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Alleged failure to complete a baby check

10 November 2021

By Dr Sophie Haroon, Medicolegal Consultant, and Simon Evans, Litigation Solicitor, Medical Protection

Baby H (later called Child H) was born at term by normal vaginal delivery. He had no family history of note. At 24 hours old he had his newborn baby check and the hip examination was recorded as normal.

Six weeks later he was seen by Dr B for his six week GP baby check (subsequently referred to as ‘the baby check’). This was undertaken and documented in his medical records, but Dr B simply wrote “baby check normal” rather than  documenting each individual aspect of the examination.  He also addressed the mother’s concerns about a strawberry naevus on the baby’s arm. Baby H’s consultation lasted 15 minutes, as recorded by the practice’s computer system. Dr B never saw Baby H or his mother again.

Baby H’s mother later said her son had a “clicky” hip, which she had mentioned to the public health nurse at the baby clinic that week and also to  Dr B. Dr B recalled no such remarks.

Thereafter, Baby H was seen by the public health nurse at various intervals and was noted to be doing well. He also had two consultations with other GPs at the practice for vomiting and regurgitation, and one for a viral wheeze. No other issues except these health problems were raised at these reviews.

 At age nine months, the public health nurse noticed Child H was not weight bearing. She referred him to his usual GP, who noted asymmetrical hip creases and that his right leg was shorter than the left. The GP arranged an urgent paediatric orthopaedic referral. Shortly after, Child H was diagnosed with developmental dysplasia of the right hip (DDH).

Child H had surgery at the age of ten months including a right hip arthrogram, adductor tendon release and positioning in a hip spica. After three months the spica was removed and Child H was in a brace for 12 weeks.

He started to walk at age two and a half years. His only limitations were being unable to run well and some hip discomfort when active. Later review showed Child H to be progressing well towards his milestones albeit slightly slower compared to his peers. Radiologically, his hip appeared good.  

Allegations

Dr B received a solicitor’s letter, representing Child H’s mother, alleging that Dr B failed to undertake a hip examination at the six week baby check. It was stated that, if Dr B had undertaken a hip examination, he would have identified that Child H had hip instability, and urgently referred him to hospital where DDH would have been confirmed and then managed with a Pavlik harness. Instead, Child H suffered a seven-month delayed diagnosis, pain, delayed milestones, the need for more intensive treatment and possibly a poor prognosis.

The plaintiff’s GP expert advised that there was no evidence of a hip examination by Dr B. If the hips were examined this was not documented; also, if the hips were examined it was inadequate, as the hip instability was not identified. No comment was made in the records about Mrs H’s reference to a “clicky” hip.

How Medical Protection assisted

A letter of response denying breach was rejected by Mrs H’s solicitors. Proceedings were served. Medical Protection sought expert opinion on breach and causation.


Medical Protection’s GP expert differed from the claimant’s expert, saying:

  • Although the baby check was not fully documented, it was not possible to infer that Baby H’s hips were not examined
  • The consultation was 15 minutes: enough time to undertake the baby check

  • Dr B’s comments demonstrated he knew how to undertake the baby check, especially hip examination, and when to act on abnormal findings like a “clicky” hip

  • If the court accepted Dr B had examined Baby H, this would have been done in line with normal practice

  • Ortolani and Barlow tests have a high specificity but a low sensitivity1, so it was not possible to state that Dr B did not perform them properly because these tests are not effective in diagnosing DDH2,3
Both parties’ causation experts acknowledged:

  • The delay had led to more intense treatment – surgery, spica cast and brace – instead of a Pavlik harness, but the prognosis was optimistic given Child H’s good outcome so far. There was a small risk of later surgery but otherwise his hip could last to his 60s or 70s before needing replacement, much in line with the general population  

  • If the court accepted Mrs H’s evidence of a “clicky” hip prior to the baby check, then on the balance of probabilities, a reasonably competent hip examination by Dr B would have identified a hip abnormality
  • If the court rejected her evidence, then on the balance of probabilities, a reasonably competent hip examination by Dr B would not have identified a hip abnormality.


Witness statement: Baby H’s mother 


• Both of her son’s hips were “clicky”, especially the right
• She had mentioned this to the public health nurse and Dr B
• Baby H was on her lap during the baby check and his hips were not examined
• The entire appointment was no more than ten minutes
• She saw Dr B again when Baby H was four months old and again mentioned a “clicky” hip plus mobility issues, but nothing further was done
• Her son was in pain and crying constantly during his early months of life.


Witness statement: Dr B

• He definitely did the baby check on Baby H including a hip examination involving Ortolani and Barlow tests
• Unfortunately, he had not documented the full baby check in the medical records , but possibly because he had been distracted by the mother’s concerns about her son’s strawberry naevus
• If he had found anything unusual, he would have referred, having undertaken many hundreds of similar checks in the past
• He had no recall of the mother saying her son had “clicky” hips and would have explored this further if she had mentioned it
• There was no evidence of the mother reporting similar concerns to the public health nurse,  with whom Dr B had a close working relationship
• He did not see Baby H when he was four months old – this was a completely different GP.




Counsel for Medical Protection also highlighted several factors that questioned Mrs H’s version:

  • The objective computer system timings did not accord with Mrs H’s reported consultation length
  • It was inconceivable that 15 minutes had simply been spent on a strawberry naevus
  • If Dr B was able to document the naevus – a benign issue – then it was unlikely he would have failed to record a genuine concern like a “clicky” hip if sincerely mentioned at the baby check

  • The alleged constant crying for the first few months of life was largely inconsistent with the medical records
  • The alleged second consultation with Dr B was prima facie implausible, as failing to act on Mrs H’s alleged concerns would have been a gross dereliction of a GP’s duty of care. The actual GP who saw Child H at this time did not record any “clicky” hips
     
  • Despite Mrs H’s concerns, she did not mention “clicky” hips at any subsequent GP or public health nurse consultations. Even at nine months, Child H’s presentation was one of not weight-bearing as opposed to “clicky” hips

  • Witness statements from Child H’s father and grandmother did not corroborate mother’s reference to “clicky” hips. 

Outcome

This was seen as a case to defend. The claim proceeded to trial where it was dismissed against the member after two days. Dr B held up well under cross-examination during the trial, which was held remotely  due to the COVID-19 pandemic.

The judge preferred Dr B’s account – to the effect that he had performed the baby check including a hip examination in line with his usual practice – over that of the claimant whose evidence was found to lack credibility.

This was on the basis that there was:

• no corroborative evidence from the medical records by any other healthcare professionals regarding her alleged reports of “clicky” hips
• no corroborative witness evidence from family members despite the mother allegedly reporting the same to them
• no corroborative evidence in the records of the alleged second consultation with Dr B.

Counsel for Medical Protection argued the mother’s recollection of the events was based on “false memory” constructed with hindsight. The judge accepted this.

€30,000 was saved on claimant damages and €85,000 on claimant solicitor’s costs. Defence costs were awarded, subject to court approval. 

Learning points

  • Hip examination occurs as part of the HSE Child developmental check programme. It aims to detect DDH, a significant public health issue, representing the single largest cause of total hip arthroplasty in young adults3. Examination involves the Ortolani and Barlow tests at birth and at six to eight weeks, but these are not particularly sensitive4.
  • Judicial commentary5 has affirmed that failure to detect the possible presence of DDH does not automatically constitute a breach of duty in its own right.
  • Good, contemporaneous clinical records are the most optimal way of defending a claim. In the absence of this, a robust statement about one’s usual clinical practice can greatly assist. Medical Protection provides guidance and support in the drafting of witness statements. However, a witness statement is not a panacea. A judge sympathetic to the claimant, a credible claimant and corroborative evidence from them can quash even the best of witness statements. The importance of a decent clinical record cannot be overstated.
  • Forensic analysis of witness statements of both parties can uncover versions of events that do not stand up to scrutiny.
  • In the rare event that a claim goes to court, Medical Protection is able to provide members with the support they need to face the witness box, as well as help to prepare and present themselves well so their testimony can stand up to critical observation.

References

1. Sewell MD, Rosendahl K, Eastwood DM. Developmental Dysplasia of the Hip, BMJ 2009; 339:b4454.

2. Godward S, Dezateux C, on behalf of the MRC Working Party on Congenital Dislocation of the Hip. Surgery for congenital dislocation of the hip in the UK as a measure of outcome of screening, Lancet 1998; 351(9110):1149-52.

3. Broadhurst  C, Rhodes AML, Harper P, Perry DC, Clarke NMP, Aarvold A. What is the incidence of late detection of developmental dysplasia of the hip in England? Bone Joint J. 2019; 101-B:281-287.

4. Davies R, Talbot C, Paton R. Evaluation of primary care 6- to 8-week hip check for diagnosis of developmental dysplasia of the hip: a 15-year observational cohort study, Br J Gen Pract. 2020; 70 (693):e230-e235.

5. Dainton v Powell [2011] EWHC 219 (QB). Bailli [Online]. Available at: http://www.bailii.org/ew/cases/EWHC/QB/2011/219.html (Accessed: 7 April 2021).