The dangerously high cost of poor communication

Many of the legal cases discussed in this column relate to circumstances surrounding the birth. Less usual are claims focussing on postnatal issues—particularly breastfeeding—but such a claim has just been settled in the English High Court (Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust, 2018). In fact, the original claim asserted that the baby's cerebral palsy was due to a delay in carrying out an emergency caesarean section, but this head of claim was dropped, with the focus shifting to an alleged failure to ensure that the mother understood what she was being told about breastfeeding. The court record notes that the baby's parents were Tamil refugees, and that the mother spoke very little English, although the father, when available, could translate.

The baby was born just before 11 pm on a Thursday. During the first 9 hours or so, he was given formula milk because the mother was tired, in pain and unable to breastfeed. However, the records state that at 15 and 19 hours of age he was breastfeeding well, and further feeds at 25 and 29 hours of age were recorded.

On the second postnatal day (a Saturday) the decision was taken to discharge mother and baby home, and a midwife completed the discharge process at about 2 pm (some 39 hours after the birth). She gave the mother a folder with ‘a large number of papers in it’, all in English, some involving ‘complicated concepts’. The midwife said she would have gone through key sections of these papers; the mother claimed she did not inspect the papers at this time, as she was more concerned about her baby's persistent crying.

The mother and baby did not leave the hospital until nearly 10 pm because the baby's father was working until the evening. At the time of discharge, the postnatal ward midwives did not appear to have identified anything untoward. Central to the claimants' case is that it was negligent to have discharged the mother and baby home because of a lack of good communication.

None of the midwives called to give evidence were able to recollect the events in question; it is often the case that witnesses have to rely on contemporaneous records to inform their written and verbal evidence. While no midwife could be sure that she had actually sat down and observed the mother breastfeeding her baby, the fact that the case notes recorded that the baby was feeding well was taken collectively by the midwives to indicate that they could not have had any concerns.

Part of the defence case was that ‘communication is of fundamental importance to midwives', and that the midwives would have been ‘likely to have realised if (the mother) was unable to understand what was being said to her’ (Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust, 2018 at paragraph 91). The judge, HHJ McKenna, commented that:

Asked why she had not told the midwives that she did not understand them, the mother cited her ‘inability to communicate (her) inability to understand’. While the judge was initially unconvinced by this assertion, he conceded that this was in fact the most likely explanation,

As to whether she had tried to convey her own sense of unease about the baby's crying, the mother claimed that, despite telling the midwives that she was worried, she was repeatedly told that this was normal for a newborn baby. Further attempts to get the midwives' attention were unsuccessful, as the judge described:

The father arrived to take his wife and son home. Having taken them to the car, he stated that he and a friend had returned to the ward to ask the midwives to examine the baby, who was still crying. He claimed that a member of staff had essentially repeated, somewhat rudely, that it was normal for a baby to cry.

The community midwife who visited at lunchtime the next day found the baby to be pale and lethargic, and called an ambulance. By the time the baby was readmitted he was unresponsive, floppy, with reported seizures. It transpired that he had not fed since leaving the hospital 15 hours earlier. Endocrinology reports agreed that 12-15 hours of not feeding would be sufficient to result in symptomatic hypoglycaemia; they also noted that if the baby had either not been discharged home when he was, or had returned to hospital within 8 hours, his catastrophic brain injuries would probably have been avoided.

Discussion

This case essentially turned on whether adequate steps had been taken by the postnatal midwives to ensure that the mother had sufficient understanding, before she left the hospital, about how to breastfeed, and how to manage any feeding problems. While none of the midwives could recall the specific events in question, one did remember that it was very busy that day, and it is hard not to have some sympathy for busy postnatal ward midwives looking after up to 26 mothers and babies.

However, did they take enough care to ensure that they were communicating effectively with the mother? One midwife admitted that she probably would not have read the antenatal case notes. Had she or the others done so, they would have noted that it was documented throughout the pregnancy that the mother had very little understanding of English. If the midwives had realised that communication was challenging they could have asked for her husband to translate, even over the telephone. While this is not accepted policy, and can cause difficulties (Gill et al, 2011) it is not an unusual practice. An alternative would have been to use a professional telephone-based translation service (the ‘language line’), which was also available. The judge concluded:

‘The sad reality is that Mrs Rajatheepan did not, in fact, ever get any instruction on how to feed properly, still less did she receive any instruction on what to look out for and what to do if feeding was unsuccessful.’ (Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust, 2018 at paragraph 100)

With reference to the midwife who conducted the discharge examination, the judge continued:

‘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.’(Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust, 2018 at paragraph 103)