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Hospital negligence not the cause of baby's brain damage - court

2 Sep 2019

In the AN case, the Supreme Court of Appeal held that despite the failure by the All Saints Hospital to properly monitor the mother and foetus during delivery, this did not cause the brain damage to the baby which resulted from an unpreventable cause.

Hospital negligence not the cause of baby's brain damage - court

The hospital had a legal duty to monitor the condition of the mother and foetus and act appropriately on the results of monitoring. In this matter, the hospital failed to do so and therefore their conduct was wrongful and negligent.

On 2 October 2013, the mother was admitted for the birth of her baby. The baby sustained a brain injury during labour. The cause of the brain damage was an acute profound hypoxic ischaemic (APHI) injury. Each of the terms is described below:

Acute – sudden and not developing over time;
Profound – complete or total;
Ischaemic – restriction of the blood supply; and
Hypoxic – reduction of the oxygen supply.

In other words the cause of the brain damage was a sudden, total, persistent reduction of blood supply to the brain which lead to a lack of oxygen supply. The medical term for this injury is a hypoxic-ischaemic encephalopathy which is a neurological dysfunction that, in this case, developed into cerebral palsy.

APHI injuries are usually caused by perinatal sentinel events. In this matter, the type of sentinel event which occurred was an umbilical cord compression. In the circumstances, the only way to reduce the likelihood of damage to the baby was to expedite the delivery by way of a vacuum extraction which would have taken at least 20 minutes.

The SCA had to consider two main issues:

whether there would have been any warning signs of an APHI injury; and
if there weren’t any warning signs, whether it would have been possible to prevent the damage to the brain when the cord compression occurred by expediting the delivery.

Warning signs

If there were warning signs then the medical staff may have pre-empted the sudden fall of the foetal heart rate. In considering this point, the court relied on medical literature, referred to by the expert witnesses, which opined that if there was monitoring of the foetal heart, it did not necessarily mean that there would have been prior warnings of a sentinel event. The court cited Williams Obstetrics, a well-known textbook on obstetrics, which warned that:

There are several fallacious assumptions behind expectations of improved perinatal outcome with electronic monitoring. One assumption is that fetal distress is a slowly developing phenomenon and that electronic monitoring permits early detection of the compromised fetus.

On this issue, the court found that the appellant did not prove that there were any warnings of an impending sentinel event.

Expedited delivery

As a point of departure, the appellant’s Counsel admitted that the time when the cord compression occurred could not be proved. Therefore it could not be determined at what time the hospital staff should have monitored the baby to be alerted to the cord compression. One expert testified, without challenge, that the cord compression would have occurred 30 minutes prior to delivery. This was insufficient time to deliver the baby so as to avoid the brain damage.

The court held that in order to establish factual causation, it must be proved that if the cord compression had been detected within a reasonable time, intervention within a reasonable time would probably have prevented the brain damage. The appellant did not establish factual causation.

In other words, the negligence of the hospital staff in monitoring the mother and foetus did not result in the baby suffering brain damage.

This judgment highlights that wrongfulness (the breach of a legal duty) and fault (negligence) should not be conflated with factual causation.