Webb v Liverpool Women’s NHS Foundation Trust - shoulder dystocia
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In the case of Webb v Liverpool Women’s NHS Foundation Trust  EWHC 133, the Claimant was born by vaginal delivery at 17.52 pm on 25 October 1999 following an induced labour. Unfortunately she sustained a right brachial plexus injury (BPI) during the birth process caused by shoulder dystocia.
There were two limbs to the Claimant’s case. The first limb was based on the allegation that a Caesarean section was indicated at various times during labour and that the Defendant Trust had been negligent by proceeding to vaginal delivery.
The second limb was based on the grounds that the delivery itself was negligently mishandled because the midwives employed by the Defendant failed to adopt the proper and recognised procedures, well-known at the time, to avoid such an injury.
These two separate sets of allegations became important when the court came to look at the issue of costs.
The Claimant alleged the dosage of Syntocinon throughout the morning on the day of birth had been excessive and unnecessary and taking account of her contraction rate and the guidance in the then current Royal College of Obstetricians and Gynaecologists (RCOG) Guideline "Induction of Labour."
Syntocinon is a synthetic drug used to induce labour by stimulating uterine contractions and hence also cervical dilation in the same way as the naturally occurring hormone, oxytocin.
The Claimant’s mother was contracting at no less than 4 per 10 minutes from 06.00 rising to 4/5 and thereafter to 6 and indeed 7 prior to 13.30 before reducing to 5/6 and then 5 from 13.30. From 05.30 to 06.00 she was contracting at the rate of 3 every 10 minutes. So far as the Claimant’s obstetrician was concerned, the mother was suffering uterine hypercontractility (excessive contractions). The RCOG guideline specified that the solution to that was reduction in or cessation of Syntocinon but that was not the course of action taken here.
The obstetricians for Claimant and Defendant were agreed as all the relevant risk indicators for shoulder dystocia were present in the Claimant’s mother’s case. The Claimant’s obstetrician believed that the Claimant’s was hypercontracting when contractions exceeded 4 in 10 minutes. The Defendant’s obstetrician accepted that when contracting at that rate (5 in 10 minutes had been the minimum rate of contraction since 09.30) the Claimant’s mother could have been considered to fulfil the formal definition of hyperstimulation but "the contractions were short lasting with adequate relaxation between."
The Claimant’s obstetrician was also of the view that in light of the suspected larger than average foetus, the prolonged maximal Syntocinon infusion and the occipito anterior position of the foetus, the secondary arrest in labour was probably primarily caused by cephalopelvic disproportion. In his oral evidence, he stated in terms that the mother’s labour went into arrest because of disproportion. The Defendant’s obstetrician was only prepared to say that that was possibly the cause.
Saffman J found no negligence in relation to the two later times of 15.30 hours and 16.15 hours. The Claimant’s own obstetrician’s evidence from the witness box was to the effect that by 16:25 hours some clinicians would have permitted a vaginal delivery to go ahead in the light of the state of dilation and the position of the foetus. Consequently even if there was a breach of duty in failing to decide on a Caesarean section at 15:30 hours the Claimant could not on balance establish causation. Inevitably if the Claimant could not establish causation in respect of a decision made at 15:30 hours, she could establish causation in respect of a decision made at 16.15 hours.
Consequently the real issue in this case was whether a caesarean section should have been carried out at 13:50 hours or 15:00 hours.
Saffman J had before him, evidence to the effect that there was a body of medical practitioners, represented by the Defendant’s obstetrician, who in 1999 would not have seen it as negligent to continue with Syntocinon infusion and monitor pressure by use of an Intra Uterine Pressure catheter. In those circumstances, the Claimant could only succeed if Saffman J was satisfied on balance that such a view lacked logical force.
Lack of logical force was his conclusion for the following reasons.
- It was agreed at least by the obstetricians that all, not some, but all, the risk factors described above for shoulder dystocia were present at 13.50 hours.
- In addition, as well as the agreed risk factors there was evidence here of a "good size baby".
- In addition the mother was clearly in dysfunctional labour despite having been on Syntocinon since 05.30 and at maximal or near maximal dosage since 09.30 hours.
Consequently Saffman J was driven to the conclusion that the decision not to proceed to Caesarean section at 13.50 did indeed lack logical force and that accordingly negligence was established. Causation of the BPI was not an issue as regards negligence at that time, and so did not need to be further addressed.
In relation to the later time of 15.00 hours, Saffman J found no negligence.
The next issue (the “Second Limb”) was whether the midwives involved in the delivery were negligent in their handling of the delivery and that BPI was the result. On this issue, Saffman J accepted the evidence of the Defendant’s witness that they had done that they could for the Claimant, and he found for the Defendant.
So the Claimant won her case.
The court then came to the issue of costs. At that point, the judge was told that on 1 October 2014 the Claimant had made a Part 36 offer to settle liability on the basis that she received 65% of the damages that would accrue on a 100% basis. That was rejected on 9 October by the Defendant, who replied in writing an offer that it had made verbally at a settlement meeting on 1 October to the effect that it would settle on the basis that the claimant received 30% of the damages.
The Claimant contended that the consequences of Part 36.14(3) should apply and that the Claimant should have all her costs on an indemnity basis from the expiry of the relevant period plus interest thereon at the enhanced "Part 36 rate" plus the enhancement of damages specified in 36.14(3)(a) and (d).
The Defendant's position was that the consequences of Part 36.14(3) should be disapplied because, by reference to Part 36.14(4), in the circumstances it would be unjust to apply them. Even if Part 36 was not disapplied, it did not prevent the court from making an issues based or proportionate costs order to reflect the fact that the Claimant failed in respect of the negligent delivery allegations (the “Second Limb”) bearing in mind that the Second Limb was a discrete and independent allegation.
Saffman J handed down his decision on this issue in Webb v Liverpool Women’s NHS Foundation Trust  EWHC 449. He said it was not unjust for the consequences of Part 36 to apply in principle. The Defendant’s counsel had conceded that:-.
- The Claimant was entitled in any event to the additional amount pursuant to CPR 36.14(3)(d). This was an all or nothing case, the Claimant was entitled to her damages in full and thus logically to Part 36 damages enhancements in full.
- There should not be a proportionate costs order to reflect the fact that the Claimant failed to establish that a Caesarean section should be performed on the 3 occasions after 13.50 hours when she said the opportunity to do so was missed. The fact that she was unsuccessful in respect of some of the sub-allegations was not a ground for depriving her of the costs of establishing that the birth was mismanaged by the failure to administer a Caesarean section.
- The Defendant did not seek costs in successfully defending the Second Limb. It merely asserted that the Claimant should not be awarded a proportion of her costs to reflect that she lost on that issue.
Saffman J said that the first question to address was whether, even in the absence of a Part 36 offer, a proportionate costs order would have been appropriate. Such an order was permitted pursuant to Part 44.2 and in particular Part 44.2(6). The general rule was that the unsuccessful party should pay the costs of the successful party. In Day v Day  EWCA Civ 415 the test applied by the court to identify the successful party was to ask which party it was that was writing the cheque as a result of the judgment. By that test the successful party was emphatically the claimant. A proportionate costs order would therefore be a departure from the general rule. He also referred to Multiplex Constructions UK Ltd v Cleveland Bridge UK Ltd 2008 EWHC 2280 TCC where Jackson J (as he was) set down some propositions of general application.
Each Limb of the Claimant’s case was a separate, self contained, discrete claim, supported by its own separate expert evidence. The conclusion that the delivery was not negligently managed had been a determination of fact. The experts were agreed that if the delivery had been managed as the Claimant's mother and her lay witnesses suggested then the delivery was negligently managed. If it was managed as the Defendant's witnesses of fact contended, then it was not.
At all times the Second Limb claim was decidedly weaker than the First Limb claim. Yet it was pursued as a separate, stand alone claim.
If a proportionate costs order was appropriate in respect of a Claimant with capacity then it was appropriate where the Claimant was a minor.
In the absence of a Part 36 offer, Saffman J would have been disposed to exercise his discretion to make a costs order that required the Defendant to pay only a proportion of the Claimant's costs to recognise the failure of the Claimant to establish her Second Limb claim. He had not overlooked the Claimant's complaint that the Defendant's approach to settlement was inflexible and their offer to settle at 30% of total damages was overly parsimonious.
The answer to that was to do precisely what the Claimant did here, namely make a Part 36 offer which had the effect of exposing the inflexible party to the possibility of the full rigours of the Part 36 consequences being visited upon them.
However the fact that there was a successful Part 36 offer did not mean that the court was unable to make an issues based or proportionate costs order. Saffman J would make a costs order in favour of the Claimant limited to a percentage of her costs. The figure would be that which was appropriate to reflect the percentage of time expended on establishing the First Limb but not the Second and 100% of the disbursements directly incurred in establishing the First Limb but not the disbursements directly incurred in seeking to establish the Second Limb. The costs order would include all the enhancements stipulated in Part 36.14 from the Relevant Time. The starting point was that the Part 36.14 costs consequences would apply to those costs awarded to the offeror.
In so far as the Defendant argued that it was appropriate to disallow the enhanced interest payable on damages, then as a matter of principle Saffman J would not do so. He could see no distinction between that enhancement and the 10% enhancement permitted by Part 36.14(3)(d) and which the Defendant conceded as being due.
The issue of the precise percentage would be heard at a later hearing.
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