Court of Appeal upholds 2014 ruling

Tue, 20 Dec 2016

The Court of Appeal has upheld a ruling that a disabled teenager’s brain damage was not caused by a 30 minute delay to her birth.

And in dismissing a claim for damages for clinical negligence, the judge was found not to have made mistakes in his findings on complex issues delivered by expert witnesses.

Last week, the Appeal Court upheld a 2014 ruling that the 30-minute delay by staff at Wolverhampton’s New Cross Hospital in performing a Caesarean section had not caused or materially contributed to the child’s cerebral palsy, learning difficulties and epilepsy.

For the appellant in Baynham (a child protected party by her litigation friend, Sarah Jane Baynham) v Royal Wolverhampton Hospitals NHS Trust, were Satinder Hunjan QC and No5 Chambers barrister Dr Jonathan Punt.

Megan Baynham was 10 weeks premature and weighed less than 3lb when she was delivered at New Cross Hospital in August 2000. She was on life support for days and tests revealed she had suffered devastating brain damage. The now 16-year-old was left with cerebral palsy, learning difficulties and epilepsy.

At the time of her birth, her mother had experienced stomach pains and after examination by a midwife there was found to be a serious problem. A registrar diagnosed pre-term labour, noted that there was foetal bradycardia and decided that an emergency Caesarean section was needed. However, his diagnosis was incorrect; the cause of the pain was placental abruption which made the need for a Caesarean section even more urgent. The abruption became apparent during the operation.

Megan received intensive care, but over the following months it became clear that she had developmental problems.

The Royal Wolverhampton H ospitals NHS Trust admitted that Megan’s birth was delayed ‘due to a fault in its systems’.

But in a claim for damages for personal injuries caused by the hospital's negligent delay, the hospital argued that the admitted delay had not caused Megan’s injuries.

Both parties called expert witnesses. The judge, Mr Justice Goss, preferred the analysis advanced by the hospital's experts that the delay had not caused her brain damage and ruled her injuries were suffered while she was still her mother’s womb.

During last week’s appeal, Megan’s lawyers submitted that the judge had erred in: (1) his assessment of the respective expert witnesses; (2) commenting that a difficulty of the case was ‘exemplified by its evolving nature’; (3) failing to mention inconsistencies between the hospital's pleaded case and the expert reports it relied on; (4) his treatment of inconsistencies in the hospital's expert evidence; (5) his reliance on various factors supporting the hospital's analysis of causation case and in his weighing of the conflicting evidence.

The appeal was dismissed.

Dr Jonathan Punt is a member of the Clinical Negligence group at No5 Chambers.

HELD: (1) An appellant could argue that the judge had misunderstood expert evidence or made findings which were not open to the court on that evidence. However, when it came to appraising the quality of the witnesses, that was within the province of the trial judge. The judge heard the expert witnesses give evidence over many days before making his assessment. In the absence of some serious and obvious error, the instant court could not go behind that assessment. B's argument was based on a misconception of the instant court's functions. The witnesses were all experts of high standing who had given their honest opinions about the issues arising in a complex and difficult case. There was no reason to differ from the judge's assessment (see paras 40-43 of judgment).

(2) The judge's observation was factually accurate. The fact that the experts' thinking had evolved during the course of the litigation should not be held against them. It did not detract from the evidence. It would have been better if the judge had not made such an observation, but it did not play any significant part in his decision and did not provide any basis for interfering with his analysis of the expert evidence (paras 47-50).

(3) The inconsistencies did not give rise to an inference that the hospital's experts were being dishonest. As the judge had referred to the evolution of B's case, it would have been better if he had also referred to the evolution of the hospital's case. However, that omission did not undermine his analysis of the expert evidence. The judge's task was to assess the conflicting medical opinions, not to make findings of primary fact about who said what or who did what. He had not gained assistance from the extent to which the experts' views had, or had not, evolved since they were first instructed (paras 57-59).

(4) None of the suggested inconsistencies in the hospital's expert evidence provided any basis for interfering with the decision (paras 60-72).

(5) The judge had not erred in his reliance on various factors in support of the hospital's case or in his weighing of the evidence. Unsurprisingly in a case of such complexity, there were features pointing in both directions. There were legitimate differences of opinion between reputable and experienced experts. The judge had assessed all the material and reached a perfectly reasonable conclusion (paras 73-100).

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