The recent High Court case of Spencer –v- NHS North West in 2012 illustrates how important it is for clients to understand that not every disaster that happens in the course of medical treatment automatically means medical negligence has occurred; and if the clinicians were not to blame, then there is no claim, no matter how tragic the circumstances and no matter how large the potential claim for the injured claimant.
In this particularly sad case, a young baby, Ashley Spence, was born on 5 Aug 1994 in a northern hospital. She was in the post-natal ward with her mother overnight, in readiness to go home the next day. At about 11:00pm that night, the midwife on duty carried out a very full examination of Ashley and found her to be fine. At 12:30, the mother called the midwife back because Ashley would not settle and was intermittently crying. The midwife believed that Ashley simply needed comforting, so she took her from her cot, wrapped her in a blanket and put her in bed next to her mother, whereupon the baby almost immediately quietened down. Perhaps understandably, the midwife saw no reason to examine Ashley again at that point.
From then until about 10:00 the next morning, Ashley went downhill and became very ill. She was diagnosed with a very serious bacterial infection, which led to meningitis and left her with severe and irreversible brain damage.
Her mother brought a medical negligence claim on Ashley’s behalf against the hospital Trust, arguing that because this particular infection was so serious (although not common) and because the leading medical textbook about it emphasised how important it was for clinicians to recognise the very early symptoms of it, the midwife had been negligent in not examining Ashley again at 12:30, and that she should have called for a consultant paediatrician to check Ashley, because of the risk of this kind of infection.
The court decided that the midwife had no reason to suspect any increased risk factors in Ashley’s case and that because it was quite normal for a new-born baby to cry and be unsettled in this way, there was nothing to alert the midwife to the fact that she was developing a serious illness. When the baby settled upon being placed with her mother, this would quite understandably have led the midwife to believe that her feeling that the baby just wanted comforting was correct- and therefore there was nothing to suggest that she ought to be examined again, or that an expert should check her over.
The clinical negligence claim against the Trust therefore failed, simply because the midwife had done nothing wrong and there had been no medical error or medical mistake.