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MIDWIFE EXPERT CONSIDERS RECENT HIGH COURT LIABILITY JUDGEMENT
Posted on: 24 April 2018
Rajatheepan v Barking, Havering And Redbridge NHS Foundation Trust  EWHC 716 (QB) (13 April 2018
On the 13th April 2018 the High Court judgment of HH Judge McKenna was handed down in this case.
The case relates to catastrophic brain injuries sustained by the infant Claimant shortly after his birth. At the heart of the case was the extent of the Claimant’s mother’s understanding or rather lack of understanding of English and her ability or lack of it to communicate effectively with the defendants’ midwives.
The Claimant’s parents came to the UK from Sri Lanka and their native language is Tamil. At the date of the Claimants birth, it is said, that the Claimant’s mother spoke only a very few words of English. The Claimant was delivered by Caesarean section in July 2009 and his condition appeared to be good and there were no concerns about him by the consultant or midwife that carried out the new born examination. Two days after the birth the Claimant and his mother were discharged from hospital. The day after discharge, the community Midwife arrived at the family home to discover the Claimant was pale and lethargic and having not been fed since the previous evening. The Claimant was in a hypoglycaemic state and the hypoglycaemia caused catastrophic brain injuries.
The Court was required to adjudicate upon the discharge of the Claimant and his mother. In summary, upon the allegation that the Claimant’s poor feeding was attributable to the defendants’ failure effectively to advise the Claimant’s mother on proper feeding techniques and what to do if there was poor feeding in light of the very limited extent of her understanding of English and that the Claimant should not have been discharged when he was, in which case the damage would have been avoided.
Breach of duty was denied. The Defendants argued that the Claimant’s post-natal care before he left hospital was, on the face of the contemporaneous notes, routine and appropriate.
Finding for the Claimant HH Judge McKenna said :
- As it seems to me, the overwhelming weight of the evidence is that Mrs Rajatheepan had very little ability with the English language and was certainly unable to understand anything but the simplest of instructions and only then when accompanied with appropriate hand gestures. Her own evidence was to that effect and I accept the substance of that evidence supported as it is by that of her husband and his friends and her general practitioner Dr. Niranjan.
- Moreover, in the course of their oral evidence each of the midwives, in marked contrast to their strong assertions in their witness statements that there were no difficulties with communication, to a greater or lesser extent, accepted in effect that there was a language barrier, albeit that they each thought, mistakenly, that they had succeeded in surmounting it with the use of hand gestures, sign language and the like.
- I turn now to the discharge conversation if I can so describe it. Given my findings on the limited extent to which Mrs Rajatheepan understood English, I have no hesitation in concluding that she did not and could not reasonably be expected to have understood the substance of the information which Midwife Oriakhi indicated in the course of her evidence that she had communicated, she felt effectively, to Mrs Rajatheepan as a result of a combination of the language she used and hand gestures. I entirely reject her evidence on this issue which is inconsistent with many of the entries in the records and frankly it beggars belief that she maintained her ability to convey effectively a substantial amount of often complicated information in the course of the twenty minute discussion which she said she had with Mrs Rajatheepan. To my mind, she should have done what Midwife Theobalds did on 4th August and declined to conduct a discharge conversation without, at the very least, the presence of Mr Rajatheepan or, more appropriately, the use of the language line or of an interpreter.
- The reality is that no one had ever in fact given Mrs Rajatheepan a clear and understandable explanation of the importance of feeding still less as to how she should respond if she had concerns. Because of the language barrier, Mrs Rajatheepan had been unable to communicate her concerns to hospital staff and when those concerns were communicated on the parent's behalf by Mr Gunaratnam they were not acted upon. Given the time at which this review should have taken place, on the balance of probabilities, I conclude that if it had taken place as it should have done the Claimant and his mother would have been kept in hospital overnight and the difficulties with feeding would have become apparent and the injuries in fact suffered would have been avoided.
The judgment reinforces the importance of dialogue and that it is not so much the actual means of communication but it's adequacy. The Midwifery experts called for each side agreed that if the Court found that the Claimant’s mother and the midwives were not able to communicate effectively with each other, that this would not be an acceptable standard.
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About the Author
Marie Walmsley is an experienced Registered Midwife, who has both UK and International experience. In addition to her clinical role Marie provides expert witness reports on Midwifery Nursing Care on both Liability and Quantum at Maggie Sargent & Associates. To see Marie's profile, please click here