Sherwood v Sherwood Forest Hospitals NHS Foundation Trust (No 2)

In a clinical negligence claim, causation is assessed by asking what would probably have happened if the established breach had not occurred. The claimant must prove that the alternative management would probably have avoided the injury. A reasonable range of clinical choices does not itself defeat causation where the court finds that the appropriate managed course would probably have produced an earlier intervention. In a high-risk pregnancy beyond the maximum safe gestational period, delivery must proceed as soon as practically possible after the planned process begins. Earlier prolonged fetal deceleration, considered with the clinical risks and continuous monitoring, would probably have triggered attempts to deliver and a caesarean section before damage occurred.

The claimant, Ellie Jade Sherwood, brought a clinical negligence claim against the defendant NHS foundation trust. In an earlier judgment, the court found that the defendant had breached its duty on 1 November 2002 by failing to arrange admission on 3 November for a planned, controlled delivery beginning on 4 November. Further evidence and argument were heard on whether that breach caused the claimant’s brain injury.

The central issues were the probable management following earlier admission, the likely fetal heart monitoring, the cause and timing of the damaging bradycardias, and whether earlier intervention would probably have avoided the injury.

1. Causation and probable management. The court accepted the evidence of Dr Rutherford and Mr Pickles that, following admission on 3 November, it would have been reasonable to monitor the claimant’s mother, assess whether labour was establishing spontaneously, and commence induction at about 12.30 on 4 November. That course was open to reasonable practitioners. Delivery by the end of ordinary working hours was not mandatory.
2. Need for prompt delivery. The fetus was already beyond 41 weeks’ gestation. The medical notes would therefore have recorded the need for delivery as soon as practically possible after the controlled process began. A preordained 5 pm cut-off was not required, and induction could reasonably have continued beyond that time if monitoring remained reassuring.
3. Fetal decelerations. The damaging bradycardias were caused by physical entrapment and compression of the cord between the fetus and maternal structures. Their length, particularly the deceleration continuing from 17.38 until 18.17, was inconsistent with an explanation based solely on contractions following vaginal examination. Random changes in maternal, fetal and cord position, together with the thin cord and reduced liquor, made earlier cord compression probable.
4. Counterfactual outcome. The court found that a deceleration of the order of the 17.11 event would probably have occurred after 16.00 had the mother been admitted and continuously monitored. Staff would have known the pregnancy’s high-risk features and the need for prompt delivery. The deceleration would have been abnormal under the applicable NICE criteria, particularly in the context of an earlier non-reassuring feature. An attempt at artificial rupture of the membranes would have led, whether successful or not, to caesarean delivery before the claimant suffered damaging hypoxia.
5. The claimant proved causation on the balance of probabilities. The defendant was liable for the claimant’s brain injury.

The judgment records that the court had previously determined breach of duty in the same proceedings and required further evidence and argument on causation. No separate appellate history is stated.