Delayed caesarean section causing uterine tear
In an appeal on 16 January 2020, the court upheld a claim by a woman who had suffered a serious injury in childbirth.
Morrison v Liverpool Women’s NHS Foundation Trust
The mother was expecting her fourth child. This was a ‘high risk’ pregnancy: 2 previous births had been by caesarean section and she had previously suffered a tear to her womb.
Her waters broke on 2 December 2014 and she was admitted to hospital. It was decided to carry out a caesarean section on 11 December 2014 unless she went into labour earlier. If she did, the section was to be done then as an emergency. She was told to come into hospital at 7am on 11 December 2014.
In fact she started to have contractions before then and came into hospital at 2am on 11 December 2014.
She was assessed by clinicians on four occasions: at 2.40am; 4.10am; 5.35am; and 7.05am. At 7.05am it was decided to carry out the caesarean. Her baby boy was delivered at 8.36am. The baby was not injured but she was – she was found to have damaged the rear part of her uterus. It could not be repaired and she underwent hysterectomy.
Earlier caesarean section – 3 missed opportunities?
She brought a claim for damages. She alleged that the decision to carry out a caesarean should have been taken earlier – there had, after all, been three opportunities.
The evidence was however that it was not necessary to proceed to caesarean at 2.05am. At 5.35am staff were dealing with another emergency and it was simply not possible then to take her to theatre. That emergency took precedence and there was no criticism of her management at that time.
She nevertheless alleged that the decision should have been made at 4.10am.
Proving a negligent failure at that stage was not enough. She then needed to prove that she would have avoided injury. Her case was that when the uterus tears, contractions normally stop. Her contractions were still happened at 7.45am, just before her baby was delivered. There was therefore good reason to think that the tear probably had not happened by then. If so, earlier delivery would have avoided the tear and avoided the need for a hysterectomy.
The decision at trial
Her case was heard by a Recorder, one of the less senior judges. At trial she won her case. The Recorder found that she should have been taken to theatre soon after 4.10. She also established that the tear to her uterus probably happened after 7am.
The hospital trust appealed. There were a number of grounds. One was that the Recorder’s judgment was poorly reasoned. Another was that it did not explain the legal test he had to apply to decide whether there had been a breach of duty. It seems there was some truth in this but not so much that the appeal was upheld. There were some other issues on which the trust criticised whether the evidence supported the Recorder’s findings. On none of these did the court find that the Recorder had made got his decision wrong.
She therefore won her case both at trial and on appeal.
The case raises some interesting questions.
How the courts assess expert evidence: the role of guidelines
The first concerns the use of guidelines. Experts can give evidence of opinion – for instance what they think should or should not have happened. To be persuasive, they need to explain the reasons for their views. What judges want to see is a transparent process of reasoning. The best way to do this is to show that there is medical literature to support their view. Written guidelines can be very helpful.
The mother called an expert in obstetrics, Mr Waterstone, to give evidence as to how she should have been managed. On appeal, the trust criticised Mr Waterstone for having been unable to point to any literature or written guidance to support his conclusions. On appeal the judge said that the mother’s case would have been stronger if Mr Waterstone had been able to draw on guidelines. However clinical practice is often complex. There are an almost limitless number of possibilities as to what can happen. Not everything will be covered by a guidelines. In their absence a combination of logical assessment based on many years of clinical experience was enough.
When there are 2 emergencies
The second issue concerned the evidence that there were competing demands from other urgent situations which made it reasonable not to decide on caesarean section at 4.10am. The mother had been unable to criticise her management at 5.35am because the hospital did not have the resources then to carry out a caesarean section. There was another emergency which took priority over hers. The trust’s expert, Mr Irons, thought the same was the case at 4.10am.
The court accepted in principle that one patient’s needs may have to take priority over another’s. ‘Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions…the needs of the patient must be deprioritised to allow the clinicians to attend to other demands…’. Mr Irons said staff had to perform a balancing act here. However there was no evidence from the treating clinicians that this had actually been the case at 4.10am.