P v Leeds Teaching Hospitals NHS Trust

Where antenatal imaging identifies an exomphalos without a visible bladder, the resulting possibility of cloacal exstrophy requires a focused and appropriately high standard of care. It is insufficient merely to identify a structure as a bladder by its apparent shape and position. Reasonable care may require persistent observation to establish filling and emptying, scanning in different planes, and use of Doppler to assess the relationship with the umbilical arteries. The standard applicable to a routine anomaly scan does not necessarily determine the standard applicable to a scan directed to resolving a significant diagnostic issue. A claimant who proves that the required focused examination would probably have revealed the true condition may recover damages for the consequences of negligent antenatal care.

The claimant brought a clinical negligence claim concerning antenatal ultrasound examinations during her fourth pregnancy. An earlier scan at Whitby had correctly identified an exomphalos but had not identified a bladder, raising the possibility of cloacal exstrophy. At Leeds, two scans incorrectly recorded visualisation of a bladder. The defendant admitted that the diagnosis was wrong and that termination would have been an option if cloacal exstrophy had been diagnosed, but denied any failure to exercise reasonable care and skill. The issues were whether the Leeds examinations were negligent and whether a correct diagnosis would have led the claimant to terminate the pregnancy.

1. Outcome. Judgment was entered for the claimant, with damages to be assessed if not agreed.
2. The claimant had proved, on the balance of probability, that she would have opted for termination if the correct diagnosis had been communicated. The advice would necessarily have addressed the child’s likely physically and psychologically harrowing life and the potential strain on family life.
3. The referral from Whitby presented a fetus with an exomphalos and no visible bladder. It therefore raised a possible cloacal exstrophy and required a tertiary, focused examination. The duty at Leeds demanded a high standard of care and skill directed specifically to resolving whether cloacal exstrophy was present.
4. A routine anomaly scan might permit identification of a bladder by shape and position alone. That was insufficient in the present focused examination. With care and skill commensurate with the importance of the issue, the apparent bladder should have been tested for filling and emptying, assessed by scanning in different planes, and examined with Doppler to assist in identifying the relationship with the umbilical arteries.
5. The absence of contemporaneous reference to cloacal exstrophy, the absence of images showing the alleged bladder, and the erroneous visualisations on two scans supported the conclusion that the required standard had not been met. The defendant had not reconciled those matters with the exercise of reasonable care and skill.