NKX v Barts Health NHS Trust

Medical professionals must take reasonable care to ensure that patients understand material risks and the consequences of available choices. Where circumstances may have changed, or the patient’s situation has materially altered, counselling and risk assessment may need to be repeated. In a high-risk labour, midwives must respond to signs that the second stage may have begun by confirming that position or proceeding on that assumption, with monitoring at the appropriate increased frequency. A complaint of continuous pain, particularly in a vaginal birth after caesarean case, may require urgent obstetric assistance. Causation remains determined on the balance of probabilities, including the likely effect of alternative monitoring and intervention.

This was a clinical negligence birth-injury claim concerning a child who suffered severe hypoxic-ischaemic brain injury following uterine rupture during his mother’s vaginal birth after caesarean labour.

The liability issues concerned antenatal counselling, counselling and reassessment on admission in labour, the adequacy and frequency of intermittent auscultation, recognition of the second stage of labour, and whether earlier obstetric intervention would have reduced the resulting injury. Quantum was reserved.

1. Liability established. Judgment was entered for the claimant because breaches of duty during labour would probably have resulted in earlier delivery and milder rather than severe brain damage.
2. The antenatal counselling on 28 April 2015 was reasonable. The claimant’s mother understood that continuous monitoring was preferable to intermittent auscultation and that intermittent auscultation involved increased risk.
3. That counselling had to be repeated when she arrived in labour. Labour was dynamic, the maternity unit was busy, continuous monitoring was unavailable in the pool, and there was no assessment of whether the available midwife had experience of managing a VBAC labour with intermittent auscultation. The failure to reassess the birth plan and risks was a breach of duty.
4. Midwives should either have confirmed that the claimant’s mother had entered the second stage of labour or proceeded on that assumption. In the circumstances, intermittent auscultation should thereafter have been performed every five minutes. Failure to do so was a breach.
5. The claimant’s mother was in continuous pain at about 1.00 am. This was a sign of possible uterine rupture. The failure to recognise it and call an obstetrician was a further breach.
6. On the balance of probabilities, renewed counselling would have led to acceptance of continuous monitoring. Alternatively, five-minute intermittent auscultation would have led to obstetric assistance sufficiently earlier. Delivery and resuscitation would probably have occurred by about 1.32 am, producing mild rather than severe brain damage.
7. For causation, the court preferred an extended Myers model of hypoxic-ischaemic injury because some oxygenation continued during persistent bradycardia. The claimant therefore remained injured, but the injury would have been materially less severe.