CLINICAL NEGLIGENCE UPDATE MAY 2022 | Claimant benevolence fails to assist Claimant in establishing causation. 18 St John Street’s Ian Huffer continues his series of Clinical Negligence Case Updates with an analysis of the recent case of Richins -v- Birmingham Women’s and Children’s NHS Foundation Trust.
In Richins v Birmingham Women’s and Children’s NHS Foundation Trust  EWHC 847 (QB), a decision of Her Honour Judge Kelly (12 th April 2022), the Claimant sought damages (psychiatric injury and consequential loss) arising out the stillbirth of her son (Kyron) following abruption at approximately 6.45 a.m. on 7 th July 2008. Three days earlier the Claimant had been admitted to hospital (at 29 weeks + 4 gestation) because of pregnancy induced hypertension and intrauterine growth restriction. The plan was for steroids to be administered for foetal lung maturation, anti-hypertensives to be given and there be regular observations including daily CTG monitoring.
The Claimant’s case was that midwifery care and treatment from 1800 hrs onwards on 6th July 2008 fell below the required standard and that, but for the breach of duty, she would have been referred earlier for obstetric review leading to probable transfer to the delivery suite with a diagnosis of pre-eclampsia and Kyron’s death would have avoided.
Breach: On breach, the judge had to resolve disputed factual evidence in relation to the Claimant’s presentation and treatment on the ward 14 years after the events based on the recollection of witnesses that included the Claimant and two other witnesses and two midwives called by the Defendants.
As passage of time had affected the recollection of witnesses, there was inevitably a consideration of the Gestmin principle, that the court must avoid the error of assuming that stronger and more vivid feelings and/or confidence of recollection make it more likely a recollection is accurate and the broader suggestion that factual findings be based “on inferences drawn from the documentary evidence and known or probable facts.”. The judge also bore “in mind that the reliability of the witnesses’ evidence may also be affected by the conscious or sub-conscious reconstruction of events”.
The judge set out the case law on Gestmin and , guided by observations of Cotter J in HTR v Nottingham University Hospitals NHS Trust  EWHC 3228 (QB). Whilst she took the medical records as a starting point, with such entries likely to be a correct and accurate record, she accepted that she “must bear in mind any other evidence that establishes that the medical records are inaccurate” and, given that two inaccuracies in the records had been
identified, indicated that she treated their reliability with caution.
Readers need to go to the full judgment to appreciate the detailed and careful analysis given by HH Judge Kelly on breach of duty (paragraphs 109 -117 of the judgment) following which she found the Defendants in breach of duty:
(i) the Claimant was presenting as generally unwell at about 18.00 hrs on 6th July with epigastric pain and breach of duty was established by the midwife failing to refer for obstetric review. There were also further breaches of duty arising from the failure to test the Claimant’s urine and to record the dose of paracetamol given.
(ii) The Claimant was presenting as more unwell by around 2100 hrs on 6 th July and there was a further breach of duty by the midwife in not conducting an assessment before she went off shift and in failing to record that she had given the Claimant a dose of Gaviscon.
(iii) At 2100 hours the Claimant was presenting with deviations from the norm (namely not feeling right, having pain under her ribs on the right side, being breathless and unable to get comfortable and having heartburn) such deviations being something which the expert obstetric evidence indicated should have rung alarm bells when set against a background of known high risk factors with the Claimant, failed attempts at controlling the position with paracetamol and Gaviscon and a worsening clinical position over the course of the evening. There was therefore a breach of duty not then referring the Claimant was obstetric review.
(iv) The judge further found that the midwife’s failure to take a urine sample at 2300 hrs amounted to a breach of duty, preferring the Claimant’s obstetric evidence to the Defendants. Whilst the Claimant did not have all the typical symptoms or signs of pre-eclampsia, she was referring to pain under her ribs, epigastric pain had been recorded at 1800hrs, she was known to have PIHT and had deteriorated generally over the evening.
(v) The judge also found that breach of duty was established over the night of 6th / 7th July in failing to conduct midwife reviews.
The Claimant needed to prove, on the balance of probabilities, that she would have been transferred from the ante-natal ward to the delivery suite and that, in order to prove that Kyron would have been born alive, that a decision would have been made to deliver him before the abruption at 0645hrs on 7 th July 2008. The judge held that she failed to establish causation on the balance of probabilities and dismissed the claim.
Commentary: The judges’ reasoning and approach to causation and the ‘benevolence’
principle which is aspect of the case which will be of most interest to practitioners.
‘Claimant benevolence’ and Keefe’
The judge set out the case law on which the principle was founded and subsequently applied to cases of clinical negligence in her judgment.
In Keefe v Isle of Man Steam Packet Co  EWCA Civ 683 the defendant failed to measure noise levels but asserted that the noise levels would not have been at an excessive level. At paragraph 19 Longmore LJ held:
“If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically… Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.”
The applicability of the benevolent approach adopted in Keefe to causation and clinical negligence claims was considered in JAH v Dr Matthew Burne & others  EWHC 3461 (QB) by Martin Spencer J at paragraph 64:
“In my judgment, in resolving issues of detail such as how long it would have taken for investigations to be carried out and when a competent vascular surgeon would have appreciated that anticoagulation was the appropriate treatment, the court should err in favour of the claimant where it is the defendant’s negligence which deprives the court of the best evidence and causes the need to delve into this hypothetical world.”
In Younas v Dr. Okeahialam  EWHC 2502 (QB) Deputy High Court Judge Collins-Rice, as she then was, was asked to apply benevolence when reconstructing the diagnostic process. At paragraph 35:
“It is clear, and Mr Bradley very fairly accepted, that this does not amount to a reversal of the burden of proof. It is also clear that Keefe was a case in which the breach of duty specifically related to a failure to make measurements (of noise levels). The claimant was directly, and wrongly, deprived of the very records which would have been the best, or only, evidence of the precise levels to which he had been exposed. The Court of Appeal in these circumstances took a ‘benevolent’ approach to such positive, if second-best, evidence as there was that it had been excessive, and found the claimant’s burden of proof discharged on that evidence.“
In Mackenzie v Aloca Manufacturing (GB) Ltd  PIQR 6 the Court of Appeal reversed the decision of the High Court and reinstated the decision of the Circuit Judge who had declined to draw an inference adverse to the defendant in a hearing loss case. After a review of the authorities, Dingemans LJ at paragraph 52 concluded:
“It seems therefore that it is possible to state the following propositions. First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at –. Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document, see Herrington at 970G; Keefe at  and Petrodel at .”
He continued at paragraph 55:
“A principal reason why HHJ Vosper QC did not draw the inference against Alcoa was because he accepted Mr Worthington’s evidence that it could not be shown that Mr Mackenzie had been “regularly exposed to noise levels in excess of 90dB(A)”. HHJ Vosper QC found in  of his judgment that Mr Worthington had regard to the nature
of the work done, the circumstances in which it was done, his own engineering experience, and the results from a comparable factory carrying out comparable processes. This was much more than a dismissal of the case because on the balance of probabilities it was not possible to say what was the exposure to noise. In my judgment HHJ
Vosper QC was entitled to accept this engineering evidence and avoid resort to inferences, even if they might otherwise have been drawn.
The approach taken by Garnham J to the adverse inference risked elevating the decision in Keefe to a rule of law, rather than an example of the proper approach to finding facts in a particular case where the evidence showed that the defendant had failed in its duty to carry out noise surveys, and the claimant had been deprived of the opportunity to prove his case.”
The Claimant’s central argument was that, having demonstrated (as the judge found) that there was a breach of duty by the Defendants in failing to take a urine sample at 6 pm and 11 pm on 6th July, the finding was relevant to the hypothetical for causation purposes. The Claimant invited the court to adopt a benevolent approach to determination of the timing of any positive proteinuria results, the timing of any transfer to the delivery suite and the timing and outcome of any deterioration on the delivery suite. The rationale for this submission was that the Defendant’s breach of duty that has deprived the Claimant of evidence she would otherwise have had to prove her factual case and causation.
The judge recognised that Claimant Benevolence did not reverse the standard of proof and that, by definition, most clinical negligence claims involved some construction of the hypothetical as far as causation is concerned. However, her approach was to focus upon and largely determine causation on the basis of the expert obstetric evidence with limited application of the benevolence principle, ultimately preferring the evidence of the Defendant’s expert obstetrician to the Claimant’s as to when there would have been protein in the Claimant’s urine (proteinuria), information which would have informed the decision as to whether to transfer the Claimant to the delivery suite.
“In my judgment the concept of Claimant Benevolence following Keefe and the subsequent authorities does have a role to play when determining whether proteinuria would have been present. The Claimant has been deprived of first-hand evidence as to the protein levels as a direct result of the Defendant’s breach of duty in failing to take samples at 1800 hrs and 2300 hrs. Such benevolence does not however reverse the burden of proof and I take into account the obstetric expert evidence”
The judge preferred the opinion of the Defendant’s obstetric expert that although there was an increasingly likelihood of proteinuria as time progressed, she was not satisfied based on the Claimant’s presentation at 18.00 hrs or 23.00 hrs that it was probable that proteinuria would have been present.
By the early hours of the morning, the judge found the position was different. There was a complete lack of any data. In breach of duty, there had been no obstetric referral and no midwife reviews during the night. This had resulted in an absence of any blood pressure readings after 2300 hrs until after the abruption. There had also been a lack of urine testing and foetal heart monitoring. She held that by the early hours of the morning, it was no longer possible to say that the data demonstrates that the Claimant’s blood pressure was normal. This was coupled with the agreed expert evidence that the likelihood of proteinuria increasing with time and a concession by the Defendant’s expert of the increased likelihood of proteinuria by 0300 hrs. “In my judgment, Claimant Benevolence does have a role to play when
determining whether it is probable that proteinuria would have been present at in the early hours of the morning. The Claimant is deprived of data as to both blood pressure and proteinuria. …..Taking the expert evidence together with benevolence in favour of the Claimant, I am persuaded that the Claimant has established that it is probable that proteinuria would have been present by the early hours of the morning (approximately 0300 hrs.)”
Movement to the delivery suite
If there had been a urine sample taken at 18.00 hrs it would not have been positive and remaining on the antenatal ward was a reasonable and accordingly transfer to the delivery suite was no more than a possibility at that time.
The judge found that at 2300 hrs the Claimant’s blood pressure, urine sample and CTG trace would all have been normal, and she had no headaches or visual disturbances. She was however presenting as increasingly unwell against a backdrop of known high risk factors. She was not satisfied the Claimant could establish that it is probable she would have been moved to the delivery suite at 2300 hrs. “It is not appropriate to rely on Claimant Benevolence when
the Court has before it reasoned expert evidence addressing this aspect of causation. Given the lack of typical symptoms of pre-eclampsia at 2300 hrs, she preferred the conclusion of the Defendants’ expert that it is probable she would have remained on the ante-natal ward, albeit being kept under review and not left unattended.“
Given that the Claimant would have been presenting with proteinuria and the deterioration in her clinical picture the judge found that it was “probable that the Claimant would have been transferred to the delivery suite shortly after 0300 hrs. I come to this decision based on the expert evidence and without the need to rely on any notion of Claimant Benevolence”.
The Judge preferred the Defendants’ expert view and held that whilst a planned delivery would have been considered, it was probable it would not have been scheduled for the middle of the night without senior staff on hand in circumstances where the baby was known to be so premature and small for his gestational age.
As to an emergency delivery, “the Claimant asks the court to apply Claimant Benevolence to the reconstruction of the hypothetical. However, I am not persuaded such a concept can provide a bridge to causation in the face of the Claimant’s own expert evidence and that of [the Defendants’ expert]. Even if one accepted that the evidence should be interpreted in a way benevolent to the Claimant so as to reach the conclusion that the Claimant would have been presenting as being increasingly unwell, hypertensives would have been administered but not have worked, proteinuria would have been present along with CTG abnormalities, the difficulty the Claimant faces is that her own oral expert evidence is that this leads to a conclusion that there may have been a decision to deliver. The hard, medical evidence does not demonstrate that it was probable as opposed to possible that Kyron would have been safely delivered before the fatal abruption at 0645 hrs. It is one thing to apply a benevolent approach to the existence of signs and symptoms but another to use it to construct the planks of causation when not supported by the expert evidence”.
Commentary: The case illustrates the limitation of Keefe benevolence principle in cases of clinical negligence where there is expert evidence to explain causation as was also the position in a case decided last year by Mr Justice Cotter (ZZZ v Yeovil District Hospital NHS Foundation Trust  EWHC 1642)).