Wells And Smith V University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB)

The judgment of Mr Justice Dingemans in the case of Wells and Smith v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB) comments on the inappropriate use of hindsight by experts to hold treating clinicians to a higher standard than that required by the law. It also considered the need for secondary victims to have experienced a sudden, shocking event in order to recover damages for psychiatric injury.

Experts and the correct standard of care

The matter concerned a mother and father who had brought claims against the Trust for damages for bereavement and psychiatric injury following the death of their baby. On arrival at the hospital at 08.00, a slightly accelerated foetal heart rate was recorded (but within normal range) followed by a deceleration at 08.56, which was attributed to maternal vomiting. The heart rate recovered but did not increase to its previous rate. At 10.00, the membranes were ruptured and it was noted that the baby had passed meconium.

Importantly, according to NICE Guidance, this was not a necessary indication for caesarean section. The foetal heart rate improved again at 10.20 but by 10.40 an abnormal reading was noted and it was reviewed at 10.45. NICE Guidance recommended obtaining a foetal blood sample but the attempt was unsuccessful. At 11.15, it was decided to carry out a caesarean section but sadly at 11.53 the baby was delivered with no signs of respiratory effort and pronounced dead.

The Claimants alleged that the CTG trace at 08.48 showed a "wavy" unstable baseline foetal heart rate and were critical of the decision to undertake a foetal blood sample.

The Consultant Obstetrician and Gynaecology and expert witness for the Claimants, gave evidence that there was a failure to recognise evidence of ongoing hypoxia on the CTG trace and that delivery by caesarean ought to have been recommended by 10.20. The Claimant's expert was also critical of the failure to compare the foetal heart rate with the rate recorded at the last clinic attended by Mrs Wells. The expert witnesses for the Defendant explained however that it is not uncommon for the heart rate to fall in a maturing foetus and there was a risk of making a false comparison. The literature and guidance did not recommend making this comparison and Mr Justice Dingemans found that this was not a necessary step.

The Claimant's expert was very critical of the response following the 08.56 reading but did not maintain his initial suggestion in...