- Bookmark
- Share
- CaseIQ
McGuinn v Lewisham And Greenwich NHS Trust
Factual and Procedural Background
The Plaintiff, a 38-year-old woman with two children, underwent a second pregnancy during which she received antenatal care at Lewisham Hospital, under the responsibility of Company B (Lewisham & Greenwich NHS Trust). During this pregnancy, a series of ten ultrasound scans were performed between 10 and 39 weeks gestation. After birth, the Plaintiff's second child was diagnosed with severe neurodevelopmental impairment and microcephaly, a condition characterized by a significantly small head circumference associated with physical and cognitive disabilities.
The Plaintiff contends that the medical staff failed to recognize the risk of microcephaly based on ultrasound findings, including small fetal head circumference, reduced growth rate, mildly enlarged cerebral ventricles, and a single umbilical artery. She alleges that this failure to refer her for tertiary level assessment and to inform her of the risks constitutes clinical negligence, seeking damages for wrongful birth. The Defendant denies negligence, asserting insufficient antenatal evidence of risk.
The court's current task is to determine whether, on the balance of probabilities, the Defendant breached the duty of care by failing to appreciate the risk and refer the Plaintiff for further assessment during the pregnancy.
Legal Issues Presented
- Whether the Defendant breached their duty of care by failing to recognize and act upon ultrasound evidence indicating the fetus was at risk of microcephaly during the Plaintiff’s second pregnancy.
- Whether the failure to refer the Plaintiff for tertiary level investigation and assessment constituted clinical negligence.
- Whether the fetal ultrasound findings, particularly at the 5th and 7th scans, provided sufficient evidence to warrant such referral.
Arguments of the Parties
Plaintiff's Arguments
- The ultrasound scans revealed features (small head circumference, decreased growth rate, slightly enlarged cerebral ventricles, single umbilical artery) indicating risk of microcephaly, which should have prompted referral for tertiary assessment.
- The Defendant’s failure to recognize these signs and inform the Plaintiff of the associated risks denied her the choice to terminate the pregnancy.
- Expert evidence supports that the 5th and 7th scans showed sufficient evidence of risk, and that the Defendant’s interpretation and actions fell below reasonable clinical standards.
Defendant's Arguments
- The Defendant asserts that antenatal evidence was insufficient to suspect microcephaly, relying on clinical practice that diagnosis requires head circumference more than three standard deviations below the mean and/or disproportionate HC/AC ratios.
- The Defendant maintains that the fetal measurements and growth charts did not indicate microcephaly risk warranting referral or further investigation.
- They argue that the scans were interpreted in accordance with accepted medical opinion and that the Defendant’s actions reflected reasonable clinical practice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 | Standard for clinical negligence: a doctor is not negligent if acting in accordance with a responsible body of medical opinion. | The court applied the Bolam test to assess whether the Defendant’s medical opinions and practice were reasonable. |
| Maynard v West Midlands RHA [1984] 1 WLR 634 | Recognition of differing professional opinions and that courts should not find negligence solely by preferring one body of opinion over another. | The court acknowledged the existence of differing expert opinions and emphasized the need for logical basis in medical opinions. |
| Bolitho v City and Hackney Health Authority [1998] AC 232 | Court’s role in assessing the logical basis of medical opinions and rejecting those lacking reasonableness or responsibility. | The court evaluated the logical coherence of the Defendant’s expert opinions and found some to lack a sufficiently rational basis. |
| C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 | Guidance on assessing expert medical evidence, including factors such as good faith, competence, respectability, and logical reasoning. | The court used these principles to weigh the credibility and logic of expert evidence presented by both parties. |
Court's Reasoning and Analysis
The court conducted a detailed examination of the ultrasound scan records, expert reports, and medical literature on microcephaly diagnosis. It recognized that microcephaly diagnosis requires a sufficiently small fetal head circumference, typically measured in standard deviations below the mean, and that fetal growth velocity is a critical factor. The court found that a head circumference below the 3rd centile (approximately 2 standard deviations below the mean) constitutes evidence that the fetus may be at risk of microcephaly, requiring careful assessment.
The court analyzed the Defendant’s reliance on the HC/AC ratio and the criterion of three standard deviations below the mean, concluding that these positions overstated the threshold for suspecting risk. It accepted the Plaintiff’s expert opinion that loss of head growth velocity and decreasing centile positions on both growth and bar charts indicated risk of microcephaly from the 5th scan onward.
The court found that the Defendant’s consultant, Mr Sau, failed to review all relevant data (notably the bar charts) and did not appropriately interpret the significance of the fetal measurements at the 5th scan. The decision to schedule the next scan at 34 weeks instead of earlier was deemed insufficient given the evidence.
Regarding the 7th scan, the court noted that the fetal head circumference had declined further, and although ventriculomegaly was borderline, the failure to calculate or consider the Vp/H ratio (ventricle to hemisphere ratio) was a significant omission. The tertiary specialist, Miss Abdo-Nassri, did not refer the Plaintiff for further tertiary assessment despite indications of risk, which the court found inadequate.
The court found that the Defendant’s expert opinions, particularly those of Mr Howe, lacked a sufficiently logical and rational basis when contrasted with the clinical evidence and the Plaintiff’s expert’s more nuanced approach. The court emphasized that reasonable clinical care requires recognition of the combined significance of fetal head measurements, growth velocity, and ventricular measurements, and appropriate referral when risk is indicated.
Holding and Implications
The court held that the Defendant breached the duty of care owed to the Plaintiff by failing to recognize and act upon evidence from the 5th and 7th ultrasound scans indicating that the fetus was at risk of microcephaly.
The court determined that no reasonable clinician would have failed to appreciate this risk and that the Plaintiff should have been referred for further investigation and assessment at a tertiary centre at or before the 5th scan (around 30 weeks gestation) and definitively at the 7th scan (35+1 weeks gestation).
The direct effect of this decision is that the Defendant is liable for clinical negligence in respect of the antenatal care provided during the Plaintiff’s second pregnancy. The court did not establish any new precedent but applied established principles to the facts, emphasizing the importance of comprehensive assessment of fetal growth data and timely referral in suspected cases of microcephaly.
Alert