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Medical Negligence Trial: Mother sues NHS over the ‘wrongful birth’ of her daughter

Mother sues NHS over the ‘wrongful birth’ of her daughter Emily Matthews after hospital medics failed to detect she was missing a key part of her brain that has left her wheelchair-bound.

Reported in the throughout the national news today is the heartbreaking story of 4-year old Emily Matthews who will spend the rest of her life in a wheelchair with only partial sight due to Aicardi syndrome which is a rare condition involving the absence of the structure connecting the two spheres of the brain. Emily’s mother, Lindsey Shaw, is suing the NHS for medical negligence and her case is being heard in the Royal Courts of Justice. There is more from the court case in stories published by The Mirror, The Daily Mail and The Sun newspapers today.

Wayne Walker, an experienced clinical negligence solicitor within our Clinical Negligence department writes, in detail, about the trial at the Royal Courts of Justice, London.

  1. Introduction

Wayne WalkerI was instructed to investigate a claim for damages for wrongful birth, consequent upon an alleged error in relation to the performance of an ante-natal fetal anomaly ultrasound scan, performed at the James Cook Hospital, Middlesbrough, by Dr Caric, a Consultant in Feto-Maternal Medicine. The narrow issue was whether Dr Caric could properly have been satisfied that a feature within the fetal brain, the cavum septum pellucidum (CSP), was present, when in fact the same was absent.

The absence of the cavum septum pellucidum (CSP), or an inability to be able to identify that the same was present, would indicate the possible absence of the corpus callosum, and, before trial, it was been admitted that if there was doubt about whether the CSP was present the Claimant would have been referred to the tertiary centre at Royal Victoria Infirmary, Newcastle, and that on the balance of probabilities the Claimant would then have undergone an MRI scan. It is admitted that an MRI scan, had it been performed, would have confirmed the absence of the corpus callosum (complete agenesis of the corpus callosum – ACC) with additional features, and that the Claimant would have been offered termination of the pregnancy, which offer she would have accepted.

On the basis that Dr Caric confirmed, after the scan, that the brain was normal, our client continued with her pregnancy (which was neither easy nor straightforward) to term in reliance upon Dr Caric’s reassurance that there were no abnormalities or concerns, and her daughter was born,  who was with a profound neurological condition (Aicardi syndrome) rendering her maximally disabled, having frequent epileptic seizures (15-20 per day), and in need of constant and lifelong care.

Court proceedings were commenced, and the Court ordered, that there should be trial of a preliminary issue of liability and causation. Causation was subsequently admitted.

  • Factual background and matters in issue

A fetal anomaly scan was performed at 17 weeks and 3 days by Dr Lincoln, Consultant in Feto-maternal medicine. Dr Lincoln advised that a repeat scan should be performed at 20 weeks in order to check the heart and spine specifically because of the “limitation views at this gestation and with raised BMI [body mass index].”

The fetal anomaly scan was performed by Dr Caric at 21 weeks and 6 days. It was performed slightly later than 20 weeks. It is suggested that this was done deliberately to try and improve the quality of the images given my client’s high BMI.

In advance of the trial, It was agreed by the experts that the relevant standards for such a scan were contained in the NHS Fetal Anomaly Screening Programme (FASP) 18 – 20+6 Week Fetal Anomaly Scan National Standards and Guidance for England, which set out:-

  1. a “base menu” or table of features to be identified, which included certain landmarks on the plane used to measure the head circumference and the ventricular atrium diameter

“Brain – Cavum septum pellucidum

– Ventricular atrium

– Cerebellum”

  1. a requirement that certain images should be captured, stored and archived, which should be “magnified appropriately.” The images to be recorded include

“Head Circumference (HC) and ventricular atrium … and should include

  • Midline echo
  • The cavum septum pellucidum
  • The posterior horn of the lateral ventricle
  • Choroid plexus

Measures the circumference of the outer edge of the fetal skull.

Measures the posterior horn of the lateral ventricle.”

  1. at Standard 6.3 that

“All women should be offered a single further scan at 23 weeks of pregnancy to complete the screening examination if the image quality of the first examination is compromised by one of the following

  • increased maternal body mass index (BMI)
  • uterine fibroids
  • abdominal scarring
  • sub-optimal fetal position.”

The Defendant contended that the scan was carried out in accordance with the FASP guidelines.

The issue between the experts in this case was be encapsulated in this way:-

  1. Mr Howe, for the Defendant, was of the view that “if all the features required to be identified have been seen or reasonably believed to have been seen no further routine scans are offered in pregnancy”. It is his view that Dr Caric was entitled to come to the view that she “reasonably believed” that the CSP had been visualised and was present;
  2. Mr Gornall, for the Claimant, however, puts the matter differently and, it was suggested, “if all of the features (are) reasonably believed to have been seen then the practitioner must make a judgment whether they are confident that the feature is present and normal. If they are confident and (that) no further imaging will improve the situation then no further scanning is required. However, if they have doubt or they believe that they have seen the feature but the imaging has been impeded by a problem such as high BMI then they should arrange a further scan as the image may be clearer with increased gestation.”

The Defence set out that “Dr Caric believed that she had identified the presence of the CSP. It is averred that there are a number of images of the fetal brain taken during the scan of 2 June that show reflections that mimic a normal CSP and can reasonably be interpreted as such.”. This prompted a request by the Claimant to identify which of the 34 images taken at the time of the examination were here being referred to. The response identified 6 images, which were annotated with markings to show what had been relied upon.

Dr Caric accepted that there were “limitations with the scan clarity due to maternal build. It was not “optimal” – but often a scan will not be. We have to make a clinical judgment whether image clarity is “so bad” that it warrants any further repeat scans or investigations.” Nevertheless, Dr Caric went on to state that she did not have any such concern and “was able to visualize everything I needed to, and was reassured by my findings.”. She did add, however, that “if we were to bring back expectant mothers with increased BMI and “sub-optimal” scans – this would probably affect about 1 in 3 patients.”.

Mr Gornall’s response to this is that Dr Caric “appears to be suggesting that the Trust cannot deliver the required additional scans and therefore there has to be an acceptance that the images will be suboptimal. The FASP standards document of 2010 clearly states what should happen if the image is suboptimal in terms of repeat scans.”

Dr Caric’s response also misses a key point in relation to the purpose of the scan and the role of the consultant. If the features required to be visualised could be properly confirmed as present, then reassurance could appropriately be given (as it was) and relied upon. If, however, the required feature could not be properly visualised and confirmed to be present, then this should prompt a consideration of whether the potential implications of that was something which the expectant mother would be prepared to accept. It is anticipated that very many expectant mothers with an increased BMI and a sub-optimal scan would be content, if one item could not be confirmed as present, but the remainder of the scan were normal, to proceed with the pregnancy. However, there will be those (such as, for example, a parent who has already had a fetal abnormality detected like the Claimant) who would wish for a further level of reassurance, and would want to have a further scan in two weeks as suggested in the FASP guidelines. Accordingly, where the features of which confirmation is required under the FASP criteria cannot in fact be confirmed, it should not be for the doctor to make a decision in respect of the risk of abnormality that that creates, without either a further scan (as required by the guidelines) or at the very least without reference to the mother, but should be a matter for further consideration (and no doubt joint discussion), as the FASP makes clear. That is the answer to Dr Caric’s point about the proper approach to sub-optimal scans.

Mr Gornall also disagreed with the implication from Dr Caric’s suggestion that “where image clarity is affected by maternal obesity, the future scans will be affected by the same problem” – saying that “a scan conducted at 23 weeks gestation is clearer than a scan at 19 weeks gestation or 21 weeks gestation since the fetus is larger. The increase in size of the fetus will help to overcome poor imaging due to maternal body habitus.”. However, plainly. if the consultant is of the view that a further scan will be no clearer, then this leads back to the issue as to whether the consultant could be confident from the 21 week scan that the relevant features had been confirmed as present. As set out above, Mr Gornall was clear that what was shown on the images was insufficient to provide the relevant degree of confidence to be able to provide the reassurance that was given.

Dr Caric’s evidence was clear that had she concluded that she could not confirm the presence of the CSP, she would not have sought another scan, but would have referred the Claimant to the Royal Victoria Infirmary in Newcastle. The decision as to any further scanning (whether by ultrasound or MRI) would then be taken by the Consultant at the RVI. The Defendant admitted that with such a referral, on the balance of probabilities the Claimant would have undergone an MRI scan, with very probable identification of the abnormality and the further consequences set out above.

The sole issue the Court had to decide was, therefore, whether the Claimant can establish that Dr Caric should not have passed the scan as showing the normal features required to be visualized under the FASP criteria, given the specific evidence relied upon, or whether her assessment of that evidence met the standard reasonably to be expected of a consultant in her position.

A trial took place over three days where the evidence was head by the court. Due to the complex nature of the claim, the Judge deferred the judgement and it is expected to be received before 31st July 2019.

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