Poor communication can lead to catastrophic injury – how can you be sure that your patient has understood ?

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Poor communication can lead to catastrophic injury – how can you be sure that your patient has understood?

Published 16 May 2018

The recent decision in Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust is an unusual one for clinical negligence claims. It did not focus on expert evidence, but instead on the factual issues. The crucial issues revolved around the communication with and consequent understanding of a new mother who spoke very little English. Sadly, a failure to ensure that the mother had properly understood how to care for her baby led to catastrophic injury. 

The Facts

The Claimant was born by caesarean section on 16 July 2009 and was discharged two days later, on 18 July 2009. The following day he was referred back to hospital by a community midwife who, having visited the family home, found him to be pale and lethargic. It transpired that the Claimant was in a hypoglycaemic state and as a result he sadly suffered catastrophic brain damage.

The Claimant's parents are from Sri Lanka and his mother moved to the UK in 2008. It was the Claimant's case that, by the time of his birth, his mother spoke and understood very little English.

The crux of the case

HHJ McKenna had to decide whether it was negligent to discharge the Claimant home with his mother on 18 July 2009. It is clear that he considered the crux of this issue was whether Mrs Rajatheepan was able to effectively communicate with the midwives who cared for her and her son that day. He stated that the heart of the Claimant's case was "Mrs Rajatheepan's lack of understanding of and ability to communicate in English". It was agreed by the expert midwives that if she had in fact been unable to communicate effectively with the midwives it was a breach of duty to discharge her home, and it was agreed by the expert endocrinologists that if the Claimant had not been discharged home his brain injury would have been avoided. The case therefore turned on the evidence in the medical records and the evidence given by factual witnesses at the trial.

The evidence

HHJ McKenna heard evidence from a substantial number of witnesses: six on behalf of the Claimant, and fourteen on behalf of the Defendant. The Claimant's witnesses were his parents, some family friends and his GP, while the Defendant's witnesses were generally midwifery and other hospital staff who had contact with the Claimant and his mother during her pregnancy and up to the day he was discharged.

Mrs Rajatheepan's evidence was that at the time of the discharge on 18 July 2009 the Claimant was crying, she had been unable to breastfeed him, and that, despite her efforts, she was not able to communicate her concerns in relation to these issues to the midwives because of her lack of English. She additionally gave evidence that none of the midwives sat down with her and explained how to breastfeed or what to do if she was unable to do so. The other witnesses who were called on behalf of the Claimant generally supported her evidence.

None of the Defendant's witnesses could recall the events in question, which took place about nine years before the trial, and therefore their evidence was principally based on their usual practice and the medical records. The gist of their evidence was that they probably considered Mrs Rajatheepan's understanding of English to perhaps be somewhat better than was alleged in the claim, and that the lack of recorded concern as to her understanding indicates that they must have felt that they were able to communicate with her. One of the midwives who was most closely involved in the discharge gave evidence that, in her experience, it is normal for newborn babies to cry a lot (suggesting that she would not have been concerned if the Claimant had been crying a lot), and that she would not have allowed the Claimant to go home if she thought that the Claimant had not been feeding well.

The Judge's Decision

HHJ McKenna essentially accepted all of the Claimant's evidence, and found for the Claimant accordingly. An important factor in his decision-making was that there was evidence elsewhere in Mrs Rajatheepan's medical records of various clinicians at other times expressing concern as to her ability to understand English. He found the Claimant's parents to be credible witnesses and he accepted their account of the circumstances of the discharge, particularly their evidence that the midwives had not paid sufficient attention to their concern in relation to the Claimant's crying and the fact that he was not feeding well.

The impact

This case highlights the difficulties that medical professional can encounter when dealing with a claim that relates to events in the quite distant past.  Whereas the midwives could not put forward definitive accounts based on clear recollection of what happened, the events in question were understandably of much greater significance (and therefore were much more memorable) to the Claimant's parents. The judge was perhaps also influenced in his decision by the fact the midwives acknowledged that they did have a telephone "language line" service in the hospital that could have been used, even if Mrs Rajatheepan's English was somewhat better than minimal.

This case emphasises the need to keep clear and accurate records and in particular references to the level of understanding of patients when their levels of communication are below average. We have a team of experts in clinical negligence who can advise and support you through issues with medical records and patient communication. For more information please contact Ciaran Claffey at cclaffey@dacbeachcroft.com.


Matthew McGrath

Matthew McGrath


+44 (0)1962 705 548

Ciaran Claffey

Ciaran Claffey


+44 (0)1962 70 5502

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