The case of HTR centered upon matters of fact. The Claimant, who proceeds by his mother and litigation friend, LJR, seeks damages arising from an antenatal clinic appointment, during which it is alleged the Defendant acted negligently by not investigating reports of reduced fetal movement.
Proceedings were issued on behalf of the Claimant by his mother and litigation friend (LJR) on the 4th of October 2019. The Claimant sought damages for alleged Clinical Negligence arising from an appointment at an antenatal clinic on the 6th October 2004. The Claimant was subsequently born by emergency Caesarean section four days later on the 10th of October 2004, suffering permanent damage from chronic partial hypoxia resulting in asymmetric quadriplegic cerebral palsy.
LJR had been referred to the antenatal clinic by the community midwife, who was concerned that the Claimant was in a breech position. LJR’s case was that:
Conversely, it was the Defendant’s case that:
The Defendant submitted that the court should place considerable reliance on the contemporaneous medical records compared to LJR’s recollection of events given the events took place a long time ago (para 7).
Both parties accept that if LJR had raised a concern about reduced fetal movement, then Dr. Salman had been negligent in failing to act upon it.
The issues for determination were wholly factual. It was common ground between the parties that a maternal report at an antenatal clinic of reduced fetal movement is a matter requiring immediate further investigation. Both parties also accepted that fetal movement was discussed by LJR and Dr. Salman at the clinic appointment on the 6th of October 2004. The core issue for determination was specifically what LJR said to Dr. Salman regarding fetal movement at the appointment.
A secondary issue was whether Dr. Salman carried out the ultrasound scan on the 6th of October 2004. It is the Defendant’s case that Dr. Salman did not carry out ultrasound scans at antenatal appointments, asserting that ultrasound scans were undertaken by either a sonographer or a senior doctor. This issue was not determinative of negligence in itself but was considered as potentially shedding light on the credibility of the parties’ respective cases on the primary factual dispute as to what was said concerning fetal movement.
Citing the approach of Leggat J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560 (Comm), Mr. Justice Cotter accepted the potential for “considerable interference with memory” exerted on litigants in preparing for trial (para 76). He reviewed other authorities applying the Gestmin principles to medical records, and cited his own judgment in the recent case of HXC V Hind & Craze , to the effect that contemporaneous medical records were considered “a starting point, but no more than a starting point” for establishing an accurate record of a consultation/examination (para 82).
Mr. Justice Cotter started his conclusions from four factual “foundation stones” about which he was satisfied to a high degree, including that LJR had felt a very strong fetal movement on 8th October; fetal movement had been discussed with Dr. Salman on 6th October, and that LJR’s husband had persuaded her to go to the hospital for a check up on 10th October after she had not felt any fetal movement after a bath (para 87).
Building on these foundation stones, Mr. Justice Cotter went on to make various findings on subsidiary points that were favourable to the Claimant, including the following:
Finally, Mr. Justice Cotter turned to the central issue of what LJR said to Dr. Salman regarding fetal movements on 6th October. Although he acknowledged the importance of medical records in clinical negligence cases, he observed that in this case they provided “some, but only some, assistance on the central issue of fact.” Although the brief entry by Dr. Salman on the 6th of October “records active fetal movement, this is not, of itself, contradictory to the expression of a concern about reduced fetal movement” (para 116). He noted that for separate reasons (in particular the issues in relation to who had performed the scan), Dr. Salman’s evidence was to be treated with caution. He found that her subsequent years of practice, many of them post-2011, after which emphasis on the importance of reduced fetal movement had changed, had “coloured her recollection” (para 116). Bearing in mind the ways in which he had found LJR’s evidence to be reliable, he rejected Dr. Salman’s evidence on this crucial point.
As such, Mr. Justice Cotter was satisfied that LJR did raise a concern about reduced fetal movement at the clinic on 6th October 2004 and she had therefore established a breach of duty.
William Young, a barrister from our Clinical Negligence team commented on the case as follows:
This is not a case that raises or discusses any particular principles of law, but the approach to a contested question of fact on a crucial issue is interesting and illustrative for practitioners in this field.
I would draw out three particular points of interest:
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