The claimant was a midwife. Her patient had just given birth by an emergency Caesarean section with a general anaesthetic. They were in the recovery room with a consultant anaesthetist. The patient showed signs of confusion and aggression. She swung her legs over the bed at one point and said: “I need to pee” and punched at the midwife. She was told she had a catheter and did not need to go to the toilet and calmed down.

For a few minutes, the patient again seemed agitated and then she thrashed out again, kicking the claimant and then dragging her on to the bed. The claimant’s back was hurt and her hips struck the bed. Three members of staff then came to help. They fitted cot sides to the bed to keep the patient in bed and sedated her.

The legal issues were:

Should there also have been two trained recovery nurses present at all times?

Guidelines by the Association of Anaesthetists said so, in addition to a midwife and consultant. The defendant argued that was for the benefit of patients, not the safety of staff.

The Court of Appeal said that trained recovery nurses would probably identify and deal with post-anaesthetic confusion more easily than a midwife who was there for the baby and to use her obstetric skills for the mother and was relatively untrained in anaesthetic matters. So, the guideline would assist the safety of staff dealing with a patient in difficulty too.

Nevertheless, they felt bound by the finding of the Judge at first instance that trained staff were readily to hand in the next-door theatre and that lack of staffing in isolation did not cause the accident.

Should there have been cot sides fitted on the bed at any time before the accident?

The court heard evidence from two expert anaesthetists. They said cot sides need not be fitted at all times. All they required was that cot sides were readily available when required. The cot sides were in the room next door.

The Court of Appeal thought, as common sense, it would be better to have them on the bed, in down position if necessary, to be raised immediately when required, to keep the patient in bed. However, they found the Judge at first instance could accept the experts’ opinions that this system was safe, again in isolation.

What they could not accept is that, with only two staff present, it was acceptable to have no cot sides there. The claimant could not leave the room to fetch cot sides with the patient in difficulty. So, the crux of the matter was why the cot sides and staff had not been summonsed in the 4-5 minutes since the first episode of agitation and who was responsible for this failure to summon help.

Who should take decisions?

The Judge at first instance accepted the defendant’s argument that the midwife was capable of assessing the risks for herself. He found she was just as capable as the consultant who had also decided that no assistance was necessary.

The Court of Appeal was not having that. She was not trained to spot signs of post general anaesthetic confusion. She had dealt only with epidurals (local anaesthetics). He was a trained consultant anaesthetist. He had seen the patient punch twice at the claimant. At that stage, the consultant should have called for more staff and cot sides.

The Judge at first instance had said that, even with more staff and cot sides in place, the actual second assault would not have been prevented.

The Court of Appeal said it was unlikely the claimant would have had to deal with the second situation in the same way with more staff and cot sides and the danger of being injured would have been greatly reduced, if not removed.

Judgment for the claimant.

Rhodes Hampton -v- Worthing & Southlands NHS Trust [2007] EWCA Civ 1202