OUTER HOUSE, COURT OF SESSION [2014] CSOH 9
A273/08	OPINION OF LORD KINCLAVEN in causa JM as legal representative of RM (AP) Pursuer; against HIGHLAND HEALTH BOARD Defenders ­­­­­­­­­­­­­­­­­________________

Pursuer: Gale QC; Heaney; Drummond Miller LLP

Defenders: Stephenson QC; Devaney; Central Legal Office

23 January 2014

Introduction and Overview
[1] This is an action for damages. The pursuer ("JM") alleges that her daughter ("RM") suffered catastrophic injury around the time of her birth, on 2 June 1999, as a consequence of fault and negligence on the part of certain members of staff at Raigmore Hospital, for whose actions the defenders are liable.

[2] The case came before me by way of proof before answer.

[3] Mr Gale QC and Mr Heaney appeared for the pursuer. Mr Gale submitted that I should sustain the pursuer's first plea-in-law and repel the defenders' second and third pleas and allow a proof on quantum of damages.

[4] Mr Stephenson QC and Ms Devaney appeared for the defenders. Mr Stephenson sought decree of absolvitor. The defenders denied liability and contended that the pursuer's averments insofar as material were unfounded in fact. RM did not suffer any loss, injury and damage as a consequence of fault and negligence for which the defenders are responsible.

[5] Having considered the whole evidence, in this most anxious proof, I have decided that the pursuer has failed to prove her case and that the defenders are entitled to absolvitor.

[6] The defenders' submissions prevail - for the reasons mentioned below.

[7] I would outline the background and my reasons as follows.

The Background

[8] The pursuer, JM, is the mother and legal representative of RM who resides with her. RM was born on 2 June 1999 at Raigmore Hospital, Inverness. It is averred that RM suffers from a form of cerebral palsy.

[9] The defenders are Highland Health Board. They have responsibility for Raigmore Hospital, Inverness and for the actions and omissions of staff employed at said hospital at the material time. This Court has jurisdiction.

[10] The pursuer seeks damages of £10.5 million with interest and expenses.

[11] The parties agreed, in terms of a Joint Minute (No 20 of process), that the proof on liability and on causation of RM's cerebral palsy should take place separately from any proof on quantum. Without prejudice to that generality, the parties had also agreed:

(1) That the nature and extent of the brain injury suffered by RM in utero or shortly after her birth, how it was caused, and whether and if so to what extent it was caused by fault on the part of the defenders' doctors and midwives; were to be dealt with at the proof on liability and causation; and

(2) That the effect of the said brain injury on RM's cognitive and physical functioning and the impact thereof on her life (including her life expectancy) was to be held over for any proof on quantum.

[12] On 8 October 2012 the Court, on joint motion, allowed the proof before answer to be restricted to liability and causation in terms of that joint minute and Rule of Court 36.1.

The Pleadings

[13] I do not propose to rehearse the contents of the closed record (no 21 of process) as amended 15 October 2012. The parties are very familiar with the pleadings. I refer to them for their full terms.

[14] Suffice it so say that, for present purposes, the pursuer's averments of fact are set out in article 2, the pursuers' averments relating to events after delivery can be found in article 3 and the allegations of negligence are in article 4.

[15] The defender's responses are in answers 2, 3 and 4.

[16] The pursuer's averments of loss are set out in article 5 of condescendence. The pursuer avers, inter alia, that RM has severe impairments in cognition and language as a direct result of injury sustained to her brain. She has been diagnosed as having cerebral palsy spastic quadriplegia with dystonic athetosis. It is admitted that RM is wholly dependant and requires constant care.

Witnesses for the Pursuer

[17] There were 13 witnesses for the pursuer, namely:

1. JM, the pursuer - RM's mother;

2. AM (pursuer's witness No 2) - RM's father who was present in the delivery room;

3. Midwife KM (witness No 4) - who was the midwife caring for the pursuer prior to approximately 22.00 hours;

4. Midwife KMACP (witness No 3) - who was the midwife caring for the pursuer after approximately 22.00 hours;

5. Sister CR (witness No 5) - who was the midwife sister in charge of the labour ward after approximately 22.00 hours;

6. Dr AS (witness No 15) - the Obstetric Registrar alleged to be negligent;

7. Dr RA (witness No 12) - the Registrar who attended after delivery;

8. Dr MH (witness No 16) - the Consultant Obstetrician on call,

9. Dr GF (witness No 13) - the Consultant Paediatrician who attended after delivery;

10. Mrs Jean McConville, (witness No 19) - midwifery expert witness for the pursuer;

11. Professor Tim Draycott, (witness No 21) - Consultant Obstetrician and expert witness for the pursuer;

12. Dr Hilary MacPherson, (witness No 22) - Consultant Obstetrician and Gynaecologist and expert witness for the pursuer; and

13. Prof Benjamin Stenson, (witness No 23) - Consultant Neonatologist and expert witness for the pursuer.

[18] The credibility of RM's parents was not in doubt.

Witnesses for the Defender

[19] There were 4 witnesses for the defenders, namely:

1. S.M.M., (defence witness No 10) - a neonatology nurse who spoke to entries made in RM's records when she was in the Special Care Baby Unit (SCBU);

2. Professor James Walker, (defence witness No 15) - Professor of Obstetrics & Gynaecology and expert witness for the defenders;

3. Dr Julia Sanders, (defence witness No 12) - Consultant Midwife & Senior Project Manager and expert witness for the defenders; and

4. Dr Jonathan Coutts, (defence witness No 16) - Consultant Neonatologist, respiratory paediatrician and expert witness for the defenders.

Joint Minute of Agreement

[20] There was an extensive joint minute of agreement (no 25 of process) which I can refer to for its whole terms brevitatis causa.

Productions

[21] The productions for the pursuer were numbered 6/1 to 6/88 of process. The productions for the defender were numbered 7/1 to 7/48 of process.

Joint List of Authorities
[22] I was referred to the following joint list of authorities:

1. Dineley v Lothian Health Board [2007] CSOH 154;

2. NM v Lanarkshire Health Board [2013] CSIH 3 particularly at paragraphs [56] to [61] and [64] to [66];

3. Skelton v Lewisham and North Southwark Health Authority [1998] Lloyd 's LR Medical 324;

4. Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134;

5. Bolitho v City and Hackney Health Authority [1998] AC 232;

6. D's Curator Bonis v Lothian Health Board 2010 CSOH 61, 2010 SLT 725;

7. Davie v Magistrates of Edinburgh 1953 SC 34;

8. Dingley v The Chief Constable, Strathclyde Police 2000 SC (HL) 77;

9. Dingley v The Chief Constable, Strathclyde Police 1998 SC 548 (IH);

10. Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176;

11. Honisz v Lothian Health Board [2006] CSOH 24, 2008 SC 235;

12. Hunter v Hanley 1955 SC 200;

13. Ide v ATB Sales Ltd [2008] EWCA Civ 424, [2008] PIQR P13 P251 at paragraphs 4 and 6;

14. Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (CA);

15. Loveday v Renton [1989] 1 Med LR 117;

16. Montgomery (M's Guardian) v Lanarkshire Health Board [2010] CSOH 104, particularly at paragraphs 1 to 5, 9, 10, 116, 117, 178, 190, 194 to 198, and 206;

17. Mackinnon v Miller 1909 SC 373 (IH);

18. Mallett v McMonagle [1970] AC 166 (HL);

19. Maynard v West Midlands Regional Authority [1984] 1WLR 634 (HL);

20. McGlinchey v General Motors UK Limited [2012] CSIH 91;

21. McConnell v Ayrshire and Arran Health Board 2001 Rep LR 85 (OH);

22. Morton v West Lothian Council 2006 Rep LR 7 (OH);

23. Jones v Great Western Railway Company (1931) 144 LT Rep 194 (HL);

24. S-B, Re (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1AC 678;

25. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 (HL);

26. The Popi M [1985] 1WLR 948 (HL);

27. Toremar v CGU Bonus Limited [2009] CSOH 78; and

28. Wilsher v Essex Area Health Authority Health Authority [1987] QB 730 (CA).

[23] I do not propose to quote extensively from those cases. The relevant passages were not in dispute and they have been highlighted by parties in their respective written submissions. See, for example, the pursuer's written submissions at paragraphs 8 to 40 and the defenders' principal submissions at paragraphs 2.1 to 2.6. I agree with the pursuer was that the evidence should be considered as a whole and that circumstantial evidence can have compelling force. The assessment of the evidence is a matter for me.

[24] In relation to liability, the test in relation to "the standard of care" is to be found in the well-known case of Hunter v Hanley test (case numbered 12 above which Mr Gale deals with in paragraphs 34 to 40 of his written submissions). In Hunter v Hanley Lord President Clyde said inter alia:

"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances ... But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

The Lord President also said:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."

[25] There was, however, a difference of opinion between Mr Gale and Mr Stephenson as to whether this was a "deviation from normal practice case" and whether the approach adopted in the cases of Bolitho and Honisz (cases numbered 5 and 11 above) fell to be applied. The disputed question of law can be focussed by reference to paragraph 38 of the pursuer's written submissions which was as follows:

"This case is not, in its essentials, a deviation from normal practice case. Normal practices come up obliquely in relation to CTG monitoring in theatre and the speed with which Caesarean section procedures could and ought to have been performed. But the pursuer's position is that these are both matters of fact to be judged by what could and ought to have been done in the particular hospital in the exercise of ordinary skill and care. This is not a case of a kind where the law allows professionals, who know what they ought to know about the patient, to hold a range of views without being held to be negligent. Insofar as decisions, for instance not to continue CTG monitoring, were made as the result of practice the Court is entitled to examine the practice and override it if the Court can find no proper basis for the practice: [Bolitho v City and Hackney Health Authority [1998] AC 232]."

As appears from the written submissions, Mr Stephenson disagreed with the pursuer's approach. He submitted that this was an alleged "deviation from normal practice case" and that the expert evidence in relation to liability fell to be tested by reference to the criteria in Bolitho. The law was summarised in the dictum of Lord Hodge in Honisz, at page 247, paragraphs [38] to [40] (which is set out in full and referred to in paragraphs 2.3 and 2.4 of the defender's principal submissions). I agree with the defenders' approach. For completeness, however, I shall give an indication of my views based on the evidence using both those different approaches. See below at paragraphs [158] and [159].

[26] In relation to causation, I should add that during the defenders' submissions in relation to the case of McGlinchey (case numbered 20 above) Mr Gale indicated that he did not disagree with the proposition that it is always open to a court, even after prolonged inquiry with a mass of expert evidence, to conclude that an essential factor, even on a balance of probabilities, remains in doubt - with the consequence that a pursuer fails to discharge the burden of proof. There was also passing reference to Main v Andrew Wormald 1988 SLT 141.

[27] In relation to onus and standard of proof, my attention was also drawn to what Lord Reid said in McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 at page 83, namely:

"In the end when all the evidence has been brought out, it rarely matters where the onus originally lay: the question is which way the balance of probabilities has come to rest."

The Proof and Submissions

[28] The proof lasted over 6 weeks (26 court days).

[29] Parties subsequently exchanged detailed written submissions which are available separately. They were lodged as Numbers 26 and 27 of Process (254 pages). A composite version of the written submissions of counsel (in Word format) is no.28 of process. I do not propose to set out those written submissions again in the body of this opinion. Parties are familiar with them. I shall take them as read.

[30] Counsel also addressed me orally (over a period of 3 days). I have taken into account all the submissions made.

The Structure of the Pursuer's Submissions

[31] Mr Gale outlined the pursuer's position under reference to his written submissions which I can refer to for their full terms and incorporate brevitatis causa.

[32] In essence, Mr Gale submitted that RM suffered an entirely preventable catastrophic brain injury. RM's trachea was obstructed with meconium inhaled during the later stages of labour. Had those attending to RM's mother, JM, had the ordinary skills to be expected of the members of their professions, and had they taken ordinary care, RM would have been delivered earlier, would not have inhaled the meconium deep into her trachea, and would not have suffered catastrophic brain injury. Mr Gale asked the Court so to hold.

[33] Mr Gale suggested that, at a high level of generality, the questions of fact to be answered by the court were:

1. Was RM asphyxiated because her trachea was blocked with inhaled meconium?

2. Was the meconium drawn down into her trachea because RM gasped in the final few minutes before she was delivered?

3. By when ought those responsible for managing the labour, in the exercise of ordinary skill, taking ordinary care, have delivered RM?

[34] As appears more fully from the detailed written submission (mentioned above), Mr Gale addressed the issues under the following headings:

Para 1 RM suffered an entirely preventable catastrophic brain injury.

3 The questions for the court.

8 The standard and burden of proof.

11 The evidence should be considered and analysed as a whole.

15 The compelling force of circumstantial evidence.

17 The assessment of witnesses.

18A The status of medical records in fact finding.

26 Skilled witnesses.

30 Evaluating the evidence of skilled witnesses.

31 Fact finding is a matter of balance of probabilities and not scientific proof.

34 The standard of care.

44 The pursuer and her husband travel to Raigmore and the pursuer was assessed on admission.

48 The pursuer spent the day in Ward 10 and the observations were unremarkable.

52 The pursuer was examined by DR AS at 18.10 hours and the continuous CTG was started.

54 The nature and seriousness of the risk posed to the pursuer's unborn baby.

59 Failure to take decisive action to control the pursuer's high blood pressure.

66 The pursuer is examined at 21.40.

67 Assessment of the CTG trace.

72 The purpose of continuous CTG monitoring.

77 The CTG began to be abnormal from 21.45 hours.

83 At around 22.00 hours "things were stacking up against vaginal delivery":

87 Tight introitus and position of the baby;

88 Lack of liquor; and

92 Progress of the labour.

93 What ought the staff to have known at 22.00 - 23.00 hours.

95 The events of the labour after 22.00 hours.

96 The administration of the epidural.

100 The CTG at 22.56 to 01.12 hours.

104 The reading of the trace by Midwife KMACP.

123 Midwife KMACP's duty.

125 Sister CR and the CTG screen at the nursing station.

129 The contrast between Midwife KM's scientific approach and that of Midwife KMACP.

137 Dr AS's duty to react to the trace.

139 Sister CR increases the syntocinon.

140 Dr AS's examination at 00.35 hours.

142 The misclassification of the trace is passed on to Dr MH.

151 Dr AS's failure robbed Dr MH of the opportunity to make a fully informed decision.

174 The failure to look at the trace after 00.35 hours is inexcusable.

180 What would have happened if the last section of the trace had been used.

185 Negligent failure to maintain continuous CTG after 01.15 hours.

190 Inadequate auscultation after 01.15 hours.

194 What happened during "the dark period" - from before 01.00 hours?

199 Decision to incision - why so long?

216 Dr AS's "self-serving" note (No 7/9 of Process page 105).

223 RM's birth and her appearance at birth.

232 The resuscitation.

238 Dr GF saves RM's life.

241 What breathing was seen from RM before she was resuscitated?

252 Meconium.

260 Cause and causation are questions of fact for the judge and not to be determined by the opinion of experts.

262 Dr GF's view.

277 What happened to the meconium plug?

282 There is no evidence to support the bronchogenic cyst theory:

285 There was no antenatal sign of a cyst;

287 Where is the trapped fluid?

290 Appearance of the lungs on x-ray;

293 Where did the cyst go?

295 The post-resuscitation secretions are a red-herring; and

301 The popping sound.

305 Meconium Aspiration Syndrome.

309 Causation.

321 Delivery a few minutes earlier would have saved RM from injury; and

323 Summary on fault.

[35] The pursuer's summary on fault was in the following terms:

"323 What seems to have happened is that lip service was paid to the status of the pregnancy as high-risk. A risk that, not so long ago, was considered to be so great as to have all deliveries of iddb mothers by elective caesarean section.

324 Most babies are delivered without mishap. The tendency for midwives and obstetricians, that they must guard against, is to think that things usually work out fine so they will on this occasion.

325 The observation that about one-third of labours are, for one reason or another, classified as high-risk does not make that designation meaningless. [MacPherson X5A]. On the contrary, that there are so few mishaps probably shows that in most cases the marker is taken seriously and acted upon.

326 Dr MacPherson's overall impression was that the pursuer's labour was not treated as high-risk. She said that "the index of concern was not appropriate and the midwife, registrar and consultant should have been more concerned from the start." [MacPherson C13M]

327 The pursuer's case is that delivery two or three minutes earlier would have saved RM from injury.

328 There were four key moments where had the staff not been negligent the day could have been saved.

(1) From just after 23:00 hours Midwife KMACP, had she been exercising ordinary skill and taking ordinary care, ought, given the already suspicious trace and the other risks, to have brought Dr AS's attention to the CTG trace. And Dr AS, had she been exercising ordinary skill and taking ordinary care, would have spoken to Dr MH, accurately described the trace and clinical situation, and there would then have been decision to go to caesarean section. RM would have been delivered long before she was.

(2) At 00:35 hours Dr AS, had she been exercising ordinary skill and taking ordinary care, would have given Dr MH an accurate description of the clinical situation and trace. Had she done so, Dr MH would have instructed her to expedite a caesarean section. RM would then have been delivered early enough not to be injured.

(3) At 01:15 hours, the midwives attending, had they been exercising ordinary skill and taking ordinary care, would have brought the last section of CTG to Dr AS's attention. Had they done so steps would have been taken to speed up the process of moving to theatre and delivery and RM would have been born early enough not to be injured.

(4) After 01:15 hours, the court should infer that RM's condition in utero got progressively worse. Had there been continuous CTG as, in the exercise of reasonable care, there ought to have been, that would have been seen by midwives and obstetrician of ordinary skill exercising ordinary care and delivery would have been expedited. RM would have been born at least two or three minutes before she was. The same would have been the case had there been frequent, competent auscultation.

329 This case is exceptional. To find in favour of the pursuer would not be to push the boundaries. The mistakes were plain and simple. Overall, there was a lack of ordinary skill in reading the CTG trace, which was never recognised to be as much as suspicious, and the other risk factors were ignored. The day could have been saved at 01:15 hours but, because the CTG trace was ignored and CTG discontinued, it was not. And if there had been CTG or competent auscultation after 01:15 hours RM could have been delivered sooner."

The pursuer's motion

[36] In the whole circumstances, Mr Gale moved the court to sustain the pursuer's first plea-in-law and repel the defenders' second and third pleas and allow a proof on quantum.

The Structure of the Defenders' Submissions

[37] Mr Stephenson outlined the defenders' position under reference to two sets of detailed written submissions (primary submissions and supplementary submissions) which I also refer to for their full terms and incorporate brevitatis causa.

The defenders' Primary Submissions

[38] As appears more fully from the written submissions (mentioned above) Mr Stephenson outlined the defender's primary submissions under the following headings:

1. Introduction.

1.1 Introduction.

1.2 Joint Minute restricting proof.

1.4 Joint Minute of Admissions.

1.5 The pursuer's case on Record: Fault.

1.11 The pursuer's case on Record: Causation.

1.12 The orders sought by the defenders.

1.14 Summary of the propositions to be argued for.

1.15 Objections to admission of evidence outstanding and still insisted upon.

2. The Applicable Law.

2.1 Fault - Hunter v Hanley.

2.3 Fault - Expert Evidence - Honisz.

2.5 Causation.

3. The Evidence: General.

3.1 Litigating more than 13 years after the event.

3.7 Credibility and reliability - the factual witnesses.

3.18 The cases of fault put in evidence to those accused of negligence.

4. The Facts: CTGs.

4.1 Foetal heart monitoring equipment.

4.7 Interpretation and limitation of CTG monitoring.

4.17 CTG interpretation in 1999.

4.32 Expert evidence as to how CTG's were interpreted in 1999.

4.37 Expert evidence as to interpretation of CTG traces.

5. The Pursuer's pregnancy and ante-natal care.

5.1 Uncontroversial matters.

5.2 Insulin dependent diabetes (IDD) with hypertension; consequences for care; "high risk".

5.3 The context in which "high risk" is assessed; complications that might arise; exclusion of most of them; comparative risk of prima gravid assisted delivery in theatre.

5.5 31 May 1999 to attendance at Raigmore early hours of 1 June 1999.

5.6 Admission and assessment in Ward 10 prior to transfer to Labour Suite.

5.10 System of working Maternity Unit / personnel on duty.

5.15 The pursuer's care in Labour Suite by Midwife KM to about shift handover at 22.00 hours.

5.25 CTG prior to 22.00 hours.

5.26 Change of care to Midwife KMACP.

5.33 Epidural anaesthesia.

5.42 Foetal Heart rate 23.07 to about 00.30 hours - Sister CR.

5.44 CTG after 23.07 to 00.35 hours.

5.50 Had Dr AS been called prior to 00.35 hours.

5.53 DR AS's re-assessment at 00.35 hours.

5.62 Dr AS's classification of the CTG.

5.66 Decision to proceed to caesarean section.

5.71 Timing of decision to proceed to caesarean section.

5.73 1999 categorisation of caesarean sections - response times.

5.75 Anaesthesia for caesarean section.

5.78 Administration of the pursuer's top-up epidural.

5.81 Events in the Labour Room between decision and leaving for theatre at 01.15 hours.

5.84 CTG: 01.00 to 01.15 hours (transfer to theatre).

5.90 By time of disconnection what significance would have been given to the decelerations had they been reported to Dr AS?

5.97 Foetal Heart Rate monitoring after CTG switched off.

5.104 Transfer to theatre.

5.109 Delivery of RM.

5.112 RM's condition at birth.

5.117 Resuscitation - Dr BA.

5.121 Resuscitation - Dr RA.

5.127 Resuscitation - Dr GF.

5.135 Cause of the blockage - Dr GF's view.

5.140 Admission to Special Care baby Unit (SCBU).

5.143 APGAR scores.

5.144 Evidence of brain damage.

6. Expert Evidence on Fault and Discussion.

6.1 The CTG trace - general.

6.4 The CTG - 21.45 hours until the epidural sited.

6.7 The CTG - 22.56 to 23.30 hours.

6.8 The CTG - 23.30 to 03.35 hours.

6.9 The CTG - 00.35 to 01.01 hours.

6.16 Absence of liquor.

6.22 The Midwives: duty to call for medical review between 23.00 and 00.35 hours.

6.37 The Midwives: use of syntocinon - 23.00 to 00.35 hours.

6.44 Dr AS: Failure to inform Dr MH of all relevant factors.

6.49 Dr AS - Decision to go to caesarean section - delivery intervals in 1999.

6.51 Dr AS: Decision to go to caesarean section - duty to deliver within 30 minutes of instruction to proceed.

6.57 Dr AS: Duty to continuously monitor prior to delivery.

6.63 Monitoring of the foetal heart after 01.12 hours.

6.68 Conclusion: The pursuer has not established any of the breaches of duty alleged on Record. She has failed to prove negligence.

7. Causation.

7.1 Would the delivery of RM have been expedited?

7.2 Had the Midwives called for medical assistance at any point between 23.00 and 00.35 hours.

7.7 Had Dr MH been advised of all relevant factors by Dr AS.

7.10 Had the last section of the trace been reported.

7.13 Had there been continued monitoring or more auscultation at five minute intervals.

7.24 RM's condition at birth.

7.32 Nature and extent of brain injury suffered by RM.

7.34 Cause of acute asphyxia after birth - meconium plug.

7.35 Presence of meconium at delivery.

7.38 Chronic partial hypoxia.

7.40 Agonal gasping.

7.46 Type of meconium "plug".

7.49 Anatomical considerations.

7.51 Meconium is not a recognised cause of total occlusion of airway.

7.54 Where did any meconium plug go?

7.59 Bronchogenic cyst.

7.66 Other possibilities.

7.69 Conclusion - in relation to causation.

The Defenders' Supplementary Submissions - on their Principal Submissions.

[39] In the defender's supplementary submissions Mr Stephenson highlighted the following matters concerning the defenders' principal submissions:

(a) A "Table of Contents" had been prepared.

(b) The defenders objected to the admissibility of evidence.

The defenders maintained their objection to the admissibility of evidence led by the pursuer from Professor Draycott, under reservation, to the effect that there had been negligence at 22.00 hours. There was no record for such a case. In any event, the pursuer did not insist on such a case.

(c) The persons alleged to have been negligent.

Mr Stephenson suggested that it appeared from Mr Gale's submissions that the pursuer no longer sought any finding of fault against Sister CR - but that was contradicted by Mr Gale. I propose to deal with the allegations against Sister CR on their merits.

(d) The syntocinon case.

The syntocinon case was not pressed in the pursuer's submissions nor in the oral submissions.

(e) The absence of any case against midwifery staff 00.35 to 01.12 hours.

There is no case made against midwives on Record in respect of the period 00.35 to 01.12 hours.

(f) The law: fault.

This is a Bolitho / Honisz case according to the defenders.

(g) The law: causation.

The pursuer requires to establish her explanation as the probable cause. There are cases in which there is simply a failure of proof.

(h) Litigating 13 years after the index events.

It was unreasonable and unfair to attack the competency of Midwife KMACP and the allegedly defensive manner of Dr AS on the basis of their inability to recall the detailed reasoning underlying their acts and omissions 13 years previously.

(i) General credibility and reliability of factual witnesses.

(j) What, in respect of the cases of fault, was put to those under attack?

(k) The CTG traces.

(l) Management of the pursuer's labour including delivery and resuscitation.

(m) The expert evidence on fault.

The basic contention for the defenders was that there is expert support for all of the criticised actions and omissions. There was no real attempt by the pursuer to show that the supporting expert opinion was irrational, so as to permit the court to disregard it.

(n) Causation.

(o) The defenders' propositions.

(p) The defenders' conclusions on causation.

The Defenders' Supplementary Submissions - on the Pursuer's Submissions.

[40] In the defender's supplementary submissions Mr Stephenson also highlighted the following matters concerning the pursuer's submissions:

(i) This is a "normal practice" or "standard practice" case - according to the defenders. It involves questions of clinical judgment and matters of practice.

(ii) Against what background of knowledge and practice does interpretation of a CTG in June 1999 require to be seen?

(iii) The pursuer's representations as to the evidence were disputed by the defenders in various specified ways (which I do not propose to set out again in detail). For example:

(a) paragraphs 83 to 92 of the pursuer's submission were disputed.

(b) paragraph 153 was disputed.

(c) paragraph 159 was disputed.

(d) paragraphs 164 and 174 to 179 were disputed. There was no case of fault on record in relation to the period between 00.50 hours and 0.15.

(e) The factual evidence does not justify a conclusion that the trace was not observed.

(f) In any event, the expert evidence from Dr Sanders and Professor Walker was that the delivery plan did not require to be altered and thus exonerates the midwifes.

(g) Paragraphs 180 to 184 of the pursuer's submission were disputed.

(h) Could the caesarean section have been expedited?

(i) RM's condition at birth, paragraph 225, was disputed.

(j) Paragraph 299 was disputed.

(k) It follows from paragraph 309 of the pursuer's submission that if RM was not at the point of agonal gasping at birth then the pursuer's case on causation fails.

(l) The paper No 7/44 of Process refers to the child being declared dead at 38 minutes.

(m) In relation to paragraph 319, no reliance can be placed on No 6/80 of process which was neither spoken to in evidence nor agreed.

(iv) The defenders also objected to certain specified comments made in the pursuer's submissions which suggested witnesses and others were acting in bad faith or in a self-serving manner. There was no basis for those suggestions. In any event they were not put to witnesses who were given no opportunity to comment on them. The identified comments should be disregarded. In addition, contrary to the pursuer's oral submissions the defenders only had some four months to investigate the pursuer's alleged causal mechanism.

The defenders' motion

[41] In the whole circumstances, Mr Stephenson invited me to repel the first plea-in-law for the pursuer and to sustain the second, third and fourth pleas-in-law for the defenders and to grant decree of absolvitor.

Discussion

[42] I have given anxious consideration to the evidence, the pleadings and all the written and oral submissions.

[43] Having done so, the most effective way to communicate my decisions in relation to the numerous contentious issues is by focussing on the findings which I have made based upon the evidence.

[44] I do not propose to rehearse again the detailed submissions of parties which have already been reduced to writing (and are known to parties). They have been taken into account can be referred to for their full terms brevitatis causa.

[45] Instead, I propose to take parties written submissions as read - and to deal with the main issues, and my findings in relation thereto, under three main headings, namely:

(1) the chronology of labour;

(2) the pursuer's allegations of negligence; and

(3) questions of causation.

That way, I hope, parties can obtain a reasonably clear and concise indication of my decisions and my reasons.

[46] Averments which have been made on record but which have not been established to my satisfaction are not included in my findings.

(1) The chronology of labour

[47] On the evidence, and having regard to everything said by counsel for both parties, I find that the following facts have been admitted or proved in relation to the chronology of labour.

[48] In September 1998 the pursuer was confirmed to be pregnant. The pursuer was at that time a 33 year old primigravida who had insulin dependent diabetes mellitus (IDDM). She had had diabetes since age 12. She had a history of raised blood pressure. There was no other significant medical or obstetric history.

[49] The pursuer was booked for delivery at Raigmore Hospital in Inverness under the care of Dr L. The expected date of delivery was 18 June, 1999.

[50] The pregnancy proceeded uneventfully. The pursuer had two ante natal admissions during the pregnancy. The first was on 21 January, 1999 when she was admitted for stabilisation of her diabetes and the second was on 22 February, 1999 with abdominal tightenings, suprapubic pain and loin discomfort.

[51] The pursuer was admitted to Raigmore Hospital on 1 June, 1999 at 04.20. This admission was via the Belford Hospital in Fort William where she had presented on 31 May, 1999 with contractions that had started at 20.00 hours that day. The pursuer's blood pressure was raised and there was slight oedema of the ankles and fingers. The foetus was cephalic presentation i.e. head down with the head 2/5 palpable. Contractions were 4:10 i.e. four contractions every ten minutes and described as moderate. The foetal heart rate was 134 - 145 bpm. The foetal heart rate baseline was in said range. Vaginal examination revealed the cervix was fully effaced and the os was one finger tip dilated. The vertex was 2 cm above the ischial spines. The membranes had not ruptured.

[52] An admission CTG was commenced at 04.28 and this ran until 05.06. This CTG demonstrates a baseline rate of 140 bpm with good baseline variability. This is a normal reactive trace.

[53] At 05.15 on 1 June, 1999 the pursuer was transferred to Ward 10.

[54] Medical review at 07.00 hours indicated that the CTG was normal.

[55] The pursuer was re-examined at 08.45 and the foetal heart rate was said to be satisfactory.

[56] A further CTG was commenced at 08.45 to 09.05. It was reported as showing a baseline of 120 - 130 bpm with accelerations to 154 bpm.

[57] At about 09.35 the CTG was re-started and continued until about 10.30.

[58] At 16.45 the contractions were said to be less painful and occurring 2/10. A clear show was documented.

[59] Re-examination at 17.00 hours revealed the cervix to be fully effaced and 4 cm dilated, with the vertex 1 cm above the ischial spines. The forewaters were felt.

The pursuer was admitted to labour ward at 18.10 and she was said to be contracting 2/10 and had moderately heavy red show.

[60] CTG was commenced at or about 18.14 on 1 June, 1999 and ran until about 01.12 on 2 June, 1999, shortly before the pursuer was transferred to theatre for caesarean section.

[61] Prior to that (the commencement of the CTG) the use of intermittent CTG monitoring was appropriate and typical of foetal monitoring offered to women at increased risk during early labour but with normal CTGs. Continuous monitoring was not indicated during that period.

[62] At commencement of the CTG trace there was a base line foetal heart rate of around 140 beats per minute with frequent accelerations and excellent base line variability. This fairly normal pattern continued throughout the trace.

[63] The pursuer was examined at 18.25 and the cervix was noted to be fully effaced and there was a thick anterior lip. No forewaters (the sac of amniotic fluid protruding into the cervix) were felt. At 18.25 Midwife KM performed a vaginal examination with the intention of performing an artificial rupture of the foetal membranes (ARM). ARM is a procedure used to release amniotic fluid from the uterus. On examination the cervix was 4 cm dilated, cephalic presentation, with the foetal head 1cm above the ischial spines. No membranes were found to be present. No amniotic fluid (also known as liquor) was produced. An attempt to apply a foetal scalp electrode was unsuccessful.

[64] At 18.30 a partogram was commenced. A partogram is a chart, normally comprising a single sheet, on which is noted various maternal and foetal signs and measurements.

[65] At approximately 18.50 the pursuer was given diamorphine. Thereafter there was a slight reduction in the reactivity of the foetal heart shown on the CTG trace. However there were still accelerations and normal base line variability.

[66] At 19.15 it is recorded that the contractions were 1:10 with moderate red show PV.

[67] At 19.45 intravenous syntocinon was started.

[68] Syntocinon was commenced at 1 ml/hr at 19.45; increased at 20.00 to 2 ml/hr; increased at 20.15 to 4 ml/hr; and at 20.30 increased to 8 ml/hr. At no time prior to 20.30 were contractions more frequent than 4:10.

[69] Syntocinon is synthetic oxytocin which causes the muscle of the uterus to contract. It is administered to women in labour to increase the frequency of uterine contractions. (It can also be used after birth to control bleeding and assist with the delivery of the placenta).

[70] The syntocinon was increased at 20.30 to 8 ml/hr.

[71] Contractions were described as 4:10 moderate to moderately strong.

[72] At 20.45 the pursuer's BP was 196/106 and 204/96. Medical staff were contacted and the pursuer was given a dose of Lisinoprol.

[73] Thereafter uterine contractions became increasingly frequent and by 21.00 were occurring every 2 minutes. The foetal heart rate remained within the normal range, being at that time around 150 bpm with good baseline variability, with accelerations and without decelerations.

[74] At around 21.30 there were a few very brief early decelerations which were not of any clinical significance. Such decelerations are typically seen in advancing labour and are usually due to foetal head compression. They are not indicative of hypoxia.

[75] At 21.40 the pursuer was re-examined by Dr AS and the cervix was 7 cm dilated. No forewaters were felt. Labetalol was given IV. The plan was to give more analgesia and re-assess in three hours.

[76] At 21.40 Dr AS performed a vaginal examination at the request of Midwife KM to check the absence of forewaters. The examination confirmed the membranes had ruptured. The foetus was in the right occipital transverse position ('ROT') and the cervix 7 cm dilated. This represented good progress in labour and Dr AS reasonably planned to re-assess in three hours.

[77] At about 21.55 the BP was 199 / 99 and diamorphine was repeated.

[78] Following a second dose of diamorphine at around 21.50 there was a further dampening of the baseline variability, but it still remained above 5 beats per minute. There were occasional early or variable decelerations which were very brief in duration. Administration of diamorphine has a typically suppressive effect on reactivity but the remaining variability in the foetal heart rate after opiate administration is reassuring. The trace generally was reassuring and reactive.

[79] The anaesthetist was present at 22.05 for an epidural.

[80] Prior to approximately 22.00 the Midwife who was caring for the pursuer was KM.

[81] After about 22.00 the Midwife caring for the pursuer was KMACP.

[82] The Midwife sister in charge of the labour ward after about 22.00 was CR.

[83] At 22.15 it is recorded that the pursuer had an urge to push. The pursuer was said at that stage to be 8 - 9 cm dilated.

[84] At 22.15 the pursuer had the urge to push with each contraction. The cervix was 8 cm dilated with a thick oedematous rim anteriorly. There was a red show ++.

[85] After siting of the epidural at about 22.30 there were a number of variable decelerations against the background of normal baseline rate and variability and the continued presence of accelerations. Most of the decelerations had a drop from baseline of less than 60 bpm and lasted less than 60 seconds. Accordingly they are classified as typical. Normal variability continued throughout and can be seen both in the baseline and within decelerations. Both variable and early decelerations are common as labour progresses. Variable decelerations are usually due to intermittent cord compression. Early decelerations are usually due to foetal head compression. Neither form of deceleration indicates serious foetal compromise.

[86] At 22.50 the anaesthetist sited the epidural.

[87] At 23.30 the syntocinon was increased to 12 mls per hour.

[88] At 00.35 the pursuer was re-assessed. It is recorded that the pursuer was contracting well on syntocinon. The cervix was 9 cm and not fully effaced. The head was still one-fifth palpable. There was caput and the cranial sutures felt widely separated.

[89] At 23.30 the pursuer was contracting 4 : 10. Sister CR increased syntocinon to 12 ml/hr (not 16 ml/hr as indicated by protocol) with the aim of achieving contractions at a rate of 5:10.

[90] From 23.40 contractions were 4:10 or 5:10.

[91] The CTG showed early decelerations but was otherwise reactive.

[92] At 00.15 Midwife KMACP felt contractions were approaching 6:10 over a five minute period. She reacted to this by turning the syntocinon down to 8 ml/hr.

[93] Throughout the period when syntocinon was used the contractions were well spaced and it was used consistently with a view to achieving contractions at a rate of 5:10 in line with local protocol.

[94] At about 00.35 the Registrar, Dr AS, noted that "CTG - has been marked earlies throughout but otherwise reactive".

[95] Under a note timed at 00.35 Dr AS noted "probably not deliverable vaginally".

[96] Dr AS reviewed the pursuer as planned commencing at about 00.35. The cervix was 9 cm dilated, which represented slow progress as compared with 8 cm dilation at 22.15. The foetal head was one fifth palpable abdominally, indicating a failure to descend despite a good rate of contractions with syntocinon. The cervix was felt as a rim around the foetal head. The foetus was in the occipital posterior position (OP), which is an unfavourable position for delivery. There was no moulding of the foetal head and the sutures were wide.

[97] At 00.40 the CTG trace demonstrated a positive response to scalp stimulation, indicating the foetus was not hypoxic.

[98] Dr AS telephoned Dr MH, the on-call consultant obstetrician and gynaecologist, from the labour ward midwifery station at about 00.50. She informed Dr MH that the patient was diabetic; of her findings on vaginal examination; and that the trace showed early decelerations. She discussed with him whether the pursuer should be allowed to labour for a further hour to see if the labour would progress. Dr MH advised caesarean section was now indicated given the diabetic status of the pursuer and the failure of labour to progress. His instruction was to perform a caesarean section.

[99] The decision to proceed to caesarean section was due to the pursuer's failure to progress in labour. The caesarean section was not undertaken because of any perception that RM had become hypoxic or otherwise compromised in utero. The caesarean section was classed as "emergency", in the sense that it was not an elective or pre-planned procedure. It was not a "crash" or "Grade 1" section (requiring delivery within 30 minutes) and there was no clinical indication for such. Normal practice at the time was for delivery within about 60 to 90 minutes of the decision to proceed to emergency caesarean section. The position had to be explained to the pursuer and her consent to caesarean section obtained. It would have taken 5 to 10 minutes to transfer the pursuer from the labour ward to theatre. A theatre team including nursing, anaesthetic and paediatric staff required to be assembled. The pursuer had to be prepared for the procedure, including shaving, draping and skin preparation. Anaesthesia was required.

[100] Throughout the period of the CTG, until discontinuation at 01.12, the material features of the trace were not such as to require early delivery, or alteration in the obstetric management.

[101] The pursuer was transferred to theatre at about 01.15.

[102] At 01.15, coinciding approximately with the transfer to theatre, Midwife CR recorded the baseline foetal heart rate was 130 - 150 with early decelerations down to 90 to 110 with quick recovery.

[103] CTG monitoring equipment was not routinely available in theatre. There was no indication to transfer CTG monitoring equipment to theatre. That would have taken time. The presence of CTG equipment in theatre can make it difficult to access the patient when they are being prepared for caesarean section. The CTG was discontinued, as was normal practice at the time, shortly before transfer to theatre and in the context of an acceptable foetal heart pattern.

[104] Following transfer intermittent foetal heart monitoring was carried on by Midwife KMACP. A handheld "Sonicaid" was used to listen to the heart whilst manually monitoring the nature of the contractions. This was in 1999 a standard practice. Midwife KMACP continued to monitor the foetal heart rate in the anaesthetic room and then in theatre until the caesarean section commenced.

[105] There was no indication to further expedite delivery. In any event discontinuation of syntocinon upon transfer to theatre would have meant a decrease in the frequency and strength of the contractions. It was reasonable to assume (bearing in mind the absence of other adverse factors and following a positive response to scalp stimulation at 00.40) that the foetal condition would improve or at least not deteriorate.

[106] There are no clinical notes between 00.35 and 01.15. Following transfer to theatre Midwife KMACP made notes in a separate continuation sheet which has become separated from the principal notes and cannot now be found. Such notes would normally have included recordings of the foetal heart, the timing of the epidural top up, the timing of "knife to skin", the time the head was delivered and the time of delivery. The recording of midwifery observations of a separate sheet is a common practice, for example, when the principal notes are required by anaesthetic, paediatric or other members of staff present in theatre.

[107] The anaesthetic record commenced at 01.30. It would have taken 20 to 30 minutes to test the epidural already in place, administer a test dose of anaesthetic agent and top up the anaesthesia with a further dose before confirming there was a satisfactory block to allow the caesarean section to proceed.

[108] The caesarean section probably commenced with "knife to skin" at about 01.57.

[109] At the time of the caesarean section, which was performed by Dr AS, the head was deeply engaged in the pelvis and the uterine excision required to be extended bilaterally.

[110] RM was delivered at 02.02 on 2 June 1999.

[111] Delivery was approximately 67 or less minutes after the decision was made by Dr MH and agreed with the pursuer, and in accordance with normal and reasonable practice.

[112] RM weighed 3.34kg. There was thick fresh meconium present at delivery.

[113] Meconium is the content of the foetal digestive tract. It is composed of materials ingested whilst in utero. Fresh meconium is viscous and sticky under explanation that texture, colour and viscosity vary depending on the age of meconium. Meconium can become "inspissated" indicating that it was hardened or thickened.

[114] The placenta was delivered. It was not subject to pathological examination.

[115] Syntocinon was switched off when the pursuer was transferred to theatre. The drip used to infuse syntocinon remained in situ.

[116] After delivery Dr AS asked that syntocinon be re-started to ensure bleeding was controlled.

[117] RM's condition at birth could not have been reasonably anticipated from the appearance of the CTG up to 01.12 and foetal monitoring thereafter.

(2) The allegations of negligence

[118] The contentions of parties in relation to the allegations of negligence are clearly set out in the respective written submissions of counsel (already mentioned above) which I refer to for their full terms brevitatis causa.

[119] I would outline the background as follows.

(a) The pursuer's position

[120] On record, the pursuer alleged that RM suffered loss injury and damage which was caused or at least materially contributed to by the fault and negligence of the members of the midwifery and obstetric staff caring for the pursuer prior to RM's birth and, in particular, KMACP, CR and Dr AS.

[121] There is no dispute that the defenders are responsible for their actions and omissions in the course of their employment at Raigmore Hospital. There is no dispute that midwifery staff had a duty to exercise the skill and care of ordinarily competent Midwives acting with ordinary skill and care.

[122] The legal principles were set out in the joint list of authorities (mentioned above).

[123] As mentioned above, I propose to indicate my views on the assumption that the pursuer's approach (in paragraph 38 of the pursuer's written submissions) is correct in relation to questions of law. I shall also indicate my views based on the defenders' approach - which in my opinion is the correct one.

The allegations against the Midwives

[124] In general terms, the pursuer's allegations against midwifes related to syntocinon; medical review; and abnormality of the CTG trace.

[125] The pursuer contended that in the exercise of ordinary skill the midwife caring for the pursuer at 23.00 hours had a duty to turn down the syntocinon and seek medical review. She contended that no ordinarily competent midwife would have failed to do so.

[126] There were essentially two parts to that allegation (1) one relating to syntocinon and (2) the other relation to seeking medical review. Both proceeded on the premise that there was "abnormality of the trace". The pursuer also alleged that foetal monitoring should be continuous in a diabetic pregnancy.

[127] In particular the pursuer contended that from 23.00 until 00.35 the midwife or midwives in charge of caring for the pursuer, in particular KMACP and CR, had a continuing duty to reduce and not increase the syntocinon and seek medical review by a member of the obstetric staff having regard to the abnormality of the trace.

[128] As mentioned above, syntocinon is synthetic oxytocin which causes the muscle of the uterus to contract. It is administered to women in labour to increase the frequency of uterine contractions. It can also be used after birth to control bleeding and assist with the delivery of the placenta.

[129] In relation to the alleged abnormality of the trace the pursuer's averred (Article II at page 10E) inter alia:

"At all times after 23.00 the CTG trace displayed features that ought to have been noted and reacted to by the Midwives in attendance had they been exercising due care and skill. When reading a trace the following features are considered:- the baseline foetal heart rate, variability of the foetal heart rate, accelerations and decelerations of the foetal heart rate, and the frequency, duration and intensity of uterine contractions and the intervals between the end of one contraction and the beginning of the next contraction. The baseline foetal heart rate is the mean level of the foetal heart rate with accelerations and decelerations excluded. Variability is the degree to which the baseline varies leaving out of account accelerations and decelerations. An acceleration is a transient increase in the foetal heart rate; a deceleration is a transient decrease in the foetal heart rate. Whether accelerations and decelerations are early, late or variable in relation to contractions provide an important indicator of foetal health. The CTG trace is read against the clinical background. The pursuer's pregnancy was high risk because of her diabetes and hypertension. The rupture of the membranes had produced no liquor. The pursuer's progress in labour was relatively slow. At all times after 23.00 the CTG indicated a degree of possible foetal compromise that ought to have been noted by those members of the midwifery and obstetric staff had they been exercising due care and skill. In particular the decelerations which had been variable and suspicious at about 22.00 became increasingly late with biphasic decelerations with periods of slow recovery towards the end of the period during which the trace was taken. At 23.00 the Midwives ought to have been alerted to the abnormality of the trace and, in the exercise of due care and skill, should have regularly called for a medical review. Their duty to do so continued whilst the trace was abnormal, i.e. until 01.12 at which time monitoring was discontinued. In light of the abnormality of the trace after 23.00 the Midwifery staff had a duty to turn down and not increase the syntocinon. At 23.45 the foetal heart rate was 130 beats per minute, variability was reduced and decelerations were atypical variable and some were prolonged "

The pursuer contended:

• That no ordinarily competent Midwife would have failed to appreciate the abnormality of the trace from 23.00 and thereafter;
• That no ordinarily competent Midwife would have failed to appreciate the need to reduce the syntocinon and not increase having regard to the abnormality of the trace; and
• That had the syntocinon been reduced the pressure of contractions on the foetus would have been reduced.

[130] In relation to monitoring, the pursuer averred (Article II page 13E) inter alia:

"The defenders aver that there was 'intermittent regular foetal heart monitoring' using a handheld sonic aid device. The defenders aver that the volume was turned up to allow all present to hear the foetal heart. That did not happen. There was no monitoring. There ought to have been monitoring at least every five minutes. At that time, no ordinarily competent midwife exercising reasonable skill and care, dealing with a diabetic mother with high blood pressure and who was failing to progress in labour (i.e. dealing with a high risk case), would have monitored the foetal heart rate less frequently than at five minute intervals".

The allegations against medical staff

[131] In general terms, the pursuer's allegations against Dr AS related to caesarean sectioning; monitoring; providing information to Dr MH; and syntocinon. Those allegations also proceeded on the premise that there was "abnormality of the trace" - as outlined above.

[132] The pursuer contended (Article IV) that:

• If a medical review been sought after 23.00 any reasonably competent Obstetrician having been appraised of the abnormality of the trace and the slow progress in what was a high risk pregnancy would have proceeded to an immediate caesarean section. Any reasonably competent Consultant Obstetrician having been apprised of the circumstances would have so advised. No ordinarily competent Registrar would have failed to do so.
• In the exercise of ordinary skill and care she (Dr AS) had a duty to continuously monitor the pursuer until such time as the foetus was delivered. The pursuer contended that no ordinarily competent Registrar would have failed to do so.
• In the exercise of ordinary skill and care Dr AS had a duty to deliver RM within a period of 30 minutes from the time of the instruction to proceed with caesarean section; and
• In the exercise of ordinary skill and care Dr AS ought to have informed Dr MH of all the relevant factors about the labour and, in particular, she ought not to have told him that the trace had disclosed early decelerations, and to have told him that there were the features described in article II of condescendence. She ought to have told him that there was no liquor present. Had she done so any competent consultant obstetrician would have advised that there should be a delivery by immediate caesarean section. An immediate caesarean section carried out having regard to possible foetal distress is likely to have been performed within 40 minutes. No ordinarily competent Registrar would have failed to do so.

[133] The pursuer contended inter alia:

• That foetal monitoring should be continuous in a diabetic pregnancy. Dr AS did not instruct that there should be continuous foetal monitoring until delivery. She should have done so. If it was not possible to monitor by abdominal trace then intermittent auscultation would be the minimum requirement. ... There ought to have been monitoring at least every five minutes. ... No ordinarily competent Obstetric Registrar would have failed to ask for monitoring at five minute intervals.

• That no ordinarily competent obstetrician would have interpreted the trace in the way noted by Dr AS at about 00.35: "CTG - has been marked earlies throughout but otherwise reactive". That is not what the trace showed. In particular the trace did not show early decelerations.
• That Dr AS should have advised Dr MH that the pursuer was diabetic, she should have advised him of the lack of progress and she should have alerted him to the abnormalities in the CTG.
• That Dr MH should have instructed an immediate caesarean section; and
• That if knife to skin was at 01.57 (as averred by the defenders) the last monitoring ought to have taken place, at the earliest, at 01.52. Dr AS should have delivered RM within 30 minutes. The Royal College of Obstetrics and Gynaecology recommend that an emergency caesarean section should be performed within 30 minutes of the decision being made. The pursuer noted that the staff appeared to be relaxed and in no particular hurry to perform the caesarean section.

[134] The pursuer also contended that on the hypothesis that there was no duty to proceed to an immediate caesarean section before 01:12 hours (which was denied) the loss, injury and damage was caused or at least materially contributed to by a negligent failure to monitor or negligent monitoring of the foetal heart rate after 01:12 hours.

[135] The pursuer also averred that "Dr AS did not turn off the syntocinon. She should have done so".

[136] The pursuer highlighted the following features on Record (page 43B). RM was born at 02:02 hours. At birth she was in poor condition. She had an Apgar score of (at most) 2. She was in the gasping stage of asphyxia (agonal gasping). If, as the defender avers, there were no signs of foetal distress when CTG monitoring ended, then the foetal distress began after 01:12 hours. Agonal gasping is not the first stage of asphyxia. It follows on from a period of foetal distress. For RM to have been in the gasping stage at birth, and then to have survived for 35 minutes before successful resuscitation, the gasping is likely to have begun very close to the time of birth. Before the gasping there would have been signs of distress audible on auscultation (if that auscultation was carried out with the skill and care to be expected of a midwife of ordinary skill exercising reasonable care). Had the distress been detected by auscultation (as it ought to have been) the caesarean section would have been expedited. RM would have been delivered before the onset of agonal gasping. She would not have inhaled the meconium into her trachea. She would not have been injured. Had RM been delivered at any time prior to 01.50 hours she would not have cerebral palsy.

[137] In conclusion, the pursuer alleged that in said duties said members of the obstetric and midwifery staff failed and so caused or at least materially contributed to the loss injury and damage suffered by RM. Had they performed the duties incumbent upon them RM would not have suffered said loss, injury and damage - so alleged the pursuer.

(b) The defender's position

[138] The defenders deny negligence - for the detailed reasons set out in Mr Stephenson's submissions.

[139] In essence the defenders contended that the members of midwifery and obstetric staff caring for the pursuer prior to RM's birth complied with all duties properly incumbent upon them.

(c) My conclusions in relation to negligence

[140] On the whole evidence, I was not satisfied that there was negligence on the part of the defenders' midwifery or obstetric staff.

[141] My findings in relation to the chronology of labour and RM's condition after delivery (set out herein) do not support the pursuer's contentions. They favour the defenders.

[142] My core finding, in relation to alleged negligence, is that the defenders' staff fulfilled all duties properly incumbent upon them.

[143] I reached that conclusion essentially for the reasons outlined by the defenders in their written submissions.

[144] As mentioned above, in response to a contrary suggestion from Mr Stephenson, Mr Gale indicated that the pursuer's case against Sister CR was being insisted upon. I shall deal with it on its merits.

[145] There was however, no case directed against Midwife KM, Dr MH (Consultant on call), or Dr L (Consultant).

[146] In the result the pursuer's case on liability was directed against Midwife KMACP, Sister CR and Dr AS.

[147] The pursuer's case seeking to establish liability based on syntocinon alone was not insisted upon.

[148] I agree with the defenders that there is no case of fault made on record against any member of the defenders' staff prior to 23.00 hours. I agree that there was no record for a case based on Professor Draycott's view that there was a negligent failure to recognise that the trace was pathological from 22.00 hours. However, I do not wish this case to be decided on a technical point. Accordingly, I considered the whole of Professor Draycott's evidence but, having done so, I do not accept that his views represented the situation in 1999. Professor Draycott's views as to the 1999 position were not shared by other witnesses. Professor Draycott also considered caesarean section mandatory by 22.30 - whereas it was not until 23.50 that Dr MacPherson considered that the midwives had to call for review. Professor Draycott impressed as being an exceptionally diligent professional and perhaps something of a perfectionist.

[149] I also agree with the defenders that there is no case of fault on record specifically directed against the defenders' midwifery staff in the period 00.35 to 01.12 hours - although I heard evidence to that that effect. I have considered the pursuer's criticisms relating to that period - and I reject them as unfounded.

[150] I agree with the defenders that the real difference between the various experts (in relation to liability) was in respect of the developmental stage that they thought had been reached (in an evolution of thinking and practice) in the 1990's.

[151] I was not satisfied that Professor Draycott's high standards and expectations reflected the situation in June 1999. That is not to criticise his worthwhile quest for the highest of standards which has already seen improvements in thinking and practice in recent years. I formed a similar impression in relation to the pursuer's other expert witnesses on liability. Mrs McConville also seemed to apply standards by reference to the 1992 first edition of Gibb et al but appears to have used chapter 4 rather than chapter 5. Dr MacPherson agreed that the more complicated Gibb approach may not have been the only view of these things. There were a number of disputed issues but the weight of the evidence suggested that the pursuer's experts appeared to be adopting an approach which may reasonably be described as too strict and exacting for 1999.

[152] In relation to liability, the standards applicable in 1999 and their application to the facts of this case, I preferred the views and the conclusions of the defender's skilled witnesses. Variations in interpretation were reasonably common and individual features of a CTG trace required to be seen in the broader context of the whole clinical picture. On the evidence, the interpretation of CTG trace readings was a matter of clinical judgment. It could not be said that the views of the defenders' experts were irrational, or illogical, or unreasonable. Reasonable and competent midwives and obstetricians could reasonably hold different views - as in fact happened.

[153] In 1999 the phrase "early decelerations" encompassed what are now known as "early" (or "true early") and "variable" decelerations. The same terms are being used in different ways then and now.

[154] Neither Dr AS, Dr MH, Dr Sanders nor Professor Walker considered RM's trace to be "pathological".

[155] I rejected, as unfounded, the pursuer's suggestions that some of the defenders' witnesses were self-serving, partisan, acting improperly or in bad faith, or were anxious to excuse. On the contrary, I found the witnesses of fact to be credible and as reliable as might reasonably be expected given the circumstances and the lapse of time. That applies to Midwife KMACP, Sister CR and Dr AS. I also rejected the suggestion that Midwife KMACP lacked core skills as being unfounded. I found the defenders' expert witnesses to be impressive and measured. I accepted that what was done was adequate in 1999.

[156] In the final analysis, Midwife KMACP's management was supported on material matters by expert midwifery opinion from Dr Sanders and expert obstetric opinion from Professor Walker - who were both impressive and measured witnesses.

[157] Dr AS's actions, by reference to the CTG trace, were supported by her own evidence and in any event by the evidence of Dr Sanders and Professor Walker.

[158] I reached the view that the pursuer has failed to prove her case even on the assumption that the pursuer's approach (in paragraph 38 of Mr Gale's written submissions) was correct in relation to questions of law.

[159] However, in my opinion, the defenders are correct in their approach to questions of law - as mentioned above in paragraph [25].

[160] In short, I find against the pursuer as a question of fact and in relation to questions of law.

[161] In general terms, I agree with many of Mr Stephenson's propositions. In particular, in relation to each case of fault advanced by the pursuer, there was expert evidence adduced by the defenders supporting the management of the pursuer's labour. The pursuer failed to establish that the evidence of the defenders' experts was unreasonable, irrational or illogical such that it requires to be rejected. The defenders' expert gave reasoned, considered views with appropriate regard to the factual evidence.

[162] Had there been a call for medical review between 23.00 and 00.35 hours a reasonable body of obstetric opinion would not have proceeded to caesarean section and accordingly RM's birth would not have been expedited. There was no evidence that either Dr AS or Dr MH (if contacted) would have done anything differently.

[163] Dr AS was not under a duty to monitor (or instruct that the midwives monitor) the pursuer by way of continuous electronic foetal monitoring from 01.12 hours. The obstetric and midwifery experts accepted that monitoring by way of intermittent auscultation using a handheld Sonicaid would have been acceptable.

[164] Dr AS's interpretation of the CTG trace following her attendance at 00.35 hours was not negligent. Her use of terminology in her written notes reflected an approach to CTG interpretation consistent with practice in other obstetric units at the relevant time. By the standard of the ordinarily competent obstetrician in 1999 Dr AS did not require to inform Dr MH of the matters identified by the pursuer in the terms averred by her.

[165] In any event (regardless of the terms used by Dr AS to describe the CTG trace when she spoke to Dr MH), on the basis of the trace at about 00.50 hours Dr MH would not have instructed that there should be a "crash" caesarean section. It would have been in accordance with a reasonable body of obstetric opinion not to proceed to a "crash" caesarean section. The pursuer failed to establish that delivery should have been expedited had Dr AS described the trace in the terms contended for. She failed to establish that Dr AS was duty bound to deliver RM within 30 minutes (or 40 minutes) of the instruction to proceed to caesarean section.

[166] Having regard to the appearance of the CTG trace shortly before its cessation at about 01.12 hours, the pursuer failed to establish that delivery should or could have been expedited. There was insufficient factual evidence to allow such a conclusion.

[167] On the evidence, so far as material to the trace in this particular case, there was no established consensus among the obstetrics and midwifery practitioners, and experts who gave evidence, as to the existence of an applicable and universally accepted standard for CTG interpretation in 1999 (section 4 of the defenders' principal submissions - paragraphs 4.1 to 4.43).

[168] In 1999 some obstetric units had applied a tripartite classification of decelerations of the foetal heart rate shown on CTG as "early", "late" and "variable" but other units applied a dual classification of "early" and "late" (or "type 1" and "type 2" dips as they used to be called).

[169] Professor Draycott relied on the RCOG 2001 Guidelines although they were not published until 2001.

[170] In any event, it was not established, as a matter of fact, that the applicable standard for Raigmore in 1999 was the equivalent of either the first or the second editions of Gibb or the RCOG 2001 Guidelines.

[171] Interpretation of CTG traces involves clinical judgment - and the evidence of defenders' experts could not be rejected as being unreasonable, irrational or illogical (section 6 of the defenders' principal submissions at page 88).

[172] I was not satisfied that there any negligent failure to monitor the foetal heart rate after 01.12 hours. I accepted the evidence of Midwife KMACP that intermittent monitoring would have occurred. She was an experienced midwife (albeit retired for 8 years and aged 73). In any event, the pursuer failed to establish that there would have been signs of distress audible on intermittent auscultation such that delivery should or could have been expedited.

[173] There was insufficient evidence to establish that it was negligent for RM to have been delivered at 02.02 hours on 2 June 1999 - as in fact happened. In any event, there was insufficient evidence to establish that RM's delivery could have been expedited such that RM would have been delivered uninjured.

[174] On the whole evidence, I agree with the defenders' conclusion (in paragraph 6.68 of their principal submissions) that: "The pursuer has not established any of the breaches of duty alleged on record. She has failed to prove negligence."

[175] In short, I cannot find a satisfactory basis (in fact or in law) upon which to hold that the pursuer is entitled to succeed on the question of liability.

[176] In any event, for the reasons outlined below, I was not satisfied that the alleged negligence (even if established) was causative of RM's cerebral palsy.

(3) Questions of causation

[176] The following matters were admitted or proved in relation to the period after delivery, namely:

RM was in a poor condition at delivery. Following birth there was a period of time before adequate perfusion was re-established. A paediatric SHO attended and commenced resuscitation. The Paediatric Registrar was called. An endotracheal tube was passed and oxygen was given under intermittent pressure. No air entry into the lungs was audible and the heart rate remained below 60/minute. Adrenaline was given and cardiac massage commenced. There was no evidence of a pneumothorax. At 30 minutes the consultant paediatrician arrived and he re-intubated. RM was transferred to neonatal intensive care and attached to a ventilator with some improvement in her heart rate and general condition. One hour after birth the presence of a moderate sized pneumothorax was noted and this was treated and within 7 hours of age RM was noted to be breathing well enough to be disconnected from the ventilator. She needed a short period of nasal CPAP (continuous positive airway pressure). When she was extubated a note was made that there were "creamy white secretions ++ in tube". RM did not have meconium aspiration syndrome. She did not need to have surgery on her trachea. From a few hours of age RM became irritable, jittery and started to twitch and then convulse. Various cranial ultrasounds were performed.

[177] In relation to other (disputed) matters, I propose to deal with them under the following headings, namely:

(a) the pursuer's position on causation;

(b) the defenders' position; and

(c) my findings on questions of causation.

(a) The pursuer's position on causation

[178] The pursuer averred inter alia that:

"During labour RM suffered chronic partial asphyxia. At or shortly before delivery she was no longer able to compensate for the prolonged chronic partial asphyxia. As a result she began to gasp while in utero. By gasping she inhaled a plug of fresh meconium deep into her airway. The meconium plug caused acute asphyxia which in turn caused the brain damage which has led to the disabilities from which she suffered and continues to suffer."

[179] In outline, the pursuer's position was as follows.

[180] RM was in a poor condition at delivery being floppy, pallid, unresponsive and bradycardic. She was covered in meconium which is the content of the foetal bowel and can be indicative of foetal distress prior to delivery.

[181] RM had a gasping respiratory effort for the first ten minutes of life. Accordingly at birth she was not in a state of terminal apnoea. After about 10 minutes she entered a state of terminal apnoea. Animal experiments have shown that the gasping phase before the onset of terminal apnoea lasts for around 10 minutes. Accordingly RM entered the gasping phase shortly before birth.

[182] RM aspirated the meconium shortly before birth.

[183] Following birth there was a considerable period of time before adequate perfusion was re-established. A paediatric SHO attended and commenced resuscitation and the paediatric registrar was called.

[184] Attempts were made to clear the airway of meconium. Attempts were made to ventilate with a bag and mask. The registrar arrived at 5 minutes after delivery and RM was described as limp, gasping, blue and covered in meconium. Meconium was removed from RM's mouth and throat by suction. The heart rate was at this time still below 60/minute.

[185] The finding of creamy white secretions would not be unusual on extubation. The lining of the trachea produces mucus.

[186] The fact that RM did not have meconium aspiration syndrome was not inconsistent with her trachea having been blocked by meconium at or around the time of her birth.

[187] The defenders averred that it is likely that RM was initially unable to breathe because of a bronchogenic cyst in the trachea. However, chest x-rays and bronchoscopy did not find a bronchogenic cyst or its remains. Bronchogenic means composed of material that looks like bronchus. Bronchogenic cyst is rare. As noted above, RM did not need surgery on her trachea. There was no release of trapped foetal lung fluid at the time of intubation, when ventilation became effective. Initial blood gases demonstrated a severe acidosis. In the neonatal period she developed a severe hypoxic ischaemic encephalopathy.

[188] As mentioned above, from a few hours of age RM became irritable, jittery and started to twitch and then convulse.

[189] An infection screen for bacterial and viral infection following birth was negative. Chromosomes were normal. Various cranial ultrasounds were performed (as averred towards the end of article 3 of condescendence) - so contended the pursuer.

(b) The defenders' position on causation.

[190] The pursuer's averments in relation to causation were denied and disputed by the defenders. In outline the defender's position was as follows.

[191] The defender's accepted that RM was in a poor condition at delivery. The APGAR score at 5 minutes was 0. (The recorded APGAR scores and times required to be approached with caution). On delivery RM was alive. She had a heartbeat and tone, although she was relatively flat and in need of some resuscitation. Her skin colouration did not obviously suggest hypoxia. Her buttocks were covered in thick sticky meconium, from her mid-thigh to waist. There was no liquor around the baby. There was no meconium on her face or above her waist. No meconium had been observed before delivery.

[192] RM was placed in a towel. She was brought to the resuscitaire and attended to by Dr BA, Senior House Officer. He recorded APGAR scores of zero at one minute and zero at five minutes, although elsewhere in the notes an APGAR score of 1 at one minute is recorded suggesting the continuing presence of a heartbeat. The Registrar, Dr RA, was summoned. Dr BA visualised the vocal cords and suctioned material thought to be dirty meconium from the hypo-pharynx. He commenced bag and mask ventilation. RM's heart rate at this point was less than 60 bpm. Air entry was reported but she failed to "pink-up". Dr BA performed suction under direct vision and removed what was thought to be more meconium, before recommencing bag and mask ventilation.

[193] Dr RA arrived at five minutes of life. He recorded an APGAR score of 2 (for heart rate and respiratory effort) at five minutes. He noted the baby was gasping, limp, smeared in light green meconium and blue/pale all over. Her heart rate was less than 60 bpm. Wrapping RM in a towel would tend to smear the meconium present below her waist and increase the areas of her body on which meconium was visible. Dr BA requested cord gases be taken but the sample obtained was too small to test. Dr RA attempted bag and mask ventilation for less than one minute. He then intubated with a size 3 endotracheal tube. At intubation it was noted there was no meconium at the vocal cords. Intermittent positive pressure ventilation (IPPV) with oxygen was given through the endotracheal tube. No air entry was noted and there was no improvement in her condition. External cardiac massage was commenced. 3 mls of adrenaline was administered down the endotracheal tube. It was noted the fluid stayed in the tube and spilled over the top. Cardiac massage continued throughout. The endotracheal tube was changed to a different size (size 4). It was confirmed to be correctly placed. IPPV was given. Again no air entry was noted. A bilateral pleural tap was performed to exclude pneumothorax. No air was aspirated. An intravenous line was inserted into the umbilical vein. Resuscitation drugs and fluids were administered.

[194] When Dr GF, consultant paediatrician, arrived at 30 minutes of life RM was limp, blue/pale in colour, with a heart rate below 60 bpm. Dr GF unsuccessfully attempted to achieve air entry by occluding the pop-up valve on the resuscitation bag to increase the pressure into the lungs. He re-intubated but no air entry was achieved. He then sucked on the end of the endotracheal tube. He again re-intubated and satisfactory air entry was achieved. It was not until approximately 40 minutes after delivery that satisfactory air entry was achieved. RM's heart rate improved and she became pink in colour.

[195] RM was transferred to the neonatal unit. She was given more fluid and bicarbonate due to capillary blood gas showing a significant acidosis. Antibiotics commenced. A chest x-ray performed at about 3 a.m. showed a right side pneumothorax and clear lung fields. A repeat arterial blood gas in 30% oxygen and moderate ventilator settings showed a low carbon dioxide and continued acidosis. A chest tube was inserted to drain the pneumothorax.

[196] RM's clinical condition improved. A repeat chest x-ray performed at about 04.30 showed the pneumothorax had resolved. The endotracheal tube was pulled back by 1cm as it was considered to be too low for optimal placement. Meconium was suctioned from the nasogastric tube indicating there was meconium in RM's stomach (not the trachea). At about 7 hours of age RM was in 21% oxygen. She was extubated later that day. "Creamy white secretions ++ in tube" were noted on extubation. It would be unusual for a baby who had only been intubated for a few hours to have thick secretions.

[197] The pursuer's placenta when delivered was noted to be meconium stained. This indicates meconium was passed prior to the onset of labour and had been present for at least 24 hours prior. Given the absence of liquor observed during the labour and the absence of fresh meconium above the baby's waist on delivery it is unlikely meconium was aspirated at or about the time of birth as condescended on by the pursuer.

[198] It is likely RM suffered cerebral palsy due to a failure of resuscitation following birth in consequence of an obstruction in her trachea which could not have been predicted or prevented.

[199] The defenders contended that in RM's case the cause of the obstruction was most likely a bronchogenic cyst in the trachea, which was traumatised by repeated intubations and possibly the final episode of suction (as indicated by the presence of creamy white secretions noted on extubation). It is likely Dr GF was ultimately able to achieve ventilation because he placed the final endotracheal tube lower in the trachea, i.e. past the obstruction.

[200] RM's trachea was not obstructed by aspirated meconium. Aspiration of meconium does not result in complete airway obstruction. The lack of meconium in the trachea, the clear lung fields on chest x-ray and the requirement for no additional inspired oxygen above 21% indicate RM did not have Meconium Aspiration Syndrome.

[201] The presence of meconium only in the pharynx and stomach mean she could not have gasped in utero and aspirated meconium, but that she simply swallowed meconium and was able to protect her airway.

[202] Failure of resuscitation due to an obstructed trachea is a rare but documented event.

[203] Gasping or agonal breathing is a distinctive large inspiratory effort occurring every 10-20 seconds. Gasping is usually a sign of significant hypoxia and if appropriate resuscitation is not given promptly will lead to secondary apnoea and circulatory collapse within a short time and death. Had RM been gasping from prolonged asphyxia it is unlikely she would have survived for an additional 40 minutes without adequate ventilation. It is possible RM's attempts to breathe vigorously in the presence of an obstructed airway resembled agonal respirations.

[204] The defenders also averred that diabetes mellitus, particularly when longstanding and associated with diabetic retinopathy and nephropathy (the probable cause of the pursuer's hypertension) is associated with significantly higher incidents of foetal morbidity and mortality.

(c) My findings in relation to causation

[205] I agree with the pursuer that cause and causation are questions of fact for the judge to assess - in light of the guidance provided by the skilled witnesses. I also agree that causation falls to be assessed in light of current up-to-date knowledge and expertise.

[206] There is no doubt that RM's airway was obstructed by something after delivery.

[207] The two competing scenarios (relating to meconium and bronchogenic cyst) make it extremely difficult to reach a clear conclusion in relation to what exactly caused the obstruction or when. There was compelling expert evidence in support of both those possible causes. Both scenarios were rare and both had contra-indications in the evidence.

[208] On a balance of probabilities, I am unable to hold that the obstruction of RM's airways was caused, or materially contributed to, by the negligence alleged by the pursuer to have occurred during the latter stages of the management of labour.

[209] It is likely that RM suffered cerebral palsy due to a failure of resuscitation following birth in consequence of an obstruction in her trachea which could not have been predicted or prevented.

[210] It is possible that RM's airway was obstructed by a bronchogenic cyst - as suggested by Dr Coutts. Despite the factors highlighted by the pursuer I cannot exclude that possibility.

[211] Nevertheless, despite the factors highlighted by the defenders, it seems more likely (as between meconium and bronchogenic cyst) that RM's airway was obstructed by some meconium - probably inspissated hardened or thickened meconium rather than fresh meconium. That was the impression formed by Dr GF at the time. Professor Stenson was an impressive witness and, although it was not unequivocal, he felt that meconium was the most likely explanation. Meconium need not be of uniform consistency or shape.

[212] Meconium can be indicative of what is sometimes called "foetal distress" prior to delivery - but it is not necessarily evidence of negligence. Nor is the presence of meconium sufficient by itself to establish the necessary causal link between alleged negligence and injury.

[213] A blockage of the trachea caused by meconium which is capable of withstanding the attempts which were made to intubate RM has not been recorded in the medical literature, but that does not mean it did not happen in this particular case.

[214] I accept that the fact that RM did not have meconium aspiration syndrome is not necessarily fatal to the pursuer's contentions.

[215] However, in relation to the pursuer's case on causation Professor Stenson's view was that agonal gasping was a crucial part of the mechanism of injury. That gives rise to further difficulty for the pursuer.

[216] I was not satisfied that RM entered a gasping phase or agonal gasping shortly before birth. I did not accept the pursuer's submissions to that effect - essentially for the reasons outlined by the defenders (at page 127 paragraph 7.40 et seq of the defenders' principal submissions).

[217] An inference of chronic partial hypoxia prior to birth is not supported by the duration of time that RM survived without any effective airway.

[218] On the whole evidence, and even if RM's airway was blocked by some meconium, the pursuer failed to establish:

• that meconium was aspirated by RM through the process of agonal gasping;
• that agonal gasping occurred at or shortly before birth; or
• that there was chronic partial hypoxia prior to birth.

[219] Unfortunately, what exactly happened to RM will probably never be known.

[220] In addition to meconium or a cyst, there was also brief mention of a third possibility. Some form of mechanical blockage (from other extraneous material such as placental tissue or perhaps mucous) could have resulted in the same difficulties occurring on resuscitation - but there was no compelling evidence regarding such other possibilities.

[221] In any event, on the evidence, the pursuer failed to establish that delivery at some earlier point in time would have altered the outcome for RM.

[222] In the whole circumstances, I am simply not satisfied that the evidence in this case is sufficient to enable me (or entitle me) to make a finding in the pursuer's favour on the question of causation.

[223] On the contrary, the uncertainties and the factors founded upon by the defenders satisfied me that it was not appropriate to make such a finding.

[224] In the absence of a finding in the pursuer's favour, in relation to causation, the defenders are entitled to absolvitor.

[225] In short, I am unable to hold that the alleged negligence caused or materially contributed to the obstruction of RM's airway at, or after, the time of her birth.

Decision

[226] Clearly, this is a case of the utmost importance to the pursuer and all those involved.

[227] I have given anxious consideration to the pursuer's allegations in relation to negligence and causation but, on the evidence, I am unable to accept them.

[228] I am unable to answer the questions of fact, posed by Mr Gale, in the pursuer's favour (see paragraphs [32] and [33] above).

[229] I agree with the defenders on questions of fact and law, and in relation to both liability and causation, as outlined above.

[230] The pursuer has failed to prove her case and the defenders are entitled to absolvitor.

[231] In the whole circumstances, for the reasons outlined above, I shall repel the first plea-in-law for the pursuer and sustain the second and third pleas-in-law for the defender, and grant decree of absolvitor.

[232] I shall reserve the question of expenses meantime.