TW (A Child) v Royal Bolton Hospital NHS Foundation Trust

Telephone midwifery advice must be assessed against the circumstances known, or communicated, at the time. Where a woman reports ruptured membranes, significant pain and a wish to attend hospital, competent care may require at least an invitation to attend for assessment, even where attendance need not be urgent. The Bolam standard applies, subject to the logical-analysis qualification in Bolitho. Expert opinion which depends on an unsupported factual assumption does not establish a responsible body of professional practice. Factual causation may be established by reconstructing what would probably have happened, using the evidence of the clinicians and unit involved.

The claimant, born in March 2008, suffered serious brain injury following a prolonged period of hypoxia during a vaginal breech delivery at the defendant hospital. The claim was tried on liability and causation only. The alleged breach was that, during an initial telephone call at about 4.00 am, the midwife failed to invite or advise the claimant’s mother to attend hospital after being told that her waters had broken, that she was contracting and in pain, and that she wished to come in. Instead, she was advised to remain at home, use a pad, walk about and call back.

The central questions were whether that advice fell below the applicable standard of midwifery care and whether earlier attendance would probably have led to a caesarean section before the claimant’s injury occurred.

1. Breach of duty. The applicable standard was the Bolam test, subject to the requirement in Bolitho that the professional opinion relied upon have a logical basis. The advice had to be assessed against the facts found to have been communicated, rather than against speculation about what the unidentified midwife might have believed.
2. The mother had reported spontaneous rupture of membranes, significant pain and contractions. She was 19, wished to attend hospital and was positively discouraged from doing so. In those circumstances, the competent advice was at least to invite her to attend for assessment, while leaving the urgency of attendance to her. Advice positively discouraging attendance fell below the standard of a reasonable and responsible midwife.
3. The defendant’s expert opinion depended on an unsupported assumption that the midwife was uncertain whether the membranes had ruptured. That assumption was inconsistent with the factual findings and the expert evidence did not satisfactorily address whether the mother should at least have been given the option of attending. The relevant professional opinion therefore did not withstand logical analysis.
4. Causation. The court accepted that the mother would have attended immediately if invited. The likely sequence was reconstructed from the evidence of the family, the midwives, the registrar and the contemporaneous records. The court was entitled to assess what this clinical team and unit would probably have done, rather than whether a reasonable body of practitioners would have been negligent by taking longer.
5. The likely decision for caesarean section would have been made by about 4.40 am. On the balance of probabilities, the necessary preparations would have been completed and the mother transferred to theatre before 5.15 am, while caesarean section remained viable. The spinal anaesthetic would then have been started and delivery achieved before 5.50 am. The claimant would probably have been spared his injuries.
6. The claimant succeeded on liability and causation. The parties were invited to make submissions on the form of order.