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Infant death leads to complaint and claim

15 August 2023

An O&G consultant and paediatrician face investigation after a baby dies – how did we assist? By Peter Mordecai, Claims Manager, Medical Protection.

Ms Y was admitted in early labour under our first member, Dr A, consultant obstetrician and gynaecologist. Dr A examined Ms Y and ordered intermittent CTG and that Ms Y be given an enema. The nurse examined Ms Y and found that she was 2cm dilated. The nurse noted that the result of the CTG was reactive.

On the next day, the nurse called Dr A to see Ms Y. Dr A noted that Ms Y passed two clots vaginally, she was 3cm dilated and the foetus head was still high. The CTG results were okay. Dr A diagnosed Ms Y with concealed abruption. He advised Ms Y to undergo an emergency caesarean section and she agreed to the same where her baby was delivered uneventfully with an APGAR score of 9. The nurse noted that Ms Y was stable postoperatively and there was no excessive blood loss; Dr A saw Ms Y and noted that she was well. Ms Y and her baby were discharged well two days later.

Four days later Ms Y brought her baby to the Emergency Department. The baby was seen by the medical officer who noted a history of jaundice for three days. On examination the medical officer noted that the baby was active to handling and had no pallor. The medical officer’s preliminary diagnosis was neonatal jaundice. The baby was admitted under the care of our second member, Dr B, consultant paediatrician. Dr B decided to perform blood tests, which noted the serum bilirubin to be 18.0 mg/dl Dr B ordered double phototherapy to be started and for Serum bilirubin to be repeated the following morning.

The next day the baby was seen by Dr B who, on examination, noted that they were having phototherapy, and was active and feeding. Examination of the cardiovascular system was normal and the bilirubin was decreasing. Examination of the abdomen revealed that it was soft. Dr B ordered that single phototherapy be continued and to repeat the serum bilirubin the next morning.

On the following day the medical officer received a call from the nurse informing them that the baby had collapsed and was unresponsive. The medical officer noted that the nurse had already commenced bagging. The medical officer noted that the baby was unconscious, had no spontaneous breathing and was pale, oxygen saturation was unrecordable, and pupils were fixed and dilated. Active resuscitation was commenced. The baby was intubated. Thirty minutes later Dr B arrived at the hospital and reintubated the baby and bagging was done. Oxygen saturation picked up and the baby was transferred to the ICU.

In the ICU, the baby was connected to a ventilator and was given normal saline and sodium bicarbonate. Oxygen saturations picked up and the baby’s peripheral perfusion appeared better. An echocardiogram was performed, which was normal. The baby was given another bolus of normal saline and the saturation and perfusion continued to improve. Dr B ordered that the baby be given dobutamine, penicillin, netromycin and IV 10% dextrose.

On examination one hour later, Dr B noted that the baby was pink and perfusion was good, and the blood pressure was 60/30. The baby had no spontaneous breathing and the pupils were fixed and dilated. The baby was gasping and had jittery upper limbs and clenching of the fists. Dr B diagnosed the baby with possible hypoxic ischemic encephalopathy and ordered that they be given dextrose saline, dobutamine, penicillin, netromycin and IV phenobarbitone 30mg.

An hour later Dr B noted that the baby was still stiff and jittery. The baby’s pupils were fixed and dilated. Dr B ordered a chest x-ray, echocardiogram and cranial ultrasound, which all came back normal. Dr B ordered further IV phenobarbitone 15mg.

Thirty minutes later Dr B saw the baby and noted there was no change. They therefore ordered IV phenobarbitone 15mg immediately and for arterial blood gas to be repeated. Ninety minutes later Dr B noted that the arterial blood gas showed pH of 7. They therefore ordered the bicarbonate to be removed from the drip and that the baby be taken off dobutamine but continuation of the IV fluid and dextrose saline.

In the afternoon Dr B noted that the baby’s general condition was the same. Examination of the cardiovascular system revealed no abnormalities but examination of the abdomen revealed that the baby was hypotonic and had no reflexes. The baby was gasping on and off and had no spontaneous respiration. Dr B ordered to continue treatment and to perform a blood test.

One hour later the baby’s condition was the same. Dr B ordered CT of the brain, EEG and blood test for galactosemia. These were performed and Dr B noted that the EEG showed no brain activity: the CT of the scan showed subdural haematoma along the posterior fossa.

The baby’s condition did not improve and on the tenth day started to deteriorate and have bradycardia. Dr B discussed with Ms and Mr Y the issues of resuscitation if the baby collapsed, and they were not keen for resuscitation. The baby had a cardiac arrest and was declared dead at 11.45pm.


What happened next?

Ms Y brought a Medical Council complaint against Dr B. Medical Protection were involved in the complaint and successfully defended it, with the Medical Council concluding there were insufficient grounds to support the allegation of misconduct against Dr B.

Ms Y therefore proceeded with a claim against Dr A and Dr B alleging there was:

  • Negligent delivery of the baby
  • Failure to note Ms Y’s medical history prior to delivery of the baby
  • Failure to monitor the baby’s health prior to discharge
  • Failure to do appropriate investigations upon the baby’s readmission to hospital
  • Failure to give appropriate treatment to the baby prior to the collapse
  • Failure to provide appropriate nursing instructions
  • Failure to appropriately resuscitate the baby
  • Failure to provide an appropriate amount of phenobarbitone.

Upon receiving the claim Medical Protection instructed local panel solicitors to file a defence on behalf of Dr B. In addition, an internal review of the evidence was held between the claims manager and medicolegal consultant at Medical Protection, who did not identify any areas of negligence. Medical Protection therefore proceeded to instruct a consultant obstetrician and gynaecologist and a consultant paediatrician to provide expert evidence in this matter. Both experts supported Dr B.

The reports were disclosed to Ms Y and she was invited to discontinue this action. She failed to do so and, despite not producing any evidence, proceeded with the claim. Medical Protection proceeded with defending this matter.



The matter went to trial and the judge concluded that:

  • Ms Y had failed to prove their case on a balance of probabilities against our members Dr A and Dr B. This was especially because Ms Y had failed to provide any supportive expert evidence
  • Ms Y had also failed to prove that Dr A and Dr B caused the demise of the baby.

Ms Y appealed the decision and Medical Protection maintained their defence. The Court of Appeal found in favour of our members.


Learning points

We often see claims being brought against clinicians despite no expert evidence being obtained by the claimant to substantiate their allegations. Medical Protection has had a number of successful trials recently where we have been able to defend a member’s actions because we have provided supportive expert evidence whereas the claimant has not.

Medical Protection will always consider the evidence at their disposal and what further evidence is required in order to support the defence of a member. The claimant’s position on what evidence they intend to furnish will be their decision; however, Medical Protection will always endeavour to provide the court with all the evidence possible in order for our members to receive a fair trial.