Khalid ( A Child) v Barnet & Chase Farm Hospital NHS Trust

In a trial of labour following an earlier caesarean section, the true choice is between continuing labour and terminating it by caesarean section. A foetal blood sample is not itself an alternative to that choice. A normal result may show that the baby is not then acidotic, but cannot exclude scar dehiscence or rupture developing shortly afterwards.

The mother must receive sufficient, simple information about the material risks and the significance of the available courses so that the decision is informed. Under Bolam, what a doctor should have done is assessed by reference to responsible medical opinion, while what the doctor would have done is a question of fact. On the facts, failures by the midwife and obstetrician caused a delay exceeding 20 minutes and consequent brain damage.

The claimant, a child born with severe brain damage after hypoxic-ischaemic injury during a trial of labour, brought a negligence claim against the defendant hospital. The midwife conceded that she should have called the obstetric registrar when the cardiotocograph became pathological at about 06:15.

The issues were whether the registrar would have recommended earlier caesarean section, whether the parents would have consented if given adequate information, whether the subsequent use of a foetal blood sample was within responsible medical practice, and whether the registrar properly interpreted the contraction trace at about 07:20. The central question was whether either breach caused delivery to occur more than 20 minutes later than it otherwise would have done.

1. Applicable standards. The court applied the distinction between what the registrar would have done, which was a question of fact, and what he should have done, which required application of the responsible-body test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 58, as explained in Bolitho v City and Hackney Health Authority [1998] AC 232. The approach to competing bodies of respectable clinical opinion was informed by Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634.
2. Foetal blood sampling and information. The true options were continuing the trial of labour or proceeding to caesarean section. A foetal blood sample was merely incidental to continuation of labour. A normal result could reassure that the baby was not then acidotic, but could not indicate that scar dehiscence was absent or could not develop within minutes. Both the approach favouring caesarean section and the approach favouring a foetal blood sample were supported by respectable medical opinion, but the proper choice depended on the degree of suspicion of rupture and the mother’s knowledge of the risk.
3. The reasoning concerning informed choice in Chester v Afshar [2005] 1 A.C. 134 was materially different on causation but informed the court’s approach to the duty to provide information. The parents needed a simple explanation of the risk of scar rupture, the possible consequences, and the limited significance of a normal blood-sample result. Their decision to continue labour was otherwise uninformed.
4. Application to the midwife. The midwife was in breach by failing to call the registrar at about 06:15. Had he attended at about 06:20, he would probably have suggested caesarean section. The parents would probably initially have chosen to continue labour if told that it remained safe to do so. A later review, with the continuing pathological trace and reduced contraction rate, would probably have led to stronger advice and consent to caesarean section more than 20 minutes earlier than the actual operation.
5. Application to the registrar. The registrar was himself in breach by failing at about 07:20 to recognise the significant reduction in contraction frequency. That additional sign, alongside the prolonged pathological trace, substantially increased the suspicion of rupture. It made caesarean section the safe course and rendered a foetal blood sample a waste of time. Clear advice would have led the parents to consent without the reassurance that the sample in fact produced.
6. Each breach caused the operation to take place more than 20 minutes later than it should have done. The claimant therefore succeeded. Judgment was entered for the claimant, with damages to be assessed, and a case management conference was directed before the Master.