midwife who met her gave evidence that NMK immediately asserted that she was to be delivered in the birth centre with intermittent auscultation and that she refused continuous CTG monitoring. She said that she explained the risks of intermittent auscultation and the fact something may be missed. She was supported by another midwife who said she was shocked by the demand. The triage notes contained no record of this. NMK denied this occurred.
The court did not accept the evidence of the midwives on this point and gave reasons for rejecting it. Of importance was the lack of any clinical note that NMK had refused CTG monitoring and insisted on intermittent auscultation, there was no reference to this at the time of the internal investigation, and neither a senior midwife or the Obstetric Registrar had been made aware of this at the time.
NMK was transferred to the birth centre and the admitting midwife questioned why she was being managed there as she was VBAC. Prior to NMK going into the birthing pool the abdomen was not palpated to assess contractions, whether the scar was tender, or where to place the sonicaid. She entered the birth pool with no assessment of whether she was in the second stage of labour.
At this point NMK was in significant pain, and she said it was not subsiding between contractions. The midwives proceeded on the basis she was having contractions. The midwife caring for her in the birth centre had never managed a VBAC.
There was intermittent auscultation and at 01.15 the midwife picked up a deceleration that did not appear to be recovering and she pressed the emergency buzzer and an emergency caesarean section was performed. There had been a uterine rupture. The claimant was born in a poor condition and subsequently has been confirmed to have a cerebral palsy

The claimant’s case

The claimant argued that there had been no sufficient warning that there should be continuous fetal monitoring during labour, and had she been given appropriate warnings she would have accepted continuous fetal monitoring rather than monitoring by intermittent auscultation.
Had there been continuous fetal monitoring abnormalities would have been detected in the fetal heart rate earlier than had been noted and the baby would have been delivered earlier, thus avoiding some of the acute profound hypoxia that did occur when the uterus ruptured and some or all of the permanent brain damage that occurred.
There was also a secondary case advanced at trial that if the court found that intermittent auscultation was acceptable, this should have been done more frequently and that increased frequency would have resulted in earlier detection of the uterine rupture.

The defendant’s case

The midwifery staff evidence was that NMK wished a water birth and did not want continuous monitoring. The defendant argued that even if there had been continuous fetal monitoring there was no reason to suppose that this would have given sufficient early warning of impending uterine rupture and there was no reason to suppose that delivery would have been achieved early enough to avoid damaging hypoxia. The defendant argued that the alleged duration of the hypoxia was more likely to have been around 35 minutes.

Findings of the court on breach of duty

Judge Maskrey QC made no findings of fault in relation to counselling prior to labour commencing. However, the experts agreed that there was a need to have further discussion when NMK attended hospital in labour and the court found that it had not been done. There was no assessment of whether the midwife in the birthing unit was capable of managing a VBAC labour.
It was held that repeated counselling and re-assessment should have set out the risks inherent in not having continuous monitoring, and should also have emphasised that the close monitoring the parents had expected could not be guaranteed as the unit was so busy. The parents should have been told continuous monitoring could not happen in the pool as there was no available wireless CTG monitor and there may be no staff with sufficient experience to care for a VBAC mother without continuous monitoring.

“..there should have been a re-statement of the risks to the Claimant’s parents on admission on the 23^rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM.”

It was also found there were breaches of duty in management of the labour in failing to appreciate that NMK was in the second stage of labour, and failing to perform intermittent auscultation every 5 minutes thereafter. An obstetrician should have been called when there was a complaint of continuous pain.

Causation

The first aspect of causation is what NMK would have done had there been a re-assessment and discussion when she attended hospital. NMK’s witness statement did not cover this in detail and the evidence came from the father who confirmed that his wife was risk averse and she would have followed the safest course of action.
Had it been appreciated that NMK was in the second stage of labour it was also held that she would have accepted intermittent auscultation every 5 minutes from 00.45.
The court then required to consider whether if there had been continuous monitoring or intermittent auscultation every 5 minutes there would have been evidence of fetal heart rate abnormalities, when this would have occurred and whether this would have led to an earlier delivery that would have had an effect on the brain damage suffered by the claimant.
To determine the issue of causation the judge first required to make a finding in fact when the uterine rupture occurred assisted by expert witness evidence. He found that it probably occurred between 00.45 and 01.00.
The claimant’s experts Dr Dear (Neonatologist) and Dr Thomas (Paediatric Neurologist) were of the view that the claimant has suffered 25 minutes of acute, profound hypoxia. If delivery had occurred prior to 01.34 the Claimant would have avoided all permanent brain damage.
The defendant’s experts Dr Emmerson (Neonatologist) and Dr Smith (Paediatric Neurologist) were of the view that the claimant sustained 35 minutes of acute, profound hypoxia and that the claimant required to be delivered by 01.28 to avoid all brain damage.
The experts did not agree on the issue of when decelerations occurred in the context of uterine rupture and the court preferred the evidence of the claimant’s expert.
The claimant did ask the court to reverse the burden of proof on when the rupture occurred because the fact there was no evidence on the issue was directly caused by the defendants breach of duty in not performing continuous fetal monitoring. The court refused to do so.
However, the court did find that whether there had been continuous monitoring or intermittent auscultation every 5 minutes decelerations would have been noted and the baby would have been delivered 15 minutes earlier and the claimant would have sustained brain damage but it would have been mild, rather than severe. The parties had agreed what would constitute mild disability.

“It follows that if the bradycardia commenced at 01.14 hours damage would have would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case.”

Comment

This is an interesting case with a number of issues for discussion. Yet again the importance of making clear, accurate and contemporaneous notes is emphasised.
The GMC Guidance [2] provides:

The documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards.

Clinical records should include:

a. relevant clinical findings
b. the decisions made and actions agreed, and who is making the decisions and agreeing the actions
c. the information given to patients
d. any drugs prescribed or other investigation or treatment
e.  who is making the record and when.

The BMA also provides clear information on record keeping and also specifically states that records should not be altered or tampered with [3].
The MDU provides [4]:
Records should be made straight away or as soon as possible after patient care. Records are primarily intended to support patient care and should authentically represent each and every consultation (including by telephone). Any other function for clinical records is secondary. Examples include protecting the practitioner against future claims or complaints, demonstrating CQC compliance, helping the police, or supporting or denying a patient’s claim.
The MPS [5] emphasises the importance of record keeping to provide continuity of care and it is not simply a matter of protection should there be a claim.

“If continuity of care for patients is to be assured, it is vital to keep good medical records, whether they are handwritten or electronic. Health professionals and others are able to use adequate medical records to reconstruct the essential parts of each patient contact, without the need to refer to memory. When medical notes are sufficiently comprehensive, it is easier for health professionals to carry on where a colleague left off.”

“Medicolegal consultants would advise that clinical records include not only relevant clinical findings, but also the decisions made and agreed actions, in addition to who is making and agreeing these decisions. Good clinical records also include the information that patients have been given, any prescribed drugs or other treatment or investigation and who is making the record and when.”

The Guidance from the Royal College provides:

The antenatal counselling of women with a previous caesarean birth should be documented in the notes.

A final decision for mode of birth should be agreed upon by the woman and member(s) of the maternity team before the expected/planned date of delivery

When a date for ERCS is being arranged, a plan for the event of labour starting before the scheduled date should be documented in the notes.

The routine use of VBAC checklists during antenatal counselling should be considered, as they would ensure informed consent and shared decision making in women undergoing VBAC.

A patient information leaflet should be provided with the consultation.

The antenatal counselling of women with a previous caesarean birth should be documented in the notes.
A final decision for mode of birth should be agreed upon by the woman and member(s) of the maternity team before the expected/planned date of delivery.
When a date for ERCS is being arranged, a plan for the event of labour starting before the scheduled date should be documented in the notes.
The routine use of VBAC checklists during antenatal counselling should be considered, as they would ensure informed consent and shared decision making in women undergoing VBAC.
A patient information leaflet should be provided with the consultation.

The Guidance states that ideally, discussion should be individualised to the woman’s medical circumstances and consider her individual chance of VBAC success and future reproductive preferences. The antenatal counselling process should be documented in the medical records.
A Pro-forma, was read to the mother detailing the risks and benefits of VBAC. Pro-forma’s are useful tool in identifying important risks and benefits to be discussed but it must be remembered that a pro-forma cannot make the risks and benefits specific to the situation of a particular patient and they should be used as an aid to discussion, not as a means to avoid discussion with the patient.
As with the old consent form it must be remembered that a signature does not prove that information has been accurately given to enable the patient to make an informed decision. Equally the absence of a signature does not necessarily prove lack of consent, although when considered with other evidence it may suffice [6]. The form is simply factual evidence if signed of what was read to the patient.
Evidence based Guidance produced by Colleges will be of use to the court not only in assessing issues of fault but also in assessing factually the risks and benefits of options for treatment in a consent case. It is important when experts are assisting the court with such matters that they make reference to such guidance when it is available. The RCOG Green-top Guideline No. 45 sets out well the various options and the risks of each.

Ultimately the Supreme Court did not require to consider the argument on reversal of onus of proof since causation was established on traditional grounds.

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[1] Birth after Previous Caesarean Birth, October 2015 (Green-top Guideline No.45) This was the second edition of the Guidance. The first edition of the Guidance was published in 2007 www.rcog.org.uk/en/guidelines-research-services/guidelines/?q=vbac&subject=.
[2] GMC Guidance, Good Medical Practice current guidance in force 22 April 2013 www.gmc-uk.org/guidance.
[3] Medical Ethics Today, The BMA’s handbook of ethics and law.
[4] www.themdu.com/guidance-and-advice/guides/consultant-pack/good-record-keeping.
[5] www.medicalprotection.org/uk/articles/the-legal-importance-of-good-medical-records.
[6] Williamson v East London & City Health Authority [1998] Lloyd’s Rep. Med. 6.
[7] Montgomery v Lanarkshire Health Board [2015] UKSC 11