Darryl Allen KC - Court finds that midwife fabricated labour and delivery records
28th July 2023
Following a five day liability trial, Mr Justice Martin Spencer has concluded that a midwife fabricated fetal heart rate records in the later stages of labour and delivery in order to conceal her failure to undertake essential fetal heart rate monitoring.
The Claimant, represented by Darryl Allen KC, sustained brain injury as a result of an acute profound hypoxic-ischaemia [“APH”] at the time of his birth in July 2012. The APH was caused by cord compression. By the time of trial, it was agreed that the APH had commenced approximately eight minutes prior to delivery and that over that period the Claimant would have been profoundly bradycardic. The Claimant was not successfully resuscitated for a further seven minutes and so the overall period of APH was approximately 15 minutes.
According to the “contemporaneous” medical records, the attending midwife carried out intermittent auscultation of the Claimant’s heart rate on four separate occasions over the eight minute period prior to delivery when the Claimant would have been bradycardic. In her evidence she claimed that on each occasion she listened to the Claimant’s heart rate for 60 seconds immediately following a contraction, as per the relevant NICE Guidelines. On each occasion, according to her records and her evidence, she obtained a completely normal heart rate with no indication of fetal distress. That extended all the way up to the final minute immediately prior to delivery. However, the Claimant was born with his umbilical cord wrapped tightly around his neck, with a heart rate below 40, in very poor condition and with an APGAR score of 1 at one minute.
None of the medical experts were able to offer any explanation as to how the midwife could possibly have obtained normal and reassuring fetal heart rates when the Claimant would undoubtedly have been profoundly bradycardic.
The Claimant also led expert evidence from Mr Austin Ugwumadu, Consultant Obstetrician and Gynaecologist, that prior to the onset or the bradycardia, the Claimant would have suffered from complicated variable decelerations which should have been detected by competently performed intermittent auscultation. Although unable to specify precisely when those complicated variable decelerations commenced, he confirmed that they would have been present, established and worsening over the 25-30 minutes prior to delivery. That analysis was not disputed by the Defendant’s expert and was accepted by the Judge. Once again, the attending midwife claimed to have carried out intermittent auscultation over that period, listening to the fetal heart rate every five minutes for a full 60 seconds after a contraction. On each occasion she claimed to have obtained a normal and reassuring heart rate.
On the totality of the evidence the Judge found,
“…once Midwife Kong thought that she was moving towards delivery, which is when she thought that delivery was “imminent” and called Sr Cook into the room at 15:05, there was no further intermittent auscultation, and the entries in the notes and on the partogram for this period were fabricated.”
Ultimately, the Judge found (i) that there was a failure to accurately monitor the Claimant’s heart over the final 26 minutes of labour, (ii) competent intermittent auscultation over that period would have identified complicated variable decelerations and then the profound bradycardia, which (iii) would have led to earlier delivery and avoided all of the Claimant’s brain injury.
The full judgment can be found here.
The case will now proceed to quantification of damages.
Darryl Allen KC was instructed by Trevor Ward, Partner at Fletchers Solicitors.