KR AGAINST LANARKSHIRE HEALTH BOARD
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 133
A747/10
OPINION OF LORD BRAILSFORD
In the cause
KR
Pursuer;
against
LANARKSHIRE HEALTH BOARD
Defender:
Pursuer: Maguire QC, Henderson; Balfour + Manson LLP
Defender: Anderson QC, Cleland; NHS Scotland Central Legal Office
16 September 2016
Overview
[1] The pursuer, “KR”, is the mother of a female child, “BHR”, who was born on 1 December 2007. This was the pursuer’s first child. At the date of birth KR was aged 20. The pregnancy had been planned. It was “booked” at a day assessment centre on 27 April 2007, which was at 7 weeks gestation. The estimated delivery date was 9 December 2007. A scan was performed at thirteen weeks gestation on 1 June 2007 with no problems detected. The pursuer attended at arranged antenatal appointments at weeks 7, 15, 20, 23, 26, 28, 32, 34, 36 and 38 weeks gestation. She prepared for the birth by reading books and pamphlets provided by clinical staff. The hospital where delivery was planned was Wishaw General Hospital (“WGH”). No risk factors were identified during the pregnancy.
[2] On 25 November at 38 weeks gestation KR experienced vaginal bleeding, was admitted to WGH, examined and cardiotocograph (“CTG”) monitoring of foetal heartbeat was undertaken. The CTG was normal and she was discharged home.
[3] At 0020 on 30 November 2007 KR self-referred at WGH giving a history consistent with the rupture of membranes at approximately 1930 on 28 November 2007. She complained of experiencing persistent “trickling down leg” in the preceding 24 hours and was experiencing “mild crampy abdominal pain”. She was again examined and monitored by CTG. The CTG was normal and at 0300 she was discharged home, given a further antenatal appointment, but told to phone the hospital if she had any concerns. On the same day at 1400 she again self-referred and was examined and monitored by CTG. The CTG appeared normal and she was sent home, advised to call the ward if anything untoward was experienced but otherwise to return to hospital on 2 December 2007 for stimulation of labour.
[4] At 1140 on 1 December 2007, a Saturday, KR was again admitted to WGH. She gave a history of “irregular contractions since 0700”. Between the time of admission and 1934 on the same day when BHR was delivered KR was continuously under the care of midwives and medical staff at WGH. The details of the clinical management of KR in the period between 1140 and 1934 on 1 December 2007 will be examined in detail in a subsequent part of this opinion.
[5] It is a matter of agreement between the parties incorporated in a joint minute that:
“[BHR] suffered injury from acute hypoxia in the 30 minutes before her birth at 1934 hours on 1 December 2007 and that had [BHR] been delivered at any time before 1914 hours on 1 December 2007 she is unlikely to have suffered any injury”.[1]
As a result of this injury BHR has developed significant disabilities in the form of dystonic athetoid cerebral palsy resulting from brain damage. The pursuer contends that the injury and resultant damage was caused by fault and negligence on the part of the defenders’ medical staff in failing to deliver the child before 1914 on 1 December 2007.
[6] The duties which are averred to have been breached are pled in article 4 of condescendence on pages 21 and 22 of the closed record in the following terms:
“... It was the duty of Dr Oniya, the registrar who attended at 1600 to call for the advice of a consultant who would have initiated C section procedure. Further she had a duty when she attended at 1645 to have commenced the delivery of [BHR] by C section at 1645 hours. Further, and in addition, it was the duty of Dr Oniya to have commenced the delivery of [BHR] by an emergency C section following her review of the first pursuer at 1720 hours ... Further and in addition, it was the duty of Dr Oniya to have commenced delivery of [BHR] by assisted vaginal delivery (given full dilation) or by C section at or around 1822 hours in consequence of the prolonged deceleration which commenced at 1818 hours and not to have elected to do a FBS in these circumstances. Further and in any event at each of her attendances with the first pursuer at 1645, 1720 and 1818 hours, Dr Oniya failed in her duty to discuss with the first pursuer the non-reassuring features, and the options, including urgent delivery by caesarean (or assisted vaginal delivery at the later time) to enable the first pursuer to make an informed decision about, and give her informed consent to, the continuing progress of her labour. ”
[7] Causation having been agreed in the joint Minute already referred to, and any issue of damages having been reserved, the proof was confined to the issue of liability.
Witnesses
[8] The pursuer led evidence from the following witnesses:
1. KR.
2. NR, the pursuer’s mother.
3. Lyndsey Cullen, midwife.
4. Dr Olubumni Omomara Oniya.
5. Dr Norman C Smith, Emeritus Consultant Obstetrician, Aberdeen Maternity Hospital, expert witness for the pursuer.
In addition to leading the foregoing witnesses the pursuer tendered affidavits as evidence from the following witnesses:
6. Elizabeth Little, midwife.
7. Sister Eileen MacDonald, sister midwife.
8. Sister Christine MacKay, midwife and maternity controller.
9. Ann Marie Richardson, midwife.
The defenders adduced evidence from the following witnesses:
1. Dr Garrick Knox Osbourne, retired consultant obstetrician and gynaecologist.
2. Dr John McGregor Grant, retired consultant obstetrician and gynaecologist.
3. Dr Phillip Owen, Consultant Obstetrician and Gynaecologist, North Glasgow NHS Trust, expert witness for the defenders.
4. Dr Elizabeth Sarah Cooper, Consultant and Lead Clinician in Fetomaternal Medicine, New Royal Infirmary of Edinburgh, expert witness for the defenders.
Agreed facts
[9] The joint minute in relation to causation has already been referred to and its terms narrated. Beyond that the parties agreed that the pursuer’s temperature during her labour on 1 December 2007 was a fact relevant to determination of the issues in dispute and produced during the course of the proof a document entitled “Temperature Table” showing in chronological sequence KR’s temperature throughout labour and the source of the information.[2] It further emerged from evidence led at proof that there was a consensus amongst the appropriately qualified clinicians as to what constituted maternal pyrexia, that is elevated temperature, during labour. That consensus was that maternal pyrexia was defined as being a temperature of “38˚C once or 37.5 ˚C on two occasions two hours apart.”[3]For clarity and convenience I simply incorporate this table into this opinion. In all subsequent parts of this opinion when temperatures are noted I use simply the relevant numerical figure. All such figures are degrees Celsius.
TEMPERATURE TABLE
| Date | Noted Temperature | Reference |
| 1December 2007 | | |
| 1140 | 36.8C | 6/13 page107 |
| 1210 | 36.8C | 6/13 page109 |
| 1225 | 38.2C | 6/13 page108 |
| 1300 | 38.2C | 6/123 6/13 page123 |
| 1320 | 28.2C | 6/13 page111 |
| 1350 | 38C | 6/13 page112 |
| 1400 | 37.6C | Partogram 6/13 page123 |
| 1405 | 38C | 6/13 page112 |
| 1430 | 37.6C | 6/13 page112 |
| 1500 | 37.6C | 6/13 page123 |
| 1515 | 37.6C | 6/13 page113 |
| 1555 | 38C | 6/13 page113 |
| 1600 | 38C | Partogram 6/13 page123 and page114 |
| 1700 | 37.8C | 6/13 page123 |
| 1720 | 37.8C | 6/13 page116 |
| 1800 | 37.8C | Partogram 6/123 |
| 2030 hours | 38.6C | 6/13 page128 |
The Factual Position as established in evidence
(i) 1 December 2007
[10] The factual position in relation to the period prior to 1140 on 1 December 2007 has already been summarised in the overview section and need not be repeated. The following narrative of the factual position between 1140 and 1934 is derived from the evidence and the medical records kept by WGH relating to KR [4]spoken to by witnesses. Unless otherwise stated all times refer to 1 December 2007.[5]
[11] At 1140 KR was admitted. The admission record[6] is signed “E MacDonald” who was at that time a sister midwife employed by the defenders. A number of routine tests including blood pressure and urinalysis were undertaken; temperature was noted at 36.8 and a patient history taken. The history noted “… regular contractions since 0700. SRoM [spontaneous rupture of membranes] 1100 30/11/07, clear liquor on pad”. At 1200[7] it was noted that she was having three mild/moderate contractions in 10 minutes and CTG was commenced. The initial CTG recording was “baseline 180, variability < 5 no accelerations, no decelerations. Not associated with foetal movement”. A decision was taken at this stage to ask the registrar to review. At 1205[8] KR’s position was changed by the midwife in attendance and blood taken for a full blood count. At 1210[9] Sister MacDonald performed an “Initial Assessment for spontaneous labour” involving an abdominal and vaginal examination of KR. This examination showed the cervix to be mid positioned and fully effaced, four centimetres dilated. The foetal head was described as “cephalic bobbing out of pelvis” and two centimetres above spines. Liquor colour was noted as “straw” and in a box on the assessment form also ??? was recorded “liquor? Hind water”. Blood pressure and pulse were noted. It was noted that KR was apyrexial, that is there was no fever. At 1220 analgesia was discussed with KR stating that she wished diamorphine, which was administered.
[12] KR’s first review by a doctor took place at 1228.[10] The review was carried out by Dr Oniya, the subject of a complaint of negligence in the case. At this time Dr Oniya was a registrar in obstetrics and gynaecology employed by the defenders at WGH. She had qualified as a doctor in 1992. She had the practice for 2 years in she overseas counting where she qualified in what she described as “basic obstetrics and gynaecology”. She then went to the USA but came to the UK in 1997 and qualified to practice in this country in 1997. In the same year she passed part 1 of the Royal College of Obstetrics and Gynaecology (“RCOG”) exams. Following 1997 she worked for a year in gynaecology, followed by two and a half years obstetrics and gynaecology and 6 months in internal medicine in various hospitals in England. She then undertook 6 months of general practice before coming to Scotland in 2004. There followed two and a half years working in the labour ward at the RAI, Paisley and a further year in that hospital in an obstetrics and gynaecology training post. In May 2007 she sat and passed Part II of the RCOG exams and became a member of that body. Thereafter she was appointed as a registrar in the Department of Obstetrics and Gynaecology at WGH. On 1 December she was the only registrar on duty in the labour ward at WGH. Dr Oniya stated that she could remember being called to review KR shortly after her admission but had no recollection of the midwives on duty.
[13] Dr Oniya noted a foetal tachycardia, that SRoM had occurred at 1100 the previous day, she recorded that KR was “feeling cold and shivery” and also feeling “faint and light headed”, and was “contracting 3:10 strong”. The doctor, presumably following examination, noted “bulging membranes and high head”. Temperature was noted as 38.2, blood pressure at 120/77 and pulse at 92 beats per minute. The CTG trace was considered and noted as “baseline uncomplicated tachycardia, rate 160-180”. A dipstick testing of urine was performed and the results recorded as “2 + leucocytes protein + blood +”. As a result of these tests and examination Dr Oniya recorded her impression of the patient’s condition as “?UTI”, that is she raised the possibility of a urinary tract infection. She then wrote on the medical record a plan to manage the patient in light of her impression involving the intra-venous administration of fluids, administration of an antibiotic (augmentin), the taking of blood for culture and “ARM [artificial rupture of membranes] if tachycardia does not settle”. In explaining these notes in evidence Dr Oniya said that in her assessment she did not note any concerning features in the CTG, apart from “the higher than normal baseline rate”. There had been no speculum examination performed and therefore she “had to assume that the membranes are intact”. She therefore decided to artificially rupture the membranes if the foetal tachycardia did not settle.
[14] KR had limited memory of her first meeting with Dr Oniya. She remembered that the doctor came because she “wasn’t feeling well and had a high temperature”, broadly consistent with Dr Oniya’s account. She stated further that “Dr Oniya didn’t discuss a plan to do with my labour”. She remembered that the doctor put in a drip and gave her diamorphine.
[15] Following Dr Oniya’s review paracetamol was administered to KR at 1255[11] and antibiotic as directed by Dr Oniya commenced at 1305.[12] The CTG trace was reviewed by midwifery staff at 1310[13] and noted as “baseline 170bpm, variability 5bpm no accelerations, no decelerations”. Contractions were noted at “3:10” and as being “mild @ present”. At 1320 Midwife Grant took over care of KR as lunch relief[14]. She noted contractions “3:10 mild”, foetal heart rate at 165-175 beats per minute, “variability reduced – 5bpm”, no accelerations or decelerations and temperature 38.2. Further recordings are noted, by Midwife MacDonald at 13.50[15] as “CTG baseline 160, artefact no acceleration since 1250 no decelerations, contractions less frequent”. She noted temperature 38 and pulse at 94 beats per minute. The entry concludes “Reg paged to review”. Dr Oniya appears to have responded to the page because there is an entry at 1400[16] stating that she will review the trace and patient when free as she is busy in another ward with a patient. The unit co‑ordinator Sister Mackay was informed of this and it is noted that she “will review”.
[16] At 1400 “tepid sponging commenced” and it was said that there was a “fan insitu”. Sister Mackay reviewed at 1405. She noted a pulse rate of 94 and temperature of 38. Her review of the CTG trace was “Baseline 165-170bpm. Variability <5bpm. Artefact evident. Contractions inco-ordinate.” On the basis of these findings Sister Mackay requested that the registrar review the patient. This appears to have happened; the next entry in the medical record is at 1415 and notes: “Registrar present in room”. The entry is signed by Midwife Cullen. There is no record of what, if any, examination Dr Oniya carried out at 1415. The records are equally silent on what instructions, if any, were given by Dr Oniya in relation to patient management at this time. Dr Oniya’s evidence about her involvement at this time was an acceptance, based on the records, of her presence in the room but beyond that no recollection. She took from the note and the following entry at 1430 which involved the consultant Dr Osborne that she was in the room both at 1415 and at 1430. Her oral evidence was that she thought she was in the room when Dr Osborne arrived. Midwife Cullen gave evidence about the entry at 1415 and did have a recollection of events at that time. She said that at that time Dr Oniya decided to perform an assisted rupture of membranes (“ARM”) on KR in the room. She asked Midwife Cullen for a piece of equipment required to perform this operation. Midwife Cullen said she was “doubtful” about performing this operation at the time and so she left the room to speak to Sister MacDonald and “possibly Sister Mackay”. Her seniors asked her to ask the registrar whether it was her plan to rupture the membranes in the room where KR was at that time or, a arrange to transfer the patient to Ward 24, a more suitable ward for this procedure. Midwife Cullen returned to the room and asked the registrar this question. She said that Dr Oniya was not happy that her decision had apparently been questioned. She said the doctor was “exasperated by these midwives telling me what to do”. She asked Midwife Cullen to leave the room. Midwife Cullen stated further that Dr Oniya then also left, in her words, “with gusto”. KR gave some evidence about the events of 1415. She remembered some discussion between Dr Oniya and the midwife about” breaking her waters fully”, as she described it. So far as KR remembered Dr Oniya was in favour of this the midwife was not, preferring to wait and let it happen naturally. She also remembered Dr Oniya “taking the midwife out the room” at this stage.
[17] The next record of any clinical findings is at 1430 and is made by Dr Osborne, the consultant obstetrician on duty that afternoon. Dr Osborne appears to have attended at the request of Sister Mackay.[17] Dr Osborne’s review of the CTG at this time noted foetal heart rate at 170 to 175bpm with reduced variability and no decelerations present, that KR remained pyrexic and that on examination the amniotic fluid was clear.[18] The consultant noted “Progress satisfactory” at this stage and his ongoing management instruction is noted as “Assess CTG and contractions”.
[18] In relation to Dr Osborne’s review at 1430 KR had some recollection of what she referred to as “scrapings” or “scraping the baby’s head”. She said there was no discussion about what the “scraping” was for, it was “just to check the baby was ok”. She said that Dr Oniya “did the scraping” and that both the doctor and the midwife used the term “scraping”. KR also said that at this stage nobody told her anything about how her baby was. No one made any mention of any risk to her baby. She said that no one mentioned anything about the baby having a, in her words, “fast heart rate”. She was not offered the option of delivery by a caesarean section, albeit in response to a direct question on that subject she said she would not have taken that option at that time because she “wasn’t worried”. When questioned further about whether she would have availed herself of delivery by caesarean section at that time if she had been informed that she had an elevated temperature, that the babies heart rate was fast, that there was cause for concern and a risk that “the baby was not coping” she said “I would have had it”. She elaborated saying that if she had been told there was any risk to the baby she would have had a caesarean section. Her mother and partner were present and she could have discussed it with them. As it was her evidence was that the only information conveyed to her at this stage by medical staff was that her temperature was high.
[19] KR was cross-examined on her recollection of the period between 1415-1430. In particular she was asked about her use of the word “scrapings”. She said that she “understood” that they were “taking blood from the baby’s head”. It was put to her that if Dr Oniya had told her she wished to take foetal blood samples or to place electrodes on the baby’s scalp to allow foetal monitoring, both of which were invasive procedures the doctor would have explained the purpose of taking these steps. KR did not accept this. She said she remembered blood samples being taken by Dr Oniya but denied she had been told the purpose of this. She did have a memory of something she called “scrapings” being taken from the foetal head, which could refer to the attachment of electrodes to enable foetal heart monitoring, but she was clear that she was not told why this was being done. It was expressly put to KR that when taking these steps Dr Oniya said that if the results of the blood tests and foetal heart monitoring were satisfactory it would be safe to continue with the labour. This proposition was emphatically rejected by KR who said “no, absolutely not”.
[20] On the basis of the medical records KR was managed between Dr Osborne’s attendance at 14.30 and 1600 by midwifery staff. Post vaginal examination was carried out at 1445 at which time foetal heart rate was noted as 176bpm.[19] Monitoring by foetal scalp electrode commenced at 1455 at which time foetal heart rate was noted at 170bpm and clear liquor was noted to be draining.[20] At 1510 foetal heart rate was noted to be 170-175bpm and variability was recorded as less than or equal to 5bpm, there were no accelerations or decelerations.[21] Five minutes later at 1515, due to “no improvement” in variability since 1510 KR’s position was changed.[22] The midwife taking these actions also called Sister Macdonald, the midwife in charge of the ward, to review the CTG trace. That was done at 1530 and a CTG baseline of 160 was noted with variability of less than 5bpm and “no accelerations at rest or on palpation, no decelerations”.[23] Sister Macdonald noted her plan at this stage as “catheterisation and review”. Sister Macdonald’s last involvement in the care of KR is seen in an entry in the notes at 1555 “reg[istrar] will review”.[24] This brief note was explained by the midwife in her affidavit as follows: “at 1555 I have paged the registrar again, as variability is less than 5 and the baby was not responding to stimulation. This would be a cause for concern.”[25] At this time Midwife Richardson took over care of KR for about 15 minutes when she provided tea break relief for the duty midwife. She gives some further information in her affidavit about this period as follows:
“During that 15 minutes, I was unhappy with the trace so I got my senior to review the trace and then the consultant came up.”[26]
[21] The review planned at 1530 was carried out at 1600 by Dr Oniya who noted a maternal temperature of 38˚C, CTG baseline of 160 “with absent variability” and that she planned to take foetal blood samples.[27] Blood samples were not taken in Ward 21 where KR was situated and so a move to Ward 24, which had fewer beds, was for high risk patients and was nearer theatre and the consultant, was arranged by Sister Mackay[28] and took place between 1610 and 1615.
[22] Five foetal blood samples were taken between 1634 and 1643.[29] After this process Dr Oniya conducted a vaginal examination at 1645. There are two entries in the notes regarding this examination. Midwife Cullen noted “mec[onium] stained liquor now draining Pv [per vaginum]”.[30] Dr Oniya noted; “VE – 9cms anterior rim. Vertex at spines. Bladder 100mls. FBS x 4 samples. Moulding + Caput +. Position? ROA. Grade II meconium now – liquor apparently clear initially. Variability improved”.[31] At this point Dr Oniya’s note appears to be interrupted by a further set of observations by Midwife Cullen. In evidence the registrar explained this by saying that this was because the second part of her note, which is not separately timed, would have been made after the foetal blood test results became available, by inference after Midwife Cullen needed to record the results of further observations made by her. This appears a reasonable explanation and was not contradicted by the midwife. The midwife’s note is timed 1655 and records a baseline of 160-165bpm, variability at approximately 5bpm, no accelerations and “? Fleeting decelerations”, the midwife also records “mec[onium] stained liquor draining”.[32] Dr Oniya’s note then continues with a noting of the results of the foetal blood samples as follows; “Cord pH 7.375 BE [base excess] – 8.3, 7.36 BE – 10.6, third sample clotted, 7.44 BE – 3.3”.[33] The doctor then noted that KR was “contracting 4:10 strong”[34] and that she planned to reassess in two hours or sooner if the CTG indicated that.
[23] KR gave evidence relative to Dr Oniya’s examination at 1645. KR said that at this time her mother and partner were present in the room as were Dr Oniya and a midwife whom she could not name. On the basis of the records this would be Midwife Cullen. KR stated that she remembered overhearing Dr Oniya saying to the midwife “meconium stained liquor”. She knew what meconium was, that it was “the baby passing its first stool which was dangerous”, having read that in a book given to her as part of her pregnancy planning. On hearing this she “… sat up in a panic and said that I knew the baby was distressed and that I needed a c-section.” Her evidence was that in response to this Dr Oniya just said that everything was fine. KR’s mother also gave evidence about this incident, albeit she was unable to put any time to the matters she described. She said that she was in the room with KR and KR’s partner. Everything was calm until she heard the doctor say “meconium”. She did not know what meconium was but at this point KR sat up suddenly in bed. She then gave two slightly different accounts of what her daughter said at this point. Initially she said KR said “I need a c-section”. Slightly later in examination in chief and again in cross she said that what was said was “the babies distressed I need a c‑section”. Her account of the doctor’s reaction was broadly the same as that given by KR, she said the doctor just spoke to KR and tried to reassure her that everything was “OK”. Both Dr Oniya and the midwife recalled the doctor’s vaginal examination of KR at 1645. The doctor said that you could see meconium if present when performing a vaginal examination during labour and she thought she remembered seeing meconium stained liquor at this examination. She said that she didn’t mention this to the midwife present and did not have any conversation about it with the midwife. She said it was possible that the midwife might have mentioned meconium. It was put to her that at this time KR had said “the babies distressed I need a c‑section”. Her answer to that question was “I have no recollection of that at all”. Midwife Cullen said that on the basis of the entry in the notes for 1645 made by her[35] she assumed she had seen meconium. She acknowledged that the presence of meconium might have been MENTIONED by her or Dr Oniya and, further, that if said might have been heard by KR who was close to where she and the doctor were working. It was also put to her that KR had said at this time “the babies distressed I need a c‑section” and said that she couldn’t remember that and therefore “I can’t say whether it was said or not”.
[24] In relation to the blood test results recorded at 1655 Dr Oniya said that these were within acceptable limits. She accepted that in one of the samples the base excess level was slightly elevated, but given that the other base excess levels were normal this did not cause her concern. She took the results as an indication that the baby was in “good condition”.
[25] At 1708 there are two entries in the records. The first is by Midwife Cullen who notes “CTG baseline of 155-160bpm, variability reduced to absent over the past 10 minutes, No acceleration, No decelerations.”[36] In evidence the midwife said that at this time, because of these findings, she asked her superior, Sister MacKay, to review the CTG. This was done immediately and the second entry, by Sister Mackay, notes “Asked to review CTG – Baseline 155/160bpm, Variability < 5bpm. No decelerations. No accelerations. Meconium evident”.[37] In response to these findings Sister Mackay referred to the registrar, Dr Oniya.[38]
[26] In response to the midwife referral Dr Oniya reviewed the patient at 1720. She noted; “Reduced variability for 20 mins. Variability < 5. No decelerations. BR [baseline rate] 160. Temp 37.8”.[39] The registrar’s plan at this stage was the intravenous administration of paracetamol and to repeat the foetal blood samples in 30 minutes if variability was still reduced. She also noted that at this stage the patient declined an epidural. Paracetamol was administered in accordance with the doctor’s instruction at 1735.[40]
[27] Further observations were recorded by Midwife Cullen at 1740. She noted that the CTG baseline was 155-160 beats per minute, that the variability remained reduced and that there were no accelerations. One deceleration was noted with a quick recovery to baseline. Uterine activity was 4:10 and moderate, meaning four moderate contractions every ten minutes. The midwife recorded further observations at 1750 where it was noted that rectal pressure was felt and meconium stained liquor seen on the pad. The use of a fan was recommended.[41] In evidence Midwife Cullen stated that she asked Sister Mackay to review at this time, albeit that is not recorded in the notes. Consistent with that is however the next entry in the records at 1800, by Sister Mackay, where she notes “Baseline 155/160. Variability on the whole remains reduced”.[42] In her evidence Sister Mackay states that at this time there is another plan to review[43] and the records show that “Registrar present in room CTG slightly improved”[44] at 1605.
[28] The next entry in the notes is at 1818, is by Midwife Cullen and is; “Fh [foetal heart rate] [sign for drops] to 59bpm. Position to (R) lateral, no recovery position to (L) lateral. Fh recovered to 125bpm over 3 mins”.[45] At this point it becomes necessary to say something about the CTG trace. The consensus of evidence is that from 1730 – 1800 there was a baseline rate of around 160bpm with reduced variability. Between 1800 – 1817 baseline rate fluctuated between 160 – 170, rising to 180 for about two minutes prior to an episode of bradycardia, timed at 1817 from the CTG trace, when foetal heart rate dropped to 59bpm. In her evidence explaining the entry in the notes timed 1818 Midwife Cullen said that in an attempt to improve the foetal heart rate the patient was moved first to one side, and when that resulted in no improvement, to the other. At this point, after three minutes foetal heart rate recovered to 125bpm and thereafter to a baseline rate of 160bpm at 1827. There is an entry in the records relating to this episode of bradycardia by Dr Oniya and timed 1818 which is consistent with Midwife Cullen’s entry on the episode and , broadly with the timings on the CTG trace. The entry is however situated in the records after entries at 1825 and 1835 and therefore, at least as a matter of inference, was not made contemporaneously with the event it describes but shortly after. The entry states:
“Asked to review, deep bradycardia to 59, recovery over 3-4 minutes. Feeling pressure. Variability still reduced. VE [vaginal examination] for FBS [foetal blood samples]. Fully dilated, DOP, grade 2 meconium, station + 1”.[46]
[29] At 1825 there is an entry in the records by Midwife Hogg noting that “Registrar not left room” and that foetal blood samples were to be taken.[47] The blood samples were taken at 1835. Dr Oniya records the blood results at 1835. The results were normal. She also noted at this time that “Vertex advancing to +2 with contractions/pushing”. Her plan is now stated; “Will be deliverable vaginally. Commence pushing.”[48] Notwithstanding the timing of this entry as 1835 there is an entry on the CTG trace timed at 1843 “pushing commenced”.[49]
[30] Dr Oniya saw KR again at 1855 when Midwife Cullen records that as per the registrar’s instructions there was to be the commencement of active second stage.[50]
[31] At 1902 there was a shift change of midwifery staff. At 1904 the foetal heart rate dropped to 60 and did not recover despite midwives attempting multiple position changes of the mother. All medical staff were called to the room.[51] Necessary consents were obtained and the patient transferred to theatre at 1912.[52] The foetal bradycardia persisted and is recorded as 86bpm at 1913, 74bpm at 1914, 85bpm at 1918, 91bpm at 1919, 80bpm at 1920, 85bpm at 1921, 86bpm at 1923, 108 at 1924 and 106 at 1927.[53] At 1934 a live female infant, BHR, was delivered by forceps.
(ii) Post 1 December 2007
[32] KR gave evidence that in the evening following the birth she felt unwell but that she and her partner were excited. About midnight a paediatrician came and spoke to her and her partner explaining some of the difficulties the baby was experiencing. She said they were told the baby was “sick” and only had a “50/50 chance”. She explained that she was in shock on receipt of that information. The following morning Midwife Lindsay came to see her. KR was very upset and the midwife, who KR said was crying, apologised to her. The next day Dr Oniya came to see KR. The doctor said that she had gone through KR’s records for 1 December 2007 and “couldn’t see that she had done anything wrong”.
[33] Following discharge KR pursued the issue of the management of her labour with the hospital. In late 2007 Dr John Grant then a Consultant Obstetrician and Gynaecologist at Bellshill Maternity Hospital (now Wishaw General Hospital) and Hairmyres Hospital, East Kilbride was asked by Patient Affairs to review KR’s notes relative to her labour on 1 December 2007 in response to a claim made against the hospital by KR. Dr Grant considered the relevant records and interviewed Dr Oniya on 3 December 2007. He had a meeting with KR and members of her family on 14 March 2008.
[34] KR gave evidence about her meeting with Dr Grant on 14 March 2008. She said that she attended the meeting with her mother and father and partner. During the meeting Dr Grant produced the CTG traces from 1 December 2007 and showed KR and her family “… where it had dropped and recovered and the point where she had to be delivered”. KR also said that Dr Grant had told them “it could have been prevented” and that “someone was to blame”.
[35] When Dr Grant was examined about this meeting he initially indicated that he would have examined the case notes before to understand the events of the labour. He accepted that he would have gone over the CTG traces for 1 December 2007 with KR and her family. He was asked, in chief by counsel for the defenders, if he had been asked at the meeting if someone was to blame. His answer was :
“I don’t remember saying that, it’s possible, it’s not the sort of thing I would be likely to say. I may have expressed sympathy.”
Expert Evidence
[36] Expert evidence was given on behalf of KR by Dr Norman Smith, Emeritus Consultant Obstetrician at Aberdeen Maternity Hospital. His CV was produced.[54] His entire professional career has been in obstetrics and gynaecology. All positions he has held throughout his career have been in teaching hospitals. Between 1986 and retirement in 2013 this was in Aberdeen Maternity Hospital, a referral centre in this speciality for the North of Scotland. The maternity unit in Aberdeen deals with between 4500 and 5000 births a year. Dr Smith estimated that he would have dealt personally with about 500 of these deliveries each year. He also explained that beyond his clinical work and experience he had been, and remained after retirement, actively involved in postgraduate training and examining at the Royal College of Obstetricians and Gynaecologists.
[37] Dr Smith prepared and spoke to a report dated 19 December 2014[55] that he prepared for this case. For the purposes of preparing his report Dr Smith considered KR’s medical records.[56] The form of Dr Smith’s report was to consider each entry in KR’s medical records throughout her pregnancy in chronological order, commenting thereon and expressing his opinion on the standard of clinical care provided in a sequential manner.
[38] The stages of pregnancy up to admission to hospital on 1 December 2007 can quickly be dealt with and disposed of. Between booking of the pregnancy on 27 April 2007 and 1 December 2007 Dr Smith expresses the view that on each occasion when KR had contact with the defenders medical staff normal and usual practice was followed and appropriate care provided.[57]
[39] Between KR’s admission to hospital at 1140 on 1 December 2007 and the entry in the records timed 1415[58] Dr Smith notes the various clinical findings recorded in the notes and makes no adverse comments on the management of the patient or the standard of care provided.[59]
[40] The first criticism of the standard of care provided to KR relates to 1430, the timing of Dr Osborne’s examination of the patient. At that time DR Smith notes “… elevated maternal temperature in association with foetal tachycardia and reduced variability …”[60] He goes on to note that examination was undertaken, that rupture of the forewaters produced clear liquor and that a decision was taken to apply a scalp electrode and observe. Whilst he considered all that “a reasonable course of action” he went on to express the opinion that a plan of action should have been put in place at that stage to cover the possibility of the maternal pyrexia failing to resolve and there being no improvement in the CTG. I do not however require to deal with Dr Smith’s evidence in relation to the reasons for this opinion in light of the concession made by senior counsel for the pursuer on day 5 of the proof that “consideration of the case of fault at 1430 [was] unnecessary”.[61]
[41] In relation to the entry in the notes for 1600 when Dr Oniya reviewed the patient[62] Dr Smith notes the continuance of foetal tachycardia, reduced variability and the lack of improvement in maternal pyrexia despite the administration of antibiotics. Having regard to these factors Dr Smith expressed the view that:
“Management should have been discussed with the consultant and the failure to do so represented a departure from normal and usual practice.”[63]
Dr Smith then proceeded to deal with the period between 1634 and 1645 when on the basis of the records foetal blood samples were taken and Dr Oniya conducted a vaginal examination of KR. In relation to the blood tests he considered the pH results to be normal and to give reassurance “… that the foetus was not hypoxic at that time.”[64] He did however consider that the appearance of meconium stained liquor, noted by the midwife at 1645 and the registrar at 1655, “… is a concerning sign and normally means that the foetus has become distressed.”[65] He thought that:
“… the combination of persistent maternal pyrexia in a woman with prolonged rupture of the membranes, foetal tachycardia, loss of variability, lack of accelerations and the appearance of meconium stained liquor were more than sufficient grounds to perform C section at that time.”[66]
He further considered that the signs of foetal distress and persistent maternal pyrexia were associated with increased risk of cerebral palsy and that:
“… normal and usual practice would be to discuss with the consultant, discuss the options with the patient and proceed to C section.”[67]
It was Dr Smith’s opinion that failure by Dr Oniya to take these steps was a departure from normal and usual practice.
[42] The next events considered by Dr Smith were Sister Mackay’s review at 1708 and Dr Oniya’s review at 1720.[68] In relation to the period these reviews covered Dr Smith notes the continuance of reduced variability both between 1603-1700 and 1700-1730. He considers that there is no improvement in the CTG, that the patient remained pyrexial and that there was meconium stained liquor. He again expressed the opinion that management of the labour should at this stage have been discussed with the consultant and the patient and that permission to perform a c‑section should have been sought. His view was that the actions of the registrar departed from normal and usual practice.[69]
[43] Dr Smith notes the baseline rate on the CTG between 1730 and what he describes as a “sudden prolonged bradycardia” at 1817.[70] In relation to foetal blood samples taken at 1835 he considered the pH results normal but that the base excess values were “borderline”. He noted that at 1835 the registrar considered an assisted vaginal delivery was probable. His opinion was that:
“[T]he normal and usual practice in a woman with a pyrexia, an abnormal CTG[71] and meconium stained liquor would be to expedite delivery.”
In consequence it was his opinion that after the bradycardia and the vaginal examination by the registrar at 1818 KR should have been transferred to theatre for assisted delivery. This management plan should have been discussed with both patient and consultant. In failing to take these steps it was his view that the registrar had departed from normal and usual practice.[72]
[44] Dr Smith finally deals with the period from the commencement of pushing by KR recorded at 1843, through the “sudden bradycardia” at 1903 to delivery at 1934. He observes that by birth the foetus had become severely acidotic, and that the levels of acidosis recorded were associated with brain damage. In his view it seemed:
“… most likely that during the bradycardia between 1903 and 1924 hours, the foetus suffered hypoxia and acidosis that resulted in the hypoxic ischaemic encephalopathy”.
Dr Smith took no issue with management of the patient in the period between the decision to deliver and actual delivery (1904-1934). His view was however, consistent with what he had expressed in relation to the bradycardia commencing at 1817, that at that stage KR should have been transferred to theatre for assisted delivery and that if that had occurred:
“… it is probable that the baby would have been delivered by forceps within 30 minutes by 1850 hours at the latest”.
[45] On the basis of his analysis of KR’s medical records, Dr Smith concluded that KR was admitted to hospital at 11.40 on 1 December 2007 with a history of ruptured membranes for at least 24 hours. Maternal pyrexia and foetal tachycardia were noted at 1210 when the registrar was asked to review. When that review took place at 1225 a maternal pyrexia persisted and a urinary tract infection was suspected. Paracetamol and an antibiotic were administered and other steps taken to attempt to reduce the maternal temperature. Dr Smith’s opinion was that at that stage intrauterine infection should have been listed as a possible diagnosis as the patient had prolonged rupture of the membranes with the possibility of ascending infection from the vagina into the uterine cavity.
[46] Dr Smith went on to express the view that by 1415 the maternal temperature was 37.6 and the patient was reviewed by the on duty consultant at 1430. The consultant noted foetal tachycardia and reduced variability. Having regard to the stage in labour the consultant’s plan was to continue to assess CTG and contractions which Dr Smith considered reasonable. He considered that the most likely cause of the tachycardia and reduced variability was secondary to the maternal pyrexia rather than hypoxia. It was his opinion that a plan of management should have been put in place to deliver the patient if the pyrexia persisted and the CTG did not improve. He considered that a failure to put in place such a plan was a departure from normal and usual practice. He also considered that the patient should have been informed of that management plan and options discussed and that a failure to do so was a departure from normal and usual practice.
[47] In relation to the period between 1500 hours and 1633 hours Dr Smith considered that there was by this stage a combination of prolonged rupture of the membranes, persistent maternal pyrexia, foetal tachycardia, loss of variability, no accelerations and the appearance of meconium stained liquor, which in his view indicated that delivery should have been expedited by C-section. His opinion was that failure to do so deviated from normal and usual practice. The reason for his view was that maternal pyrexia in labour was associated with an increased risk of cerebral palsy. He went further and explained that the exact mechanisms for this association were not understood and, that the association was not always associated with foetal acidosis. His view was that in these circumstances the foetus is at risk. He observed that the foetus will have a temperature 1-1.5˚C higher than maternal temperature. In the circumstances of this case he considered that the foetus had shown signs of foetal distress for some considerable time on his interpretation of the CTG appearances and that the development of meconium stained liquor was a further sign of distress.
[48] Dr Smith further expressed the view that the course of action adopted by the registrar from 1645 hours onwards was one which no registrar of ordinary skill would have taken when acting with ordinary care. He expressed the view that it is well established in clinical practice and in the literature that a foetal tachycardia associated with maternal pyrexia is a cause for concern and if it persists for a considerable period of time then the foetus may not be able to tolerate it. He went further and said that there was a considerable body of epidemiological evidence implicating intrauterine infection as a cause of perinatal brain injury. He expressed the opinion that based upon this evidence early delivery of a foetus with CTG abnormalities in the presence of an unresolving maternal pyrexia was required and was, further, a widespread clinical practice. His conclusion and opinion was that at the very latest the foetus should have been delivered at 1645 hours when there was seen to be the development of meconium stained liquor in the presence of the other clinical features. He supplemented this by expressing the view that following the appearance of meconium at 1645 hours the management of the labour should have been discussed with the consultant on call. He considered that caesarean section was indicated as full dilatation had not been reached at that time. He also considered that the management options and risks should have been discussed with the patient at that stage.
[49] The defenders adduced expert evidence from Dr Philip Owen and Dr Elizabeth Sarah Cooper.
[50] Dr Owen’s CV was produced.[73] His entire professional career has been in obstetrics and gynaecology. Apart from pre-registration house officer appointments early in his career all positions he has held have been in teaching hospitals. Since 1997 he has been a consultant obstetrician and gynaecologist at the Princess Royal Maternity Hospital, Glasgow.
[51] Dr Owen prepared and spoke to a report dated 13 January 2015.[74] For the purposes of preparing his report Dr Owen considered KR’s medical records.[75] He also had the benefit of seeing letters relative to KR’s labour from Dr Osborne, dated 28 November 2008 and Dr Grant, dated 16 January 2009. He had been provided with a minute of amendment for the pursuers dated January 2013 and answers thereto for the defenders, albeit he does not appear to have seen the closed record in the actions.
[52] The form of Dr Owen’s report was to consider in chronological order the various entries he considered relevant during KR’s pregnancy and labour. He then gave his description and interpretation of the CTG traces taken on 30 November 2007 and 1 December 2007. He expressed his opinion on the results of the relevant laboratory investigations in respect of samples taken during the course of the labour on 1 December 2007. He then expressed his opinion[76] and thereafter for the remainder of his report gave his responses to the pursuer’s minute of amendment dated January 2013.
[53] So far as Dr Owen’s description to the CTG traces are concerned, he regarded the trace on 30 November 2007 As normal. So far as the traces for 1 December 2007 were concerned his interpretation was as follows:
“1150 to 1520 - Uncomplicated tachycardia of 165 to 175bpm. Short term variability normal.
1521 to 1620 - Tachycardia at 160bpm with reduced variability.
1620 to 1818 - Tachycardia between 155/160 bpm. There were no decelerations. No accelerations. Short term variability normal.
1818 to 1822 - Prolonged deceleration with complete recovery.
1822 to 1940 - Foetal tachycardia 160 to 170. Short term variability was normal. Brief (‘icicle’) decelerations present.
1904 until delivery - Deceleration followed by a bradycardia to 80bmp by 1908.”
[54] On the basis of the information before him Dr Owen’s opinion was that BHR experienced intra-partum hypoxia resulting in acidosis at delivery. This resulted in the subsequent development of hypoxic ischaemic encephalopathy which evolved into neuro-developmental delay. He considered that:
“[T]he acute and severe nature of the intra-partum hypoxic insult in this case is consistent with being the cause of [BHR’s] subsequent neuro-developmental delay. It can reasonably be stated that earlier delivery can be expected to have minimised the duration of the hypoxic insult and minimise subsequent adverse consequences for the infant.”
He further considered that the onset of the acute hypoxic insult could be determined with what he described as a reasonable degree of confidence. He considered that the CTG trace “... demonstrated persistent foetal tachycardia for most of the labour.” His explanation of the tachycardia was that it was a direct consequence of the elevated maternal temperature throughout labour which was a consequence of a laboratory proven maternal urinary tract infection. He noted that during labour foetal blood sampling had been performed on two occasions and on each occasion the results excluded foetal acidosis at the times the samples were taken. His view was that it was not possible to state with certainty the cause of the intra-partum hypoxia which commenced with the bradycardia from 1904. He did however think it was likely to be the consequence of chord compression during the second stage of labour. His opinion was that: “[T]his sudden deterioration in the foetal condition could not reasonably have been anticipated.” He went further and stated that it was not possible to state that the presence of a more experienced clinician than the registrar who was present at this time would have resulted in an improved outcome. He also thought that:
“[G]iven the unexpected nature of the intra-partum hypoxia there is no particular reason to consider that a more experienced clinician should have been present in the delivery suite at 1900.”
[55] Dr Elizabeth Sarah Cooper is a consultant obstetrician at the Royal Infirmary of Edinburgh. Her entire professional career has been in obstetrics and gynaecology. Following graduation as a doctor she undertook medical research and graduated MD in 1996. She was appointed to her current position as a full-time consultant in the Royal Infirmary of Edinburgh in 2001. She is clinically active in high risk obstetric and foetal maternal medicine. She undertakes regular sessions covering what she describes as a “very busy labour ward”, the unit delivering approximately 7,000 women per anum.
[56] Dr Cooper prepared and spoke to a report dated 13 January 2015.[77] The form of Dr Cooper’s report was to consider and detail what she regarded as relevant in KR’s pregnancy and the management of her labour on 1 December 2007. She thereafter considered the question; “Did BHR’s injuries result from intra-partum hypoxia?”; an issue which is no longer contentious in this case. The final part of her report considered the question; “Was the management of KR’s labour negligent?”.
[57] In answering the last question Dr Cooper firstly observed that given that Dr Oniya found KR to be pyrexial and tachycardic at the time of her first inspection and that urine analysis at that time was positive for blood, leucocytes and protein, that a diagnosis of urinary tract infection was “entirely reasonable”. Dr Cooper then noted that that finding was subsequently proven. It should however be observed that the test results of KR’s urine analysis were not known to the clinicians during the course of the management of labour on 1 December 2007. Dr Cooper also expressed the opinion that the CTG findings were consistent with a diagnosis of urinary tract infection. She also noted that foetal blood tests taken at 1645 and 1845 did not indicate fetal hypoxia. Having regard to those findings her opinion was that management of the labour was consistent with NICE guidance for the interpretation and management of CTG abnormalities where foetal blood sampling is advised in the presence of pathological changes[78].
[58] Dr Cooper then considered whether KR should have been offered a caesarean section either by Dr Osborne at 1430 or by Dr Oniya at 1645, 1720 or 1818. Having regard to the concession in relation to Dr Osborne’s management which I have already dealt with there is no need for me to narrate Dr Cooper’s views in relation to this question at 1430 hours. So far as the later periods were concerned Dr Cooper noted that at 1645 progress in labour was good, that Dr Oniya was concerned by the persistent foetal tachycardia and therefore took foetal scalp blood samples to measure pH. Results of these tests were normal which was not suggestive of hypoxia and in those circumstances it was in Dr Cooper’s opinion reasonable for Dr Oniya to allow labour to continue. In expressing that view she noted the presence of meconium stained liquor and persistent foetal tachycardia. Dr Cooper then went on to say that on subsequent review at 1720 by Dr Oniya the CTG had not changed and therefore the plan to repeat foetal blood sampling 30 minutes thereafter was unobjectionable. In relation to the final foetal blood sampling which was taken after the bradycardia at 1818 in Dr Cooper’s opinion the results were not suggestive of foetal hypoxia. In these circumstances she was of opinion that it was “reasonable to allow the active second stage to commence at 1840”.
[59] On the basis of all the foregoing it was Dr Cooper’s opinion that:
“[T]here was no indication to offer delivery by caesarean section at 1645, 1720 hours or 1818 hours as the labour was progressing and there was no evidence of foetal hypoxia for the same reasons indicated above ... I believe this management is consistent with GMC guidance on good practice.”
The evidence of Dr Osborne and Dr Grant on the management of KR’s labour
[60] Dr Osborne was, as already noted, the consultant on call during the course of KR’s labour on 1 December 2007. Dr Grant was another, senior, consultant obstetrician at WGH at the relevant time. Both these persons were adduced as witnesses of fact by the defenders, Dr Osborne to speak to his direct knowledge of his examination of care at or about 1430 on 1 December 2007, Dr Grant to speak to his investigation into the management of that labour following a complaint to the hospital by KR and to the meeting he had with KR and her family on 14 March 2008. Beyond those matters senior counsel for the defenders sought to explore the management of KR’s labour with these witnesses on the basis that they were appropriately qualified clinicians who could assist the court with the benefit of their experience in this area. This line of questioning was objected to by senior counsel for the pursuer on the basis that neither doctor had considered the relevant papers from the standpoint of preparing an expert report, neither had produced such a report and that both doctors were in any event potentially subjectively partial, even if only unconsciously, as a result of their involvement with issues germane to the resolution of the case. I allowed the evidence to be led subject to relevancy and competency and therefore now narrate the gravamen of that evidence.
[61] Dr Grant was shown KR’s medical records for 1 December 2007 for timings at 1620, 1518 and 1618.[79] He was asked if he considered that Dr Oniya was negligent in her management of the case at any of those times. In answering that question Dr Grant acknowledged that Dr Oniya “didn’t have as much experience as a consultant”. He said that he factored the doctor’s experience into his answer to the question. In relation to the findings at 1620 he considered that Dr Oniya’s handling of the situation was appropriate having regard to the level of her experience. He was shown Dr Smith’s report[80] in relation to that person’s views in relation to management at 1645. Dr Grant indicated that he had not seen Dr Smith’s report prior to giving evidence. In response to Dr Smith’s views he agreed that the presence of meconium could be caused by foetal hypoxia but expressed the opinion that in his experience babies at term will pass meconium with even a minor degree of hypoxia. Having regard to the other clinical features at that time he considered the presence of meconium in the liquor as being of no consequence. He further disagreed with Dr Smith’s opinion that pyrexia might be due to intra uterine infection. He considered that KR had symptoms of a urinary tract infection but that there was no evidence of an intra-uterine infection. At that stage having regard to all the clinical signs Dr Grant expressed the view that had he been managing the labour himself he would not even have bothered taking foetal blood samples. The fact that Dr Oniya did was precautionary and to reassure herself about the state of foetal health.
[62] In relation to the period after the bradycardia at 1818 Dr Grant considered that Dr Oniya’s decision to take foetal blood samples was correct and done to enable her to ascertain the state of the foetus’s health. The results of these tests was, in his words, “unequivocally normal”. He accordingly considered her management at that stage to be appropriate.
[63] In cross-examination Dr Grant was asked about the differential diagnosis between an intra-uterine infection and a urinary tract infection, both being potential causes of KR’s persistent high temperature throughout labour. Dr Grant accepted that pyrexia was an indication of maternal infection. He accepted that in KR’s case an intra-uterine infection was a possible explanation of her persistent pyrexia. He also accepted that rupture of the membranes could mean a risk of an intra-uterine infection developing. His view was however that whilst an intra-uterine infection was a possibility a more probable cause was that the patient was suffering from a urinary tract infection. His reason for this view was that she had other symptoms which were “much more suggestive of urinary tract infection”. These symptoms were the results of dipstick testing of the patient’s urine, the findings on abdominal palpation of the patient and the lack of strongly smelling vaginal discharge. He also considered that both the degree and magnitude of pyrexia experienced were suggestive of a urinary tract infection. His overall view as an experienced clinician was that if you looked at all of KR’s symptoms and signs on the balance of probabilities she had a urinary tract infection and that there was “little to suggest intra-uterine infection”. In relation to the foetus he considered that the tachycardia shown on the CTG trace throughout labour was consistent with maternal urinary tract infection. He considered that if there was a maternal intra-uterine infection the foetal heart rate would have been worse. Dr Grant was also cross-examined on the significance of the presence of meconium in draining liquor. The doctor’s view was that the presence of meconium was a feature which required to be taken into account. In his view you considered the presence of meconium in the light of the CTG trace. In this case it did not cause him to alter his view. He observed that a foetus could pass meconium by reason of any stress it encountered. He thought that in this case the passing of meconium was unlikely to be a result of an increased foetal temperature. When put to him he did not accept Dr Smith’s expressed view that a baby was likely to have a temperature approximately 1 to 1.5 ˚C above that of the mother.
[64] Dr Grant was asked his opinion in relation to the question of whether or not a consultant should have been called by Dr Oniya given that she was a registrar. Dr Grant’s opinion was that less experienced clinicians, such as registrars, had a greater obligation than more experienced clinicians to follow the relevant guidelines strictly. He indicated that if he had been on duty at the relevant time in KR’s labour “I would have stayed immediately outside [the ward where KR was] and if need be delivered the baby within ten minutes”. He also said that when the first bradycardia occurred (at 1818) “I would have delivered in the room”. He also considered that the clinician, that is Dr Oniya, should have considered when managing this patient at that time that she had not yet performed a forceps delivery. In light of these considerations his view was that the clinician involved had to manage the situation in a way different form that which he, a far more experienced clinician would have done. In his view the registrar’s primary duty was to make sure that she was in a position to deal with a situation if it arose.
[65] Dr Osborne in addition to his involvement as the senior treating clinician in attendance at 1430 was asked to consider Dr Smith’s report. He said that he had not seen Dr Smith’s report before it was placed before him in the witness box. He had seen KR’s medical records “recently”. He had also seen the pleadings in this case.
[66] In relation to Dr Oniya’s management of the patient following her review at 1600 he considered that the decision whether or not to discuss the situation with a consultant would have depended upon the level of experience of the registrar. He thought that an inexperienced registrar would consult with a consultant whereas a more experienced registrar would not. In the context of this case his view was that at 1600 the tachycardia related to a maternal pyrexia. He did not accept that there was a lack of variability in the CTG trace. In his opinion the only potential adverse sign at that time was meconium stained liquor (observed at 1645). In his view the presence of meconium had a “weak association” with foetal hypoxia. He also thought that the presence of meconium had a “weak association” with distress in the foetus. He did think it possible that the persistent maternal pyrexia could have caused the meconium in this case but expressed the view that that did not “make it more sinister”.
[67] Dr Osborne accepted that from 1720 onwards the CTG disclosed a reduction in variability. He accepted that that was a new finding and was another factor which had to be considered by the treating clinician. He further observed that at 1720 maternal temperature was normal. His view was accordingly that there were two non-reassuring features at that stage namely decreased variability and the presence of meconium. Having regard to these features his view was that at that stage he would “want to keep a close eye on the baby”. He was asked whether in his opinion it was mandatory to proceed to a caesarean section at 1720. His view was that having regard to the normal foetal blood samples obtained thirty minutes previously (time of foetal blood sample results was 1655) there was no indication which required a change in the plan of management at that time.
[68] In relation to the bradycardia at 1817 Dr Osborn’s opinion was that this was “a new and disturbing finding”. He went on to say that such findings were common in his experience in CTG traces and providing the trace returns to normal would not require interference with the management of the labour. In a situation such as that experienced at 1817 he stated that if he had been directly managing he would have been present and observed if the CTG returned to normal. He did not consider that the circumstances were an indication for interference. He was asked if there was any reason to have thought that the baby was at risk at that stage. His response was that the foetal blood samples taken at 1825 and reported at 1835 were “reassuring”. He considered that there was no significant change in the blood results at 1835 from those reported at 1655. Having regard to that he stated that it “did not appear to me at that time that the baby was at risk”.
The Law
[69] There was no material dispute between parties as to the law applicable to the determination of this case.
[70] In relation to the test of negligence parties were at one that the well established test for clinical negligence set forth in Hunter v Hanley[81] was applicable. In short the pursuer required to prove that the doctor, in this case a registrar, who is said to be negligent, had been guilty of such failure as no registrar of ordinary skill and care would be guilty of when acting with ordinary care. It followed that in order to succeed the pursuer required to prove firstly, that there was a usual and normal practice, secondly, that Dr Oniya did not adopt that practice and thirdly, that the course which Dr Oniya adopted was one which no professional of ordinary skill would have taken if she had been acting with ordinary care.[82]
[71] The present case also raised the issue of the assessment of competing expert views. In relation to this issue the parties were again in agreement that the correct approach is that summarised by Lord Hodge in Honisz v Lothian Health Board[83] in the following terms:
“First, the general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority[1984] 1 WLR 634, Lord Scarman, page 639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender leads evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Boliso v City Hackney Health Authority [1998] AC 232, Lord Browne-Wilkinson, page 241G‑242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite the body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgement. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which the other expert would not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and the benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test. As Lord Browne-Wilkinson said in Bolitho (page 243D-E), ‘ it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmarks by which the defendant’s conduct falls to be assessed.’ ”
[72] The last area of law which required to be considered in the context of the present case was that in relation to the issue of informed consent. Parties were in agreement that the Supreme Court had recently reconsidered the duty of a doctor towards a patient in relation to advice about treatment in the case of Montgomery v Lanarkshire Health Board.[84] On the basis of that authority the correct position in relation to the risks of injury involved in treatment was that an adult person of sound mind was entitled to decide which, if any, available forms of treatment to undergo, and the patient’s consent had to be obtained before treatment interfering with bodily integrity was undertaken and that the doctor was therefore under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative of variant treatments. The test of materiality was whether, in the circumstances of a particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably have been aware that the particular patient was likely to attach significance thereto.
Party’s submissions
(i) Pursuer’s submissions
[73] I had the benefit and assistance, for which I express my gratitude, of written submissions by both parties. The pursuer’s submission was split into a number of chapters. The initial chapters identified various issues said to be relevant in the case, narrated a number of agreed facts and made observations on reliability and credibility. The submission then identified what were submitted to be the relevant clinical findings before proceeding to discuss potential causes of concern for the foetus and analysing the overall situation in relation both to the Hunter v Hanley negligence test and the issue of informed consent.
[74] So far as the issue of what the pursuer termed the clinical picture was concerned, five issues were identified; (1) rupture of the membranes, (2) general condition of the pursuer (3) maternal pyrexia, (4) CTG – overview (i) tachycardia, (ii) variability and (5) potential intra-uterine infection and relevant signs/symptoms. I deal with these aspects separately.
[75] So far as pre-labour rupture of the membranes is concerned the consensus of expert and clinical evidence was that this occurrence, if factually proved to have happened, would establish a risk of intra-uterine infection. The pursuer’s position was that rupture of KR’s hind waters on or about 1100 hours on 30 November 2007 had been proven and that this would constitute a pre-labour rupture of the membranes.
[76] The second issue identified was the general condition of KR throughout labour. The proposition in relation to this was succinct, KR experienced increased temperature, essentially throughout the entire period between admission to hospital at 1140 on 1 December 2007 until delivery of the child at 1934. There was no suggestion of any other symptom which KR may have suffered which had a bearing on the issues relevant to the determination of this case. The issue of KR’s elevated temperature was dealt with in a separate chapter.
[77] So far as the issue of maternal pyrexia is concerned the pursuer’s position was that:
“[T]here is no suggestion the pursuer was ever not pyrexic. There can be no doubt there was maternal pyrexia throughout the labour.”
[78] In relation to the chapter identified by the pursuer as CTG overview two aspects were identified. The first, tachycardia, was dealt with in the proposition that there appeared to be a general consensus in the evidence that there had been a persistent tachycardia throughout the course of the labour. The second feature was variability. The pursuer’s submission was to draw attention to Dr Smith’s evidence that variability was in an overall sense reduced during the course of labour, albeit that he accepted that there was some periods of normal variability. He also accepted that this meant that the reduced variability did not technically fall within the definition of being non-reassuring baseline variability in terms of the applicable guidance,[85] because the reduced variability did not persist for 40 minutes or more at any given time. The pursuer’s position was however that the reduced variability was not an essential factor in Dr Smith’s ultimate analysis of the case.
[79] The last matter identified in the pursuer’s chapter on the clinical picture was the issue of potential intra-uterine infection. The pursuer’s submission was that there appeared to be a consensus in the evidence that the presence of maternal pyrexia was indicative of a potential infection. The two main candidates for such an infection were intra-uterine infection or a urinary tract infection. The identification of the presence of infections was important because of its potential risk to the foetus. The pursuer’s position was that the court did not require to determine which of these infections was more likely. The question which required to be asked was whether or not there was a potential for the presence of an intra-uterine infection. It was submitted that the answer to this question was that on analysis of the evidence and clinical signs available to Dr Oniya at the relevant times it would not be possible to exclude an intra-uterine infection. The factor principally relied upon was that pre-labour rupture of membranes increased the risk of infection. This was something which it was said Dr Oniya conceded in her evidence. Dr Smith propounded the view that with the rupture of the membrane the barrier provided by them to the surrounding uterus was gone. When membrane surrounds the foetus he thought there was minimal risk of infection but once that protective barrier was removed there was the possibility of draining of fluid that could have pooled in the vagina. He described the vagina as an ideal environment for cultures to grow and flourish. He also expressed the view that the timing of rupture of membranes was important because the longer membranes were ruptured the greater the risk of infection. Dr Grant accepted in cross-examination the view that the risk of infection increased with time. He also accepted that maternal pyrexia might be indicative of intra-uterine infection. Dr Cooper accepted that the pre-labour rupture of membranes increased the risk of an intra-uterine infection albeit she put the risk as quite low. Dr Owen agreed with the proposition that pre-labour rupture of membranes created a risk of infection and, further, the longer the period of time from rupture the greater the risk. Dr Osborne agreed with those general propositions.
[80] The pursuer then submitted that the features of pyrexia and tachycardia were also consistent with maternal infection, albeit either intra-uterine or urinary tract.
[81] The symptoms and signs of intra-uterine infection were considered in the submission but the conclusion was that having regard to the acceptance by all doctors that such an infection was a possible differential diagnosis this feature was suggested to be of no particular relevance.
[82] The next chapter of the pursuer’s submission was the potential causes of concern to the foetus. The first was infection. The submission in relation to this was that the significance of maternal infection was that the foetus would be susceptible to infection, which had an association with neonatal encephalopathy and cerebral palsy. The second was foetal temperature and foetal tachycardia. Here the submission was that maternal temperature was essentially elevated throughout labour. It was further submitted that there was a consensus that foetal temperature would have been running at a minimum of 1 to 1.5˚C higher than maternal temperature. It was submitted that the balance of evidence was that increased temperature in the foetus had an association with neonatal encephalopathy.
[83] The final concerning feature identified by the pursuer was the appearance of meconium. There was no dispute from the records that the presence of meconium was first noted at 1645 by both Dr Oniya and Midwife Cullen in separate notes. Dr Smith explained that the presence of meconium signified that the foetus had been stressed and that “something additional has happened to cause the foetus to become incontinent”. Dr Smith regarded “stressed” and distressed as the same thing. He further expressed the view that the appearance of meconium stained liquor during labour was more serious than meconium staining at the beginning of labour and, yet further, that changes from clear liquor to meconium stained liquor was of concern. Dr Oniya did not dispute that it was important to consider the presence of meconium in labour. She also regarded meconium as an important clinical factor. Dr Owen thought that meconium was “... never a welcome sign and may be a concerning sign.” He thought it a sign that the foetus was becoming distressed. Dr Cooper also thought that meconium would be unwelcome at the time of its appearance particularly against a background of clear liquor. She also volunteered that it could be a sign of foetal distress.
[84] Against the background of the foregoing features the pursuer’s submission then considered the position, first in relation to negligence and then in relation to informed consent at a number of key times during the course of pregnancy.
[85] In relation to negligence submissions were made in relation to the events at 1415. No case of fault is directed against management in this period. The events at 1415 are relevant in relation to the issue of informed consent and will be dealt with when those submissions are addressed.
[86] In relation to Dr Oniya’s review at 1600, it was submitted that at this time the doctor noted two non-reassuring signs, maternal pyrexia and reduced variability. In light of these symptoms the doctor’s management plan at that time was to regard the position as sufficiently serious to warrant the taking of foetal blood samples. It was accepted by senior counsel for the pursuer that Dr Smith’s opinion was that foetal blood sampling was probably not warranted at that time because the cause of the tachycardia was likely to be maternal pyrexia. Dr Smith’s view was that Dr Oniya should have discussed the situation with the consultant but notwithstanding this, accepted that the taking of foetal blood samples could be an appropriate decision. In these circumstances, senior counsel accepted that no criticism of Dr Oniya’s management at that stage was warranted.
[87] The submission then considered the position at 1645. The factual position at that time was said to be that it had been established that there was meconium stained liquor, persistent maternal pyrexia, foetal tachycardia, the absence of accelerations and prolonged rupture of membranes. It was said that there was also a risk of intra-uterine infection. In relation to variability, the submission was that there had been reduced variability sufficient to cause concern but it was accepted that the degree of variability was not such as would satisfy the definition in the NICE 2007 guidelines. It was submitted that maternal pyrexia and foetal tachycardia had been present since 1225. All of these features carried a risk of brain injury to the foetus. It was acknowledged that Dr Oniya had the results from the foetal blood sampling reported at 1655. It was accepted that these results showed that the foetus was not acidotic at that time. It was however pointed out that one sample indicated an abnormal basic excess and therefore this finding should have made the clinician approach the findings with a degree of caution. It was also noted that Dr Oniya accepted in her evidence that at this stage a clinician required to “consider the constellation of clinical evaluation and findings”. This meant, it was submitted, that you required to look at the whole picture and that it would be unwise to look at one aspect in isolation. It was submitted that Dr Oniya herself accepted a number of propositions, all of which required to be considered as part of clinical evaluation at this time. These features were that there was a risk of intra-uterine infection, that the consequences of an intra-uterine infection are grave for a baby, that a clinician cannot say that a stress factor for the foetus is not going to continue, that labour is stressful for a baby, that the baby would be running a temperature 1 to 1.5 degrees higher than the mother and that had been the case for about four hours by this time and that there is a limit to how long a baby can cope before foetal reserves are used up and when that will occur is very difficult to predict. It was pointed out that Dr Smith’s evidence was that foetal blood samples only provided information about the foetus at that time. It did not provide information about foetal reserves or whether or not the foetus was infected. In particular it did not provide information, in a case where the foetus had undergone a number of hours of increased temperature, and going forward for how long the foetus will continue to cope. The submission proceeded to highlight Dr Owen’s evidence on this aspect at this time. Dr Owen agreed that there was no exact scientific explanation or method of predicting when a baby would “run into trouble”. Dr Owen also accepted that a foetal blood sample could not tell the clinician what would happen to the foetus going forward in relation to either potential infection or how a foetus would cope with a mother being infected. In relation to all these issues it was then submitted that Dr Smith’s position was that Dr Oniya was looking to the foetal blood sample results as an end point and took false reassurance from the normal results. She failed to take into account the limitations of foetal blood samples in respect of the question of infection and prolonged pyrexia. She ignored the basic principle that all clinical factors require to be considered. Attention was drawn to Dr Owen’s conclusions in relation to the clinical features at 1645. Having regard to the potential of an intra-uterine infection, the unresolved maternal pyrexia, continuing tachycardia and the appearance of meconium it was noted that his opinion was that a caesarean section at 1645 was not an unreasonable option. It was submitted that the only point of difference between the opinions of Dr Smith and Dr Owen was whether or not all ordinarily competent registrars would have proceeded to a caesarean section at this time.
[88] In relation to these two medical opinions, senior counsel’s submission was that Dr Owen appeared to be “very influenced” by the diagnosis of urinary tract infection which was confirmed by post-event laboratory results. It was submitted that the court would be entitled to prefer Dr Smith’s evidence on this point on the basis that Dr Owen had informed himself by reference to the later lab results. It was also noted that Dr Owen’s defence of Dr Oniya’s position commenced with the proposition that it would be illogical to criticise her for not suspecting an intra-uterine infection when there was, on his view, a proven urinary tract infection. The analysis of the position required to consider the position as it was to Dr Oniya at the time she made decisions. On the basis of the evidence at 1645 – 1700 Dr Oniya was aware of the risks of intra-uterine infection and pyrexia. She was also clear that she regarded the foetal blood sample results as dealing with all issues and that, as a matter of fact accepted by the expert opinions, was not a correct approach. Having regard to these considerations in this case the court would be entitled to regard this as a situation in which the witnesses supportive of the blamed clinician had based their views on a mistaken or incomplete understanding of the relevant facts or that their views had no logical basis.
[89] The submission then proceeded to consider the position at Dr Oniya’s next review at 1720. The submission was that all the clinical features present at 1645 remained at 1720. In addition to these there was by this time a further period of reduced variability of 20 minutes. It followed that all the criticism made in relation to the 1645 period applied equally to 1720.
[90] The next point of criticism of Dr Oniya’s management related to the sudden bradycardia and the prolonged deceleration at 1818. In relation to this it was noted that in evidence Dr Oniya accepted that management of this occurrence required consideration and compliance by her with guidelines set down by NICE 2007 and/or RCOG 2001.[86] Notwithstanding these guidelines, Dr Oniya instead chose to proceed to obtain a further foetal blood sample, a decision made at 1825 on the basis of the records before the foetal heart rate had recovered. It was noted that Dr Smith’s evidence in relation to this was that this was a bradycardia within a prolonged deceleration, that foetal blood sampling should not have been undertaken and that the baby should have been delivered urgently. He observed that when foetal heart rate drops there is no way of knowing for how long that will continue. Further, in the present case, the background history should have been a cause for concern to the clinician who could not, in his opinion, consider the prolonged deceleration in isolation. His view was that against the clinical background the prolonged deceleration showed that the foetus was becoming more distressed and that it was going to develop hypoxia. Dr Oniya had accepted that she was aware of the guidelines and further that a clinician would have to have a very good reason not to follow them. It was Dr Smith’s view that there was no good reason not to follow the guidelines at this stage. It was pointed out in the submission that I had asked Dr Smith, Owen and Cooper about the correct approach by clinicians to application of the guidelines and each of these witnesses had accepted that while clinicians of significant experience might adopt their own approach to the guidelines, a registrar would be obliged to follow them. Having regard to the instructions given in the guidelines, the submission on behalf of the pursuer was that there was no logic at this stage in not taking steps to expedite delivery. The court’s attention was also drawn to the observations made about management of this stage of the labour by Dr Grant. He said that at this stage he, a very experienced clinician, would have managed the risk by waiting outside the door of the room where the patient was and knew that he could deliver by forceps in 10 minutes if that became necessary. It was noted that Dr Oniya having passed Part II at registrar level of the RCOG exams earlier in 2007, could not be regarded as having acquired significant experience, moreover as at 1 December there was her own evidence that she had never performed a forceps delivery. It was lastly observed that Dr Grant agreed to the proposition that in these circumstances Dr Oniya would have had to manage the risk in a different manner from that which he, a consultant of great experience, would have adopted. Having regard to these considerations the only logical manner to proceed was to proceed to assisted vaginal delivery.
[91] Having regard to the foregoing the pursuer’s submission was that it had been established that the normal and usual practice for a registrar would be to follow the guidelines and expedite delivery, having regard to the previous clinical history of the patient. Dr Oniya failed to do that and in so failing acted as no ordinary competent registrar would have acted in taking ordinary care.
[92] I turn now to the pursuer’s submission in relation to the issue of informed consent. The pursuer referred initially to the relevant parts of the GMC Guidance which have already been referred to. It was pointed out that in evidence Dr Oniya accepted that she did not offer KR the alternative of a C section at 1645 – 1700 or 1725. It was accepted by Dr Oniya that she did not offer the pursuer the option of assisted vaginal delivery at 1818 – 1830. The evidence of Dr Smith was that these options should have been offered to the pursuer. The evidence of Dr Owen was that these were reasonable options at the stated times. The submission was that these considerations would be sufficient to establish a failure on the part of Dr Oniya in terms of the guidelines to offer and discuss options and a failure to respect the patient’s right to make the decision about continuing towards spontaneous vaginal delivery.
[93] Beyond that the submission was that a full analysis of the factual position as established in the evidence disclosed a complete failure to involve KR in any part of the decision-making process in this labour. In that regard it was noted that the medical records, which had been examined exhaustively, disclosed no note of Dr Oniya having any discussion about the ongoing management of the delivery with the patient. There was nothing it was submitted in the evidence which would enable the court to draw any inference that there had been any such discussion with the patient. The only evidence of any discussion between Dr Oniya and KR was in relation to the taking of foetal blood samples between 1634 and 1643. The evidence in relation to that episode was the assertion by Dr Oniya that she “would have” advised KR before doing foetal blood samples that if the results were normal they would continue but if abnormal she (KR) would need a C section. It was drawn to the court’s attention that the way Dr Oniya gave this evidence was by way of assertion that that would have been what she would have done. KR’s evidence about this matter was that there was no full discussion with her about the purpose of foetal blood sampling and what might happen depending on the results. She was aware that her temperature was elevated and her understanding was that the medical staff were making efforts to ensure that the foetus’ temperature was satisfactory. There was no explanation about any concerns in relation to the CTG. KR was sure that there was no discussion about the progress of her labour depending on the results of the foetal blood samples. All this evidence had, it was submitted, to be considered against the factual background, which was undisputed, that in order to take the foetal blood samples KR required to be moved to another ward because it was an invasive procedure, such procedures were not carried out in the ward where KR then was and that the ward to which she was being moved was a high risk ward. The pursuer’s position was that she knew foetal blood samples were to be taken but that the limit of her knowledge was, on the basis of what she was told by Dr Oniya, that these were to “check if the baby was okay”.
[94] In relation to 1725 the pursuer’s submission rested on Dr Oniya’s own evidence. It was put by senior counsel for the pursuer to Dr Oniya that at that stage she did not discuss clinical features, changes in the CTG trace and KR’s options for delivery. Dr Oniya’s response to that question was:
“I may not have written it down but [KR] knows that I was called to review the trace again. There is a midwife in there with her constantly and she has one on one care. The midwives had decided she needed a review. I would assume before I came in that [KR] knew there were some new concerns. I would have gone in and looked at the trace so she knew at that point there was a concern as I had to go and review the CTG. It is very tough on the registrar if every time you go into a room you have to rehash everything.”
She was then asked whether that meant that she did not explain to KR the options for delivery and the doctor responded: “I did not offer C- section. I reviewed the CTG. I explained my plan to continue with paracetamol.” She was pressed further and it was put to her that she did not discuss the plan with the patient to which the doctor responded: “It’s possible I didn’t discuss it with the patient, there was no point in discussing it with the patient as this is a lady I was concerned about and I might be called back in 15 minutes. The assessment in two hours is an aide memoire”.
[95] In relation to the position at 1818 and immediately following, it was submitted that there was no evidence that Dr Oniya discussed with the pursuer the implications of the foetal bradycardia and prolonged deceleration. It was noted that Dr Oniya accepted that at no time prior to the events of 1904 did she offer KR the option of assisted vaginal delivery or discuss this option with the patient. Dr Smith’s view in relation to the clinical features at that time was that no ordinarily competent registrar would have failed to follow the guidelines and it was submitted that that opinion carries with it the implication that there was an alternative option which should have been discussed with the pursuer. It was submitted that Dr Owen’s position was that he had “sympathy” with the views expressed by Dr Smith.
[96] KR’s evidence in relation to this aspect of matters, which account was unchallenged, was that had she been offered a forceps delivery at this point she would have accepted it. Her position was, as it was throughout the entire period of the delivery, that she would not have accepted any risk to her baby.
[97] The submission then considered the issue of risks, having regard to the proposition that it is for the court to address what is a “material risk” in the context of what is important to the particular patient. It was submitted that the issue for the court is, was there a risk about which this pursuer should have been advised and which would have resulted her in accepting an option of alternative delivery?
[98] In relation to 1645 – 1700 there was no discussion with Dr Oniya regarding any concern about the wellbeing of the baby going forward. There was no discussion about foetal heart rate tracing or temperature. There was no discussion about alternatives for proceeding to delivery. KR was not told that there was any risk to her baby if the labour progressed and indeed on her evidence she was “never told there was any reason for concern”. Her evidence was that if she had been told of any risk of continuing with labour given temperature, heart rate and meconium she would not have accepted the risk of continuing with labour. She would have accepted C section if offered one. She stressed that a very important factor for her was the presence of meconium.
[99] The same considerations apply at 1720 to those pertaining at 1645 – 1700.
[100] In relation to 1818 the clinical picture was of pyrexia continuing, meconium and history of reduced variability, the risk of infection and the incident of bradycardia and prolonged deceleration. Dr Oniya’s position was that she did not consider urgent delivery at this stage. She did however concede that “every bradycardia is concerning”. She accepted she did not give KR the option either before or after taking foetal blood samples of having an assisted vaginal delivery. Her only reason for this was because the foetal heart remained settled and the foetal blood results were normal and accordingly she thought the lady could deliver the baby herself. Dr Smith’s position was at this stage he would have told the patient that she was fully dilated, that the baby’s head was below the spines, that there is meconium, a high temperature and prolonged deceleration and that therefore it would be prudent to expedite delivery. In relation to risk if he left the delivery to continue naturally he would have told the lady that there could be a period of pushing up to 2 – 4 hours and a consequent risk that the foetus may be unable to cope with the additional stress that would involve. He would have informed the patient that she had a fever and the foetal heart rate was rapid and that a drop in heart rate had already be seen and that was a sign of hypoxia. He would therefore have advised that if the patient went down the pushing route there would be an additional risk to the baby and potential risk to the patient herself because of her fever. He would have gone further and said that the risk to the baby was that it would have become hypoxic, that it may be infected at birth and may sustain meconium aspiration syndrome. If any of those results materialised they would require intensive care and could ultimately involve learning difficulties and cerebral palsy. He would have advised of the risk of death from infection and acidosis. He said that it was important that these risks were not negligible and having regard to that he would have told the patient that there was a good chance of these things happening. He further expressed the opinion that in situations such as this it was his experience that patients normally go along with the advice to accept an assisted vaginal delivery. His experience was that the risk to the unborn baby is usually the factor that helps the patient make management decisions.
[101] The pursuer’s conclusion against that background was that even if the court were to accept Dr Oniya’s evidence that there was a discussion before foetal blood sampling at 1634 – 1643 there was no evidence of any other actual discussion between doctor and patient. It was said that the inference from this was that there was no discussion about the clinical features of pyrexia, tachycardia, possible intra-uterine infection, raised temperature of the baby and the presence of meconium. There was no evidence that the pursuer was advised that she had an option of delivery notwithstanding Dr Oniya’s assessment and plan. This was said to amount to a clear contravention of the GMC guidelines and the requirements of Montgomery (supra) on each and every intervention by a clinician. The position, it was submitted, was that Dr Oniya took a calculated risk without discussing the matter with KR, the patient. KR was entitled to be told of the risk no matter that it was a small percentage risk. There was said to be no doubt that the consequences were potentially very grave and further that there was no doubt that if KR had been told of any risk she would have opted for delivery. The submission on behalf of the pursuer was that these failures on the part of Dr Oniya amounted to what was described as a:
“paternalistic approach in terms of her making the decision in determining what options were to be given as opposed to what options were available”.
[102] The final part of the pursuer’s submission was to note that the issue of causation was no longer in dispute. On the evidence no ordinarily competent consultant taking ordinary care would have declined delivery had an ordinarily competent registrar contacted him at the various times. On the evidence it was established that had KR been offered a caesarean section at either 1645 or thereabout or 1720 on the balance of probabilities BHR would have been born by 1800 or 1820 at the latest. This evidence was said to be unchallenged. Had KR been offered the option of assisted vaginal delivery at or about 1835 there was a possibility of delivery, accepted by Dr Oniya, within 20 to 30 minutes of that. Senior counsel for the pursuer accepted that this was within a period of time from decision to delivery when the second bradycardia occurred. It was however submitted that Dr Smith’s unchallenged evidence was that on the balance of probabilities, had an assisted vaginal delivery been offered at that time, delivery would have been achieved within 30 minutes, that is by 1905.
[103] The final conclusion for KR was that had it been demonstrated in fact and law that the actings of Dr Oniya at each occasion 1645, 1720 and 1818 fell below those to be expected from an ordinarily competent registrar taking ordinary care. Separately it was submitted that it had been established that the registrar had breached the duty to take reasonable care to ensure that KR was aware of material risks inherent in proceeding with the labour at those times and failed in her duty to avoid KR’s child being exposed to the risk of injury which would otherwise have been avoided. Had Dr Oniya fulfilled the obligations upon her at any of the times 1645, 1720 or 1818 it was said to have been established that BHR would have been delivered unharmed.
(ii) Defender’s submissions
[104] The defender initially dealt with the factual evidence from the standpoint of the issue of reliability and credibility of witnesses. It was submitted that this was not a case which was to be determined by questions of reliability and credibility. Notwithstanding this general proposition, the submission then proceeded to identify three areas which revealed a factual dispute between witnesses which areas required consideration of issues of reliability and credibility for their determination.
[105] The first area identified in this respect was in relation to KR and her family’s meeting with Dr Grant on 8 March 2008. It was noted that the accounts of the meeting given by KR and Dr Grant in their evidence was at variance. There was then some brief discussion of the areas of variance and a submission that the pursuer’s account was unreliable, albeit there was a disavowal of any suggestion that she had deliberately lied, rather senior counsel for the defender expressed the view that it was more likely that KR was simply mistaken about the import of what Dr Grant had said and that mistaken belief had solidified in her mind to conviction with the passage of time. This entire submission was however predicated upon the proposition that determination of what exactly was said at the meeting was “largely irrelevant to the matters to be decided”.
[106] The second area where it was submitted there was a dispute in the evidence was in relation to the taking of foetal blood samples by Dr Oniya at 1634 and following. In relation to this episode, senior counsel pointed to a number of aspects of KR’s evidence which were he said, objectively analysed, unlikely to be correct. These factors were KR’s reference to the term “scraping”, a non-clinical term which he said was most unlikely to be used by doctors or midwives. Secondly, it was submitted that KR claimed to have heard either Dr Oniya or a midwife use the term “meconium stained liquor” pronouncing the last word as in a strong drink. It was submitted that no doctor or midwife would ever pronounce the word in that way. The third factor relied upon was KR’s failure to recall seeing Dr Oniya between 1645 and 1904 which was contradicted by the medical records which recorded attendances by the doctor at 17.20, 1830 and after the bradycardia at 1817. Further, KR had no recollection of a vaginal examination when one occurred, was inaccurate in relation to her timing of the taking of the first blood samples, had an inaccurate memory of the number of blood samples taken and did not recall a room transfer to facilitate the taking of foetal blood samples.
[107] The third area where KR’s recollection was said to be inaccurate was in relation to her account of what she stated she heard and did when she heard mention of the word “meconium” at 1645. As I understood the defender’s submission was simply that what KR said in relation to this was wholly implausible and could not be relied upon.
[108] The defender’s submission then considered the expert evidence heard by the court. It was submitted that it was clear that the court could not simply prefer one body of expert evidence as correct over another. It was necessary for the court to examine the defender’s expert evidence in order to determine whether or not it stood up to logical analysis. In relation to that test it was submitted that the evidence of Doctors Owen and Cooper was “unequivocal and clear”. It was submitted that they explained how they arrived at the views they reached. It was further submitted that “for the most part their conclusions were never seriously challenged in cross-examination”. In considering the Hunter v Hanley test, that is whether the course adopted by Dr Oniya was one which no registrar of ordinary competence would have adopted if acting with ordinary care, it was submitted that the defenders were entitled to have regard to not only the evidence of their expert witnesses but to have regard to the evidence of Doctors Osborne and Grant. It was acknowledged that neither had produced an expert report and that at the material time both were consultants at Wishaw General Hospital. It was however submitted that both had carried out a careful review of the medical records and CTG trace and that in these circumstances their views should carry weight. It was also submitted that the doctor whose conduct was criticised in this action, Dr Oniya, a registrar at the time of the alleged negligence, was subsequently appointed as a consultant and practices now as a consultant and as an associate professor.
[109] The defender’s submission then proceeded to rely on the evidence of the four consultant obstetricians, apart obviously from Dr Smith, who had given evidence. It was submitted that it was “conspicuous” that there was broad unanimity amongst those four consultant obstetricians that no criticism could be made of the management of the case by Dr Oniya.
[110] The submission then continued by observing that whilst the defender did not need to show that Dr Smith was wrong in any respect there was a body of evidence which would entitle the court to have “cause for concern about some of the opinions expressed by Dr Smith”. In this regard the first chapter of evidence pointed to was the issue of the differential diagnosis between KR suffering from an intra-uterine infection or a urinary tract infection. The submission was that Dr Smith had what was described as an “obsession with the possibility of intra-uterine infection” in circumstances where on the evidence of the other four obstetricians there was no persuasive evidence of intra-uterine infection and the signs and symptoms taken together were strongly suggestive of urinary tract infection which was, as a matter of fact, subsequently proved albeit only after the birth of BHR. In relation to that matter I was directed to the evidence of Dr Cooper who stated that the risk of intra-uterine infection 48 hours after spontaneous rupture of membrane, the situation in the present case, was in the region of two percent. Dr Osborne considered intra-uterine infection “a small risk” and, further, that in this case there was simply no evidence to suggest that diagnosis. In relation to symptomology Dr Osborne made mention of the dipstick urine analysis, the area of abdominal tenderness experienced by KR, the clear liquor on assisted rupture of membranes and the lack of evidence of puss as reassuring features that KR was not suffering from an intra-uterine infection. Dr Grant’s view was that the symptoms displayed by KR were “strongly suggestive of urinary tract infection and there was no evidence of intra-uterine infection”. Dr Owen considered the diagnosis of urinary tract infection as “perfectly reasonable” and, differentially, intra-uterine infection was “extremely unlikely”. Against that background the submission of the defenders was that Dr Smith was “simply out on a limb on this matter”.
[111] The second area where Dr Smith’s views were criticised as being out of line with the obstetric opinion was in relation to his interpretation of the CTG trace. It was submitted that constantly throughout his report he saw reduced variability of less than five beats per minute. As a result of all this Dr Smith’s conclusion was that the CTG fell to be classified as pathological containing two non-reassuring features, tachycardia and non-reassuring baseline variability. It is submitted that Dr Smith was simply wrong about this. At no point was there any evidence that reduced variability came anywhere close to being less than five beats per minute for forty continuous minutes as required under the NICE guidelines so as to constitute a non-reassuring feature and, it was submitted, Dr Smith conceded this in cross-examination. The other obstetricians were said to be unanimous in regarding the variability as either “normal”, “reassuring” or “satisfactory”. The third area where Dr Smith was criticised was his belief that the presence of meconium stained liquor should be taken as a sign of “distress”. This was said to be simply speculation on the part of Dr Smith. The submission was that the results of foetal blood sample were normal and that this demonstrated that the foetus was not acidotic or hypoxic at the time the samples were taken. Dr Smith’s opinion was that the presence of meconium must have been due to some form of stress. The stress being experienced by the foetus was, in Dr Smith’s view due to heat. This view was said to be “out on a limb”. It was observed that the suggestion that the cause of foetal stress was heat did not feature in Dr Smith’s report. The proposition had not been put to Dr Oniya. Dr Osborne did not agree with Dr Smith’s view on this matter. Dr Grant described the view that the baby could be under stress as a result of a hot environment as “quite wrong”. He thought there were other explanations to account for a foetus’s bowels emptying at term. He thought trivial episodes could cause the bowels to move. Dr Grant thought that where you have an identified reason for increased temperature, in this case the urinary tract infection experienced by the mother, it did not affect the baby at all. The baby was insulated from the infection which was with the mother and there was no implication that the baby would come to any harm due to a UTI. Doctors Owen and Cooper also both refuted this suggestion. Dr Owen said that in his 27 years as an obstetrician he had never heard such a proposition and that the literature did not support this view.
[112] Having regard to all the foregoing features the defender’s submission was that if the task for the court was simply to prefer one body of opinion to another, this would be a case of a substantial body of qualified opinion against the lone voice of Dr Smith. It was however accepted that this would not be the correct approach. The correct approach here was to have regard to what was said to be established that being that it had not been established that there was anything unreasonable or irrational in the approach of the defender’s witnesses. In these circumstances there was no basis for the court to reject the views they had expressed in relation to these matters.
[113] The final part of the defender’s submission related to the informed consent case. In relation to that matter the defender’s proposition was that in Montgomery (supra) the Supreme Court had ruled that a doctor is under a duty of reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment and of reasonable alternative or variant treatments, the test of materiality being whether, in the circumstances of the case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably be aware that the particular patient was likely to attach significance thereto.[87] It was stressed that it was important to appreciate that it is not for the court to determine whether a material risk exists in the absence of evidence. The court armed with a full and proper understanding of the risk and benefits of a forced course of action was entitled to reach its own view as to whether a failure to advise on the comparative risks and benefits constituted a failure of reasonable care and thus negligence. Thus in order to do so the court required evidence as to the risks and benefits. There required to be medical evidence necessary to enable the court to reach a view.
[114] In the present case it was submitted that there was simply no basis for a Montgomery (supra) type case having regard to the facts.
[115] The defender’s submission was that the non-reassuring features were a moderate tachycardia, brief episodes of reduced variability and a bradycardia at 1818. On only one occasion during the whole labour prior to 1904, that is during the bradycardia at 1818, was there more than one non-reassuring feature present in terms of the NICE guidelines. In considering these factors it also had to be borne in mind that Dr Oniya performed two foetal blood samples both of which were normal and “hugely reassuring”. Following the foetal blood samples there was no concern to be had nor any concern which required discussion with the pursuer. There was, it was submitted no material risk to be identified. The submission was that a doctor can only discuss a material risk with a patient if a material risk has been identified. At 1645, 1720 and 1830 there was no material risk which could reasonably have been identified. It was said that Doctors Osborne, Owen and Cooper were specifically asked about this and they were clear that without the benefit of hindsight there was no material risk. They were said not to have been challenged on this opinion. It was further submitted that it was never put to any of the defender’s witnesses that there was a risk which was identifiable or how any such risk might be regarded as material. The basis upon which Dr Smith gave evidence about risk was said to be predicated on concerns about the labour which, on the basis of all the other obstetricians’ evidence was simply unwarranted.
Reliability and Credibility
[116] There was no challenge to the reliability or credibility of the expert witnesses, Doctors Smith, Owen and Cooper. I was entirely satisfied that each of these doctors was appropriately qualified and of sufficient experience to give expert evidence on the matters which they did. Each of these witnesses appreciated the duties incumbent upon them as an expert. In my opinion each of these witness attempted to the best of their ability to discharge their obligations to the court as an expert witness. They each expressed their views on the clinical and scientific matters about which they were asked in a competent and professional manner.
[117] I turn to consider the factual witnesses. There was no challenge by the defender as to the reliability and credibility of NR, the pursuer’s mother or Midwife Cullen. There was nothing in either of those witness’ evidence, or in the way in which they gave their evidence, which would cause me to doubt that they were attempting in so far as possible having regard to the constraints imposed by the passage of time to give an accurate account of events they witnessed. Four persons, Midwife Little, Sister MacDonald, Sister Mackay and Midwife Richardson gave evidence only by way of affidavit, which was relied upon by the pursuer. No objection was taken to this course by the defenders and in these circumstances I have accepted the evidence in the affidavits as truthful and reliable.
[118] There remains the evidence of KR, Dr Oniya and Doctors Osborne and Grant. I deal with each of these witnesses separately.
[119] Senior counsel for the defenders challenged the reliability of KR in a number of respects. Counsel was careful to stress that he did not submit that KR was deliberately lying in any respect. His position was that in relation to KR’s evidence about most of the events where he challenged her reliability, mainly the events of her labour on 1 December 2007, she had been at the relevant time under considerable stress and, moreover, for at least part of that time under the influence of morphine and other medication administered to her by medical staff. He also observed that at the time of giving evidence the event she was attempting to recall were some eight years or thereby in the past. In relation to 1 December 2007 the areas where he said KR had given unreliable evidence about have all been narrated in this opinion. I am satisfied that the criticisms made by senior counsel for the defenders were in the areas he identified correct. He also submitted that KR was unreliable in relation to what was said by Dr Grant in the meeting with KR and her family on 8 March 2008. The submission there was slightly different. Plainly KR at that stage was not under the influence of any drug or medication which might have distorted her ability to remember the events. Counsel’s submission in regard to this meeting was that what KR recalled as having been said by Dr Grant was simply inherently unlikely and therefore unbelievable. It was also observed by counsel that KR’s mother, who had given evidence, was not asked about this meeting. Neither KR's partner nor her father who had also been present at the meeting were called as witnesses. In a sense the events of the meeting between KR and her family and Dr Grant in March 2008 are of no relevance, determination of what exactly was said by anyone at the meeting is not relevant to the determination of any issue in this case. So far as I can determine the sole purpose for which anything that happened at this meeting might be relevant is as an aid to assess the reliability and credibility of KR, and for that matter Dr Grant. In relation to that question I find myself unable to form any concluded view. It seems tolerably clear from the accounts of the meeting given by both KR and Dr Grant that it was not a particularly easy meeting. Dr Grant said, and I accept his evidence in this regard, that he attempted to explain the situation as he considered it to be in clear and precise language. That may be so but cannot exclude the possibility of misunderstanding on the part of KR as to what was said. I observe that there was no contemporaneous minute or note taken of the meeting. Having regard to these considerations I am not prepared to accept senior counsel for the defender’s submission in relation to the reliability of KR in relation to her evidence about this meeting.
[120] So far as my own impression of KR is concerned I considered her to be attempting to assist the court and tell the truth in relation to the events about which she was asked. It is true that on occasions during her evidence she became upset. However having regard to the subject matter about which she was being questioned I regarded that as appropriate and understandable. I have already indicated that in relation to the events of her labour on 1 December there were certain areas, identified by senior counsel for the defenders, where her account is plainly contradicted by entries which were unchallenged in the medical records. In relation to these matters I simply find her unreliable but by reason of the stress of the events, possible influence of drugs and medication and the undoubted difficulty of coping over the years with the outcome of these events, such unreliability is understandable and not the result of deliberate intention to mislead. I should deal separately with the evidence she gave about Dr Oniya’s examination at 1645 when the presence of meconium was first observed. As already noted KR said that on hearing the word meconium mentioned she immediately sat up and said that the baby was distressed and that she needed a C-section. This evidence was supported by evidence given by her mother who was present at the time, albeit she used slightly different language to that employed by her daughter. Neither Dr Oniya or Midwife Cullen who was also present had any recollection of KR making these remarks. I reject the evidence of KR in relation to this. KR, her mother and Dr Oniya each had an interest in relation to this aspect of the evidence. The only truly independent witness was Midwife Cullen who had no recollection. The question, in relation to the subject matter I am addressing at the moment, for me is whether this was deliberate giving of erroneous evidence by KR, and for that matter her mother, or mistaken belief. Senior counsel for the defenders confined himself to submitting that this evidence was simply unreliable. I accept that characterisation as accurate. It appears to me likely that KR’s evidence in relation to this matter may be the result of having reconstructed events when thinking about her labour, erroneously believing that she had made mention of meconium on its presence being first mentioned and, with the passage of time, having formed a fixed view and belief on this matter.
[121] The reliability of Dr Oniya as a witness was challenged by counsel for the pursuer. The submission was that Dr Oniya “was not at all reliable in relation to key events, her recollection having been informed largely by the medical records ...”. It was pointed out that Dr Oniya stated that she was present in the room where KR was at 1415 and again at 1430 when Dr Osborne performed an examination of the patient. The medical records in fact note her presence only at 1415. Dr Oniya also claimed that there was no disagreement between her and Midwife Cullen in relation to the issue of assisted rupture of membranes at this time. Midwife Cullen gave clear evidence that there was a disagreement about this matter. KR had a recollection of these events which, whilst not so detailed, was generally consistent with that given by Midwife Cullen. I accept that these criticisms of Dr Oniya’s evidence are justified. On the basis of these considerations I do not consider, nor was it submitted by senior counsel for the pursuer, that Dr Oniya’s evidence could be categorised as generally unreliable. I do however consider that in these identified respects her evidence was not reliable.
[122] The issue in relation to Doctors Grant and Osborne was different. Senior counsel for the pursuer submitted that the court should regard them as factual witnesses and not as independent experts. It was submitted, correctly, that both doctors were at the relevant time in the employment of the defenders and therefore, even if only on an unconscious basis, might have a bias in favour of the defenders. It was also submitted that whilst both doctors had had occasion to look at KR’s medical records, neither had given specific or detailed consideration to these records of the sort that would be required for the purposes of preparing for evidence. Moreover, neither had prepared reports expressing their opinion in which they would have been obliged to have expressed any opinion they possessed in advance of a proof for consideration by opposing experts. Dr Grant had prepared a report for internal hospital purposes in 2008 but that was of an entirely different nature to an expert report prepared for litigation. In these circumstances it was submitted that the evidence of those persons was of limited value because they were not examining the full clinical picture and were not attempting to give a fair and impartial assessment of all relevant factors. I considered that there was force in all of these submissions. Whilst each of these doctors was appropriately qualified and of sufficient experience to provide expert evidence in a case of this sort, that had not been their task and, without any suggestion that they acted in any way improperly, I am not prepared to accept them as independent experts in this case. I must however go further. It was obvious that each of these doctors had very considerable hands-on experience of obstetrics and the delivery of babies. I had no reason to doubt that they were seeking to assist the court in giving their evidence. Some of their evidence in relation to the practical aspects of the obstetrician’s role in the delivery of a child were, in my view, insightful and for that reason of assistance to the court. For that reason I have had some regard to the evidence they gave in relation to matters of obstetric medical practice, albeit always bearing in my mind the caveat that they were not in this case independent expert witnesses.
Negligence
(i) 1645 – 1700 and 1720
[123] Dr Oniya was present in the two time periods dealt with in this sub-chapter. The clinical features in the earlier of the periods 1645 – 1700 remained the same in the later period, 1720. These features were that there was a persistent maternal pyrexia, foetal tachycardia, the absence of variability and prolonged rupture of membranes. In addition there was the presence of meconium stained liquor. Dr Smith’s opinion in relation to the presence of all these features was that the situation was sufficiently concerning that he would, assuming he had obtained the patient’s consent, have proceeded to caesarean section. Neither Dr Owen or Dr Cooper agreed with that view. They were both of the opinion that the foetal blood samples, the results of which were available in this period, proved that the foetus was not hypoxic at that time. They both regarded that feature as sufficient to justify Dr Oniya’s decision to proceed in the manner she did. Moreover both doctors Owen and Cooper disagreed with the analysis of the clinical features which was advocated and preferred by Dr Smith. They both acknowledged the existence of a longstanding maternal pyrexia but were both of the view that this was likely, on the balance of probabilities, to be the result of KR having a urinary tract infection. Whilst both acknowledged the possibility of an intra-uterine infection they thought the likelihood of that was very low, Dr Owen being prepared to put it as low as a 2% possibility. For this reason they did not consider that the risk of infection to the foetus, which was a known risk of intra-uterine infection, was significant. Moreover, whilst both accepted that a foetus’ temperature would be higher than that of the mother, they did not share Dr Smith’s concern about the general effect of heat. Dr Owen said that there was nothing in the literature to support Dr Smith’s views in relation to heat. In his long experience of obstetrics, he had never heard views about heat such as those expressed by Dr Smith. Whilst both doctors Owen and Cooper acknowledged that the appearance of meconium was not a good sign, and was something which had to be borne in mind in management, they both held the view that concerns in relation to this feature were assuaged by the normal foetal blood results. I should also observe that for essentially the reasons given by doctors Owen and Cooper both doctors Osborne and Grant disagreed with the expressions of clinical opinion made by Dr Smith.
[124] I have no reason to doubt that the clinical opinions expressed by Dr Smith in relation to these periods of time were genuinely held and indeed had been used by him prior to his retirement when he had been in day to day obstetric practice. It is noteworthy that, with the possible exception of his views on the general effect of maternal heat, none of the opinions expressed by Dr Smith were categorised by the other experts as wrong. It appeared to me that Dr Smith in giving his views was describing what I would characterise as a more interventionist approach to the clinical management of labour than that advocated by doctors Owen and Cooper, and for that matter doctors Osborne and Grant. Dr Smith while plainly taking cognisance of scientifically proven evidence, such as blood results, appeared to place significant emphasis on subjective evidence no doubt influenced by his long clinical experience. I do not criticise the approach advocated by Dr Smith but in the context of the present case the result is that his opinion as to management of this labour in the periods which I am discussing was different from that of two other experts in the same field. There was no evidence available to me to suggest that the views expressed by doctors Owen and Cooper in relation to management of this case in the periods I am discussing was incorrect, or did not represent the views of ordinarily competent obstetricians, in particular ordinary competent registrars in that speciality. Furthermore, I do not consider that there could be said to be anything illogical about the views these doctors expressed all of which were presented on the basis of either proven scientific fact or clinical practice which went unrebutted.
[125] Having regard to the foregoing considerations I am not satisfied that the pursuer has established negligence on the part of Dr Oniya in these periods.
(ii) 1818 and thereafter
[126] The clinical features discussed in relation to the two earlier periods persisted at 1818. At this time there was however the added factor of the sudden bradycardia and prolonged deceleration. Also relevant is that by this time KR was fully dilated and the foetus had descended to a position where assisted vaginal delivery by forceps was possible. Against that clinical picture Dr Smith was clear that there was no reason not to deliver the foetus at that stage. He did not consider that Dr Oniya’s management which was to take foetal blood samples was appropriate. The concerns he had had relative to the earlier period remained. Added to these was the consideration that when foetal heart rate dropped at 1818 there was no way of knowing for how long that would continue. He thought the whole picture was of a foetus becoming more distressed with the possibility of it developing hypoxia.
[127] Dr Owen had “some sympathy” for Dr Smith’s aforesaid views but, notwithstanding that, both he and Dr Cooper were prepared to accept that the registrar’s decision to take further blood samples was within the bounds of clinical judgement. Dr Grant, albeit subject to the observations I have made about his status as a witness in this case, made the interesting observation in relation to events at this period that faced with that situation he, a very experienced obstetrician, would have “waited outside the door” to see what might develop confident in the knowledge that if required he would have been able to deliver by forceps within ten minutes.
[128] Consideration requires in the context of the situation at 1818 to be given to both the NICE guidelines and the RCOG guidelines. In terms both these guidelines advise that where there is clear evidence of acute foetal compromise, an example of which is a prolonged deceleration of greater than three minutes, foetal blood samples should not be undertaken and, in the case of NICE, urgent preparation to expedite birth should be made and, in the case of RCOG, the baby should be delivered urgently. The threshold identified in the guidelines was met in the present case in the period following 1818. In consequence there arises the status of these guidelines and how their interpretation and implementation should be approached by a clinician. In regard to that question there appeared to be consensus amongst all the clinicians who gave evidence, that is the three expert witnesses and doctors Osborne and Grant, that whilst guidelines are simply that and need not always be followed to the letter, clinical judgement may always overrule a guideline, the degree of latitude available to a clinician in relation to the question of implementation of the guidelines was dependent upon the clinician’s experience. Quite simply the more experienced the clinician the more latitude, in appropriate circumstances to depart from the terms of the guidelines. Dr Grant perhaps expressed it most clearly in saying that experienced clinicians of consultant rank would be free in appropriate circumstances to depart from the guidelines whereas more junior doctors such as registrars would require to comply with the letter of the guidelines.
[129] I am of the view that the approach adopted to guidelines by the three expert witnesses and doctors Grant and Osborne is correct. Guidelines are themselves the result of deliberation by panels of experts who will have regard in formulating them to available scientific information and their own collective experience. The result of that process are documents which are intended to provide clinical guidance, not to set down mandatory rules. The approach to the implementation of guidelines by a clinician must in my view be informed by the clinician’s own appreciation of their level of experience. The more experienced clinician may in certain circumstances feel it appropriate to depart from the terms of a guideline, albeit that when such a clinician adopts this practice he must not only be careful but aware that in so doing his actions may be examined and indeed no doubt criticised in some circumstances. By contrast the less experienced clinician should in my view be aware that he or she, lacking the knowledge which can be acquired only from practice, is required to follow the distilled experience of other doctors more experienced which a guideline represents. In the event that a less experienced clinician considers the application of a guideline in a particular clinical situation to be inappropriate, it would be my view that it would be prudent for the clinician to consult with a more experienced professional colleague.
[130] Applying the foregoing to the present case, Dr Oniya was on 1 December, a relatively inexperienced obstetrician. She was not a consultant and held only a registrar’s position. I observe that Dr Grant considered that registrars would be required to follow the terms of clinical guidance to the letter. Notwithstanding these considerations Dr Oniya did not follow either the NICE or RCOG guidance in the period following 1818 in that she did not prepare for the immediate delivery of the baby by means of an assisted vaginal delivery. Furthermore, she contravened the advice in both guidelines and proceeded to arrange for the taking of foetal blood samples. Whilst her management in this regard was not criticised by doctors Owen and Cooper in this matter, I regard the views they expressed to be lacking in a logical basis. They both accepted the proposition that implementation of the guidelines must be dependent upon the clinician’s level of experience. It is proven that Dr Oniya was in a general sense, relatively inexperienced. She did not follow the guidelines and furthermore did not seek the advice of a senior colleague. Having regard to all the foregoing features I am satisfied that Dr Oniya’s management in the period following 1818 was negligent.
Informed consent
[131] In relation to this issue, I am satisfied that on the evidence, and with one exception, there was no discussion at any point during KR’s labour between her and Dr Oniya about the management of her case. The one exception is in relation to the taking of foetal blood samples at 1638 and following. In relation to this Dr Oniya said she would have informed KR what she was doing at the time. KR gave somewhat muddled evidence which might indicate that there was some discussion about foetal blood sampling. There is however no need for me to determine whether there was such discussion and, if so, the terms thereof for the straightforward reason that there is no causal link between the taking of foetal blood samples at that time and any of the subsequent consequences. In relation to all other periods the evidence of Dr Oniya herself was that, for a variety of reasons, there was no discussion about case management between herself and KR.
[132] Dr Oniya is said to be at fault in relation to her failure to discuss any risks and their effect on management of the case in three periods, those being exactly the same as those discussed in the context of negligence. In relation to the two earlier periods, 1645 – 1700 and 1720, I am satisfied that having regard to the satisfactory blood results of 1658, there was no material risk which necessitated Dr Oniya discussing the case further with KR.
[133] The position is, in my view, different in relation to the period following 1818. At that stage, as already discussed, the sudden bradycardia and prolonged deceleration made the case one where in terms of both the NICE and RCOG guidelines there was evidence of “acute foetal compromise”. As explained by Dr Smith, and not as I understand it challenged by doctors Owen and Cooper, that gave rise to a risk of the foetus developing hypoxia. I accept that the degree of that risk might be a matter for divergent clinical opinion, but no clinician who gave evidence demurred from the proposition that there was a risk. Moreover, there is no dispute that by this stage the foetus was in a position where an assisted vaginal delivery by forceps was a feasible clinical alternative to simply, as was done by Dr Oniya, instructing foetal blood sampling and thereafter proceeding to stage two of labour. It accordingly seems plain to me that at this stage there were two alternative approaches to the management of KR’s labour, first to proceed to immediate assisted vaginal delivery or, second, to obtain foetal blood samples and, providing these were satisfactory, proceed to stage two of delivery. In my view these alternatives should have been explained to KR and the risks associated with each also explained. Had this been done KR would have been provided with sufficient information to permit her to make an informed choice as to which course she opted to take. The fact that this approach was not taken renders this case, in my opinion, fairly within the ratio of Montgomery (supra). I am accordingly satisfied that the pursuer has established this part of her case.
[134] Having regard to the foregoing I will repel the defenders’ first to fourth pleas-in-law and uphold the pursuer’s second and third pleas-in-law. The case will be put out by order to allow me to be addressed on expenses and further procedure.
[3] 6/7 paragraph 7.8 – NICE Clinical Guideline, September 2007, “Intrapartum Care – care of healthy women and their babies during childbirth”
[5]Hereafter all references to “1 December” refer to 1 December 2007
[17] Affidavit of Christine Mackay dated 27/04/2015 at paragraph 9.
[25] Affidavit of Eileen Macdonald dated 27/04/2015 at paragraph 11
[26] Affidavit of Anne Marie Richardson dated [-]/04/2015 at paragraph 35
[28] Affidavit of Christine Mackay dated 27/04/2015 at paragraph 12
[38] Affidavit of Christine Mackay dated 27/04/2015 at paragraph 16
[43] Affidavit of Christine Mackay dated 27/04/2015 at paragraph 17
[53] All references to 6/13 page 117
[59] 6/16 paragraphs 8-12
[61] The case of fault relative to 1430, made against Dr Osborne is pled in Article 4 of condescendence at page 22D- 23B of the Closed Record
[68] 6/13 page both at 115
[78] 6/7 NICE Clinical Guideline, September 2007, “Intrapartum care – care of healthy women and their babies during childbirth”.
[82] See Hunter v Hanley (supra) per LP Clyde at 205
[83] 208 SC 235 at paragraph 39
[85] Royal College of Obstetricians and Gynaecologists, evidence-based Clinical Guidelines number 8 – “The Use of Electronic Foetal Monitoring” dated May 2001. The relevant definition is to be found in table 2.1 at page 11 where “Non-reassuring baseline variability” is defined as “Less than 5bpm for 40 minutes of more but less than 90 minutes”
[86] 6/7 – NICE 2007 at page 227: “Where there is clear evidence of acute foetal compromise (for example, prolonged deceleration greater than 3 minutes), FBS should not be undertaken and urgent preparation to expedite birth should be made”
RCOG 2001 – 6/18 of process – “... there is clear evidence of acute foetal compromise (eg prolonged deceleration greater than 3 minutes) foetal blood samples should not be undertaken and the baby should be delivered urgently”.
[87] See paragraph 87 of Montgomery