HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB)

Date

30th November 2021

Court

High Court

Key Issues

cerebral palsy, Witness Testimony, Contemporaneous Records, Matters of Fact

Judge

Mr Justice Cotter

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.

The Facts

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:

1. she was belatedly seen by Dr. Salman, SHO, at the clinic two hours after her appointment time at the clinic on the 6th of November;
2. that during this appointment LJR made a clear report to Dr. Salman that in the period preceding the appointment that she had experienced fetal movement, sufficient to be a cause of concern to her;
3. an ultrasound scan was undertaken by Dr. Salman, who appeared to satisfy herself that the Claimant was not in breech position, that everything was in order, that the Claimant’s head was down, and he was ready to be born, and that this would explain the lack of movements; and
4. by ignoring LJR’s report of reduced fetal movement as a potential matter of concern requiring further investigation, Dr. Salman acted negligently.

Conversely, it was the Defendant’s case that:

1. LJR did not raise a concern as to reduced fetal movement with the Defendant on Wednesday 6th October;
2. the note made by Dr. Salman, who did not undertake the ultrasound, but saw LJR after it had taken place, recorded active fetal movement;
3. any concern which LJR raised regarding reduced fetal movement would have been recorded and investigated; and
4. after the Claimant was admitted on Sunday 10th October 2004, no medical record set out any reference to LJR having experienced or been concerned about reduced fetal movements as to 6th October, but only on subsequent days.

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.

Issues at trial

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.

Held:

Citing the approach of Leggat J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] 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 [2020], 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 8^th October; fetal movement had been discussed with Dr. Salman on 6^th October, and that LJR’s husband had persuaded her to go to the hospital for a check up on 10^th 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:

• He preferred LJR’s testimony in relation to a conversation with Dr. Salman on 12^th October 2004, accepting that Dr. Salman had on that date (after the Claimant’s birth, and his injury was known) said to LJR that she had told her on 6^th October that she needed to be “monitoring” (para 95).
• He accepted that Dr. Salman had administered a scan to LJR on the 6^th, his conclusion was influenced by the fact that Dr. Salman had said categorically in her witness statement that “I was never trained to perform ultrasound scans, I never scanned, I still don’t scan”, yet she confirmed in cross examination that she had received informal “hands-on” training in 2004 (she said in December) and had done scans infrequently for two or three years thereafter. The conclusion as to who did the scan was “significant” for the credibility of LJR’s evidence since if he had found against her on this point “it would have been likely to adversely impact upon the reliance that can be placed upon the recollection of LJR” (para 105).
• The entries in the medical records from 10^th October onwards were not inconsistent with LJR’s case about a lack of fetal movement on 6^th October and were explained by the fact that she had been reassured by what she was told by Dr. Salman on that date.

Finally, Mr. Justice Cotter turned to the central issue of what LJR said to Dr. Salman regarding fetal movements on 6^th 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.

Our Comment:

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:

• Where there are contested questions of fact, the Court will look to start from a set of uncontested or reasonably certain “building blocks” from which the remainder of the conclusions can be built. Lawyers seeking to persuade the Court of their client’s case would be well advised to undertake a similar process, starting from the most certain and seeking to persuade the Court of the more contentious points.
• Contemporaneous medical records are not necessarily the be-all-and-end-all in terms of evidential certainty. There will of course be a range of quality of medical records, and much will depend on the facts of the In this case the bare medical records were not (on closer examination) unambiguously inconsistent with the Claimant’s case. Where they are, it will obviously be much harder for a Claimant to get around them. Where there is ambiguity, however, the notes of caution expressed in this case and the authorities which Mr. Justice Cotter quoted (in particular Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283) may well be of assistance to a Claimant.
• When seeking to challenge the reliability of contemporaneous medical records, it will almost always require an assessment of the surrounding context. In this case, it seems apparent that some skilful cross examination (and submissions) had assisted Mr Justice Cotter in reaching the conclusions that he did in the Claimant’s favour. In particular, the fact that Dr Salman had been at a point in her career when progression was dependent on decisions by more senior doctors, and hence it was inherently plausible that she would have said to LJR after the birth, by which time she knew something had gone wrong, that she had told her at the appointment on 6th October that she needed to monitor the situation. This went on to become a building block in the finding in the Claimant’s favour on the key contested factual question about what was said about fetal movement on 6th October. Deft excavation of the inherent probabilities of each party’s case will often be crucial in cases where the medical records are being challenged (in this case the Claimant was also assisted by the inconsistency between Dr Salman’s statement and her oral evidence).