JILL CLARK (AP) AGAINST GREATER GLASGOW HEALTH BOARD
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 25
A605/05
OPINION OF LORD STEWART
In the cause
JILL CLARK (AP)
Pursuer;
against
GREATER GLASGOW HEALTH BOARD
Defenders:
Pursuer: Anderson QC, Arabella Tait advocate; Drummond Miller LLP
Defenders: MacNeill QC, Stuart advocate; NHS Scotland Central Legal Office
12 February 2016
[1] Jill Clark, the pursuer, was born over 23 years ago, on 2 March 1992 at 04.10. Ms Clark was born at the Queen Mother’s Maternity Hospital, Yorkhill, Glasgow. She was delivered by emergency caesarean section. Ms Clark sustained profound and irreversible perinatal hypoxic brain injury. Her intellectual functioning has been largely spared. She is able to instruct lawyers. Ms Clark now sues for damages on her own behalf. It is alleged that the oxygen supply to Ms Clark’s brain in utero was impaired because her mother’s womb ruptured. It is alleged that the uterine rupture happened because of negligent management of the labour by midwives and doctors. The midwives and doctors were employed by Greater Glasgow Health Board, defenders. The sum sued for is £15,000,000 with interest.
[2] I heard evidence and submissions over 21 days in the period 6 January to 18 February 2015 and then took the case to avizandum. The pursuer’s solicitors emailed my clerk to request that I should not write my judgment pending an application to amend on the part of the pursuer. I heard the motion to amend on 26 May 2015. The object of the proposed amendment was to add a case of negligent failure on the part of medical staff to advise the pursuer’s mother of the risks of uterine rupture during vaginal birth after caesarean section and to re-open the proof. The motion to amend was opposed.
[3] I have already decided to refuse the motion to amend the pleadings; and I have now decided that negligence has not been established and that the claim for damages on the existing pleadings should be refused.
Allegations of negligence
[4] The pursuer’s factual hypothesis is that the maternal uterus ruptured because of prolonged hyperstimulation, the hyperstimulation having been caused by inappropriate augmentation of the labour with syntocinon. Syntocinon is a proprietary synthetic version of the naturally-occurring hormone oxytocin. Synthetic oxytocins are delivered by intravenous infusion. There are two sets of allegations of negligence, a first set directed against the obstetric registrar and the second set directed against the midwifery staff. It is important to note that no case is made against the consultant, Professor Whitfield, for his labour plan. In the written pleadings there is an imperfect match between the averments of fact as to competent practice and the averments of negligence in the sense of failure to exercise ordinary skill and care. In the résumé which follows the averments of negligence are amplified where necessary by reference to the averments of fact to give a sensible reading [closed record 22C—24E; 24E—26D].
[5] The timescale is about eight-and-a-half hours overnight from 1 to 2 March 1992. The pursuer’s mother Valerie Clark was admitted to the labour suite at 19.10 on 1 March. Her womb ruptured at 03.45 on 2 March. Delivery was effected by caesarean section 25 minutes later. The case against the registrar is that he should not have authorised the augmentation of labour with syntocinon at 01.05; that he should have planned to carry out and should have carried out or instructed a midwife to carry out a vaginal examination at 02.00 and, or at latest by 03.05 to assess the progress of labour; and that depending on progress he should either have discontinued the syntocinon infusion and allowed labour to continue or, by implication, he should have proceeded to delivery by caesarean section. It is implied that a decision to go to section made at 03.05 would have effected delivery before the rupture of the womb at 03.45. It is averred that the registrar failed in his duties.
[6] The midwifery case is that the midwife in charge should have provided constant, or regular and ongoing, qualified supervision of the student midwife who attended on Mrs Clark; that, given what was known about the patient and about the effects of syntocinon, the attending midwife should have made a careful record of the strength and frequency of contractions and of the relaxation of the uterus between contractions; and that the syntocinon infusion should have been reduced or stopped and a senior midwife review or medical review requested at 03.05. It is implied that a review requested at 03.05 would have resulted in a decision to terminate the syntocinon infusion or to section; and in the latter event it is implied that delivery would have been effected by caesarean section before the womb ruptured. There is no clear hypothesis in the pleadings as to how labour would have progressed from 03.05 if no decision to section had been made at that time. It is averred that the midwifery staff failed in their duties.
Principal witnesses to obstetric and midwifery care and authors of records
[7] Valerie Clark (48), the pursuer’s mother, gave evidence from recollection about her experience on the labour ward. She remembered the student midwife with dark hair and an Irish accent being with her the whole time. She had no recollection of the student midwife palpating her abdomen. She had no recollection of being seen by any doctor. She remembered “other midwives when they came to give me an epidural top up”. She remembered “them” talking about syntocinon, possibly the student midwife and a senior midwife. Mrs Clark knew what the purpose of syntocinon was because she had had it during her first labour. She remembered being woken from sleep by awful pain in her shoulders. She remembered the student midwife pressing the panic button, other people entering the room running and hearing the words “rupture emergency”.
[8] Joseph Clark (52) is the pursuer’s father. He has worked all his life as a butcher. Mr Clark accompanied his wife to hospital and was with her throughout the labour. He remembered and was able to give some detailed evidence about student midwife Heraghty who attended Mrs Clark. He remembered a “senior midwife” topping up the epidural. The senior midwife said that “Valerie was to get a forceps delivery”. Mr Clark did not remember any other persons in the room until “the panic bells” went off.
[9] Professor Charles Whitfield (64 at the time of his involvement, now 88), had consultant care of Mrs Clark. He held the chair of obstetrics with the time-honoured title of Professor of Midwifery in the University of Glasgow. He did not give evidence: but much evidence was directed to analysing the records made by him.
[10] Janice Baillie (64), became a registered general nurse [RGN] in 1971 and qualified as a midwife [RM] in 1977. She left midwifery in 1993 to have a family and returned to general nursing in 2004. On the night of 1—2 March 1992 Mrs Baillie was a G grade sister midwife, the senior sister midwife on duty in the labour ward at the Queen Mother’s Hospital. There were three sister midwives on duty that night, the others being sister midwife Marjory Miller and sister midwife Agnes Kasule, both now deceased. The other two sister midwives attended on Mrs Clark during the night in the labour suite. Sister midwife Miller is documented as attending at 00.10; and sister midwife Kasule is documented as attending at 00.30 and 01.00. Mrs Baillie was called as “a witness to fact” for the pursuer. She was first contacted about the case in October 2014. She had no recollection of Mrs Clark’s case. She gave evidence about Valerie Clark’s labour with reference to the records. The records show that sister midwife Baillie attended at around 02.50 on 2 March 2015 to top up the epidural anaesthetic. The records also show that sister midwife Baillie made an entry in the progress notes at 03.46: “Acute fundal pain and shoulder tip pain [foetal heart rate down] Dr Umstad called.” Mrs Baillie was not entirely confident in her evidence about proper midwifery practice given the time lapse since she last practised as a midwife. She gave evidence from recollection about the set-up of the ward and the staffing arrangements.
[11] Marjory Miller, now deceased, was one of the sister midwives on duty. She was a G grade sister midwife. Her comments were sought by the defenders in 2003, it may be in the course of an information-gathering exercise prompted by the intimation of claim made on behalf of the pursuer in January 2003. Ms Miller’s letter of 5 December 2003 was put in evidence [7/8]. The letter states that the writer has “no recollection of this patient and the course of events”. The letter states that the writer’s only written entry in the progress notes was at 00.10 “when I have documented that the epidural was not effective, I then performed a vaginal examination…” Ms Miller also noted from the case records that she assisted the anaesthetist during induction of the general anaesthetic (prior to sectioning). The letter states that sister Baillie was in charge of the unit; and that it was acceptable for a student midwife to be left to care for the patient “with reference to the sister in charge”. Mrs Baillie testified that Mrs Clark was Mrs Miller’s patient on the basis that the only midwife-initiated vaginal examination of Mrs Clark was conducted by sister midwife Miller.
[12] Kathleen Heraghty MA, RGN, RM, born 3 March 1965, now deceased, was the student midwife who attended on Valerie Clark from 22.10 on 1 March 1992 to 03.50 on 2 March 1992. She held an MA from the University of Glasgow and in 1990 qualified as a registered general nurse at Normanby College, King’s College Hospital [KCH], London. She achieved the position of staff nurse at KCH. She commenced training as a midwife at Glasgow East College of Nursing and Midwifery and Queen Mother’s Hospital in August 1991 and completed her training in February 1993. On 2 March 1992 she was in the middle of the second block of three clinical blocks on the labour ward. She had done six weeks on the labour ward and would go on to do another seven weeks. She emigrated to Australia in 1993 at the age of 28. On 28 December 2013 she was killed by a hit-and-run driver while cycling with her husband on a public road. At the time of her death Ms Heraghty was working as a hospital midwife. Her husband was a senior obstetrician in the same hospital. Ms Heraghty left three teenage children.
[13] Marian McKendry (61) SRN, RM, BA (nursing studies), MA (midwifery), diploma in clinical teaching, gave evidence for the defenders about Kathleen Heraghty’s training and about the organisation of the labour ward. In 1984, after eight years as a midwife at the Queen Mother’s Maternity Hospital where she rose to be a sister, Ms McKendry transferred to clinical teaching. From 1984 to 1990 Ms McKendry was a clinical midwifery teacher at the Queen Mother’s Hospital. In 1990 Ms McKendry moved into classroom teaching in various institutions, latterly at Glasgow Caledonian University. She retired in 2014. Ms McKendry remembered the late Kathleen Heraghty as a very good student, direct and confident but not over-confident. Ms McKendry was Kathleen Heraghty’s personal tutor. On 2 March 1993, she completed and signed Ms Heraghty’s “Completion of Training Report” commenting:
“Kathleen appeared highly motivated throughout her midwifery training… her marks consistently above average…. All clinical reports were excellent, indicating a high standard of midwifery care… Kathleen was an outstanding student who displayed excellent interpersonal and communication skills.”
Ms McKendry testified that Ms Heraghty would have been debriefed about the uterine rupture although Ms McKendry now had no recollection of the debriefing or of Ms Heraghty’s reaction.
[14] Dr Alastair Milne (64), MB ChB, MA, FRCS Ed, FRCOG gave evidence as a skilled witness for the pursuer. Dr Milne is a retired consultant obstetrician and gynaecologist. He specialised in obstetrics and gynaecology from 1972—1973. His research interest from 1974 to 1980 was in the respiratory response to pregnancy. He held research fellowships with the Scottish Home and Health Department and at the University of Washington, Seattle. From 1977 to 1980 he was lecturer in obstetrics and gynaecology and honorary senior registrar in the University of Cambridge. His first consultant appointment was in 1980 at Elsie Inglis Maternity Hospital and Bruntsfield Hospital, Edinburgh. From 1987 to 1998 he was a consultant at the Eastern General Hospital, Edinburgh. From 1998 until his retirement on 31 December 2013, Dr Milne was a consultant in obstetrics and gynaecology at the Royal Infirmary of Edinburgh/ Simpson Memorial Maternity Pavilion at the Lauriston Place site and afterwards at the Little France site. He continued teaching undergraduates and supervising post-graduates until 31 December 2014. During the 1980s Dr Milne served on several committees of the Royal College of Obstetrics and Gynaecology [RCOG]. According to his curriculum vitae his main area of clinical activity was gynaecological surgery with a special interest in urogynaecology. In oral evidence Dr Milne stated that he had no antenatal commitments after 2010 but continued to have two labour ward sessions a week as well as a commitment to emergency obstetric surgery. Dr Milne was first instructed for a report in October 2002.
[15] Dr Heather Whitford (52), BN, MM, RGN, RM, PhD gave evidence as a skilled witness for the pursuer. Since 1997 Dr Whitford has been a midwifery lecturer in the University of Dundee, Ninewells Hospital, Dundee. Dr Whitford graduated in nursing at University of Glasgow and qualified as a registered general nurse [RGN] in 1984. She became a registered midwife [RM] in 1986. She practised midwifery on labour wards until 1992 and as a community midwife from 1992 to 1997. Her last clinical midwifery post, in 1991—1992, was as a staff midwife at Arbroath Infirmary. Oxytocics were not used at Arbroath in 1992. Patients recommended for oxytocics were transferred to Ninewells Hospital, Dundee. Dr Whitford was first instructed for a report in October 2004.
[16] Dr Mark Peter Umstad (53), MB, BS, MD, FRANZCOG, FRCOG is an Australian obstetrician. He was the on-duty registrar overnight on 1¾2 March 1992. He gave evidence for the defenders. Dr Umstad presents as a super expert in intrapartum foetal monitoring. In 1992 he came to Queen Mother’s Maternity Hospital for twelve months to complete his doctorate in foetal monitoring. The Queen Mother’s Hospital was one of the two centres of excellence in foetal medicine in the United Kingdom at the time. Although already a senior registrar of two years standing Dr Umstad accepted junior status in order to work with the foetal medicine specialists at the Queen Mother’s Hospital. While at the Queen Mother’s Hospital he worked 60—70 hours a week on the labour ward. He reviewed thousands of CTG traces (see below) and thousands of blood gas samples for foetal acid base status. He was appointed a consultant at the Royal Women’s Hospital, Melbourne, on his return to Australia in 1993. He pioneered foetal monitoring manuals for midwives and obstetricians in Australia, his publications in this field including The Royal Women’s Hospital Fetal Monitoring Manual 1st—4th edns (Melbourne 1990—1998). For the past fifteen years his special interest has been in high risk pregnancies, multiple pregnancies and miscarriage. Dr Umstad came from Australia to give evidence. He was interposed of consent on days 5 and 6, between the pursuer’s witnesses Dr Milne and Mrs Clark, before Dr Whitford gave evidence. Dr Umstad had no recollection of the events except for his memory of hearing a scream from Mrs Clark’s room and rushing to her bedside. He immediately assumed that there had been a rupture: left shoulder tip pain indicated blood in the abdomen irritating the underside of the diaphragm. Having ascertained that vaginal delivery was not possible at that stage he prepped the patient for caesarean section. He remembered repairing the rupture. His evidence of the events was otherwise based on the records and his usual practice at the time. He inferred that he had come on duty at 22.00 on 1 March 1992. I accept that he was continuously present and available on the ward overnight.
[17] Professor Deirdre Murphy (49) MB BCh, BAO, BA, MSc, MD, FRCOG gave evidence as a skilled witness for the defenders. Professor Murphy presents as an obstetric expert of the highest standing whose areas of special interest include vaginal birth after caesarean section. Professor Murphy holds the chair of obstetrics and heads the department of obstetrics in Trinity College, Dublin. She practices as a consultant obstetrician and is the lead clinician for the labour ward, Coombe Women and Children’s Hospital, Dublin. In the period 1990 to 1996 she was successively: senior house officer, Combe Women’s Hospital and St James’ Hospital, Dublin; senior house officer, John Radcliffe Hospital, Oxford; clinical research fellow, National Perinatal Epidemiology Unit, University of Oxford. Other posts held include the chair of obstetrics and gynaecology and head of department, University of Dundee (2002—2006) and member of the scientific advisory committee, member of the standards board, chair of the guideline and audit committee, all of the RCOG, London (2004—2007). As chair of the RCOG guideline committee she had responsibility for Birth after previous Caesarean Section, Green-top Guideline No. 45 (RCOG press, London, 2007). The select list of publications which forms part of her abbreviated curriculum vitae includes more than half a dozen journal articles relevant to the issues of vaginal birth after caesarean section [VBAC] and uterine rupture. Given her experience and training duties, Professor Murphy professes herself competent to opine on the appropriate standards in both midwifery and obstetric practice.
My impression of the skilled witnesses
[18] All the skilled witnesses were impressive in different ways. I found both Dr Milne and Dr Whitford to have a reassuring manner, apparently competent and empathetic. Dr Milne is to be complimented for his close analysis of the CTG trace (see below) which largely set the agenda. On the whole his analysis of the trace was balanced. If there is a criticism to be made of Dr Milne’s evidence in other areas, it is that he tended to over-interpret the material taking advantage, as I saw it, of hindsight. Dr Milne appears not to have the same level of intensive obstetric expertise as Professor Murphy. Dr Heather Whitford’s careful examination and explanation of the ante-natal and labour records in her report was helpful. She was at a disadvantage as a skilled witness in that she did not achieve G grade as a labour ward sister midwife and has had no routine clinical experience since 1992. Dr Umstad impressed for his technical expertise. Professor Deidre Murphy is a practised skilled witness and an obstetric expert, academic and clinical, of the highest authority. She also has a special interest in the subject-matter of the present dispute. There were passages in cross-examination when I judged her evidence to be defensive, unnecessarily prolix or unduly robust. Professor Murphy was at a disadvantage in that she apparently committed to a view, in her report, on the rate of contractions without having a readable copy of the CTG trace. To be fair what her report actually states is [my emphasis]: “At no time did the midwife record contractions at a rate greater than 4 in 10 and in the interval immediately prior to the rupture the contractions were no more than 3—4 in 10.”. In oral evidence Professor Murphy conceded, looking at an enhanced copy of the CTG trace, that there might be other interpretations of the rate of contractions. She continued to maintain that there was no evidence of uterine hyperstimulation, meaning contractions at a rate of more than five in ten minutes, which ultimately I accept. Overall, having weighed all the evidence, I have tended to rely on her interpretations and opinions.
Labour ward organisation
[19] There were between 200 and 400 deliveries a month on the labour ward. The ward had seven individual labouring rooms, one five-bed recovery room, one two-bed room and two intensive care beds or possibly two intensive care beds in one room. I got the impression that there were operating theatres on the same floor but I may be wrong about that. During the night shift there were two senior house officers and one registrar on duty on the ward. A senior registrar was on call. A minimum of two sister midwives would be on duty with two staff midwives and three to four student midwives of varying experience. On the night in question three sister midwives were on duty. State registered nurse trainees, like Kathleen Heraghty, were counted and allocated in staffing rotas. There were indications that the ward was busy on the night of 2—3 March 1992. The maximum capacity of the ward was fourteen patients.
[20] The evidence raised an issue about midwife-patient allocations and an issue about the responsibility for supervision of student midwives. These issues were not fully resolved. Mrs Baillie inferred that sister midwife Miller had particular responsibility for Valerie Clark by virtue of the fact that it was sister midwife Miller who conducted the vaginal examination at some point after 00.10. It is best practice for sequential examinations to be done by the same attendant; and a possible implication is that sister midwife Miller would have carried out further examinations as required. If that were the case then sister midwife Miller would have had responsibility for supervising student midwife Heraghty in her attendance on Mrs Clark. Mrs Miller’s view, expressed in her letter of 2003, was that sister midwife Baillie, as the senior midwife on duty, had responsibility for supervising student midwife Heraghty. Mrs Baillie stated that the senior midwife’s role was one of supervision by which she meant supervising all staff and mothers generally. If the ward were busy she might have to sit with patients. Mrs Baillie thought that she, Mrs Baillie, attended at about 02.50 to top up Mrs Clark’s epidural anaesthetic simply because she was available. The records do not assist on this point. There is no entry showing the midwife-patient allocation. There are no entries showing that a senior midwife “popped in” from time to time to check. I think Ms McKendry suggested that if the student midwife kept her records correctly a supervising senior midwife would not leave a note of a supervision attendance. There was a hint in Mrs Baillie’s evidence that this might have been so. Ms McKendry stated that very junior student midwives would be supervised closely. Later in training student midwives would be supervised from a distance, knowing they could call for help at any time. With the passage of years it is simply impossible to say what informal checking might or might not have been going on. Mr and Mrs Clark are not in a position to help. They cannot recollect a number of well-documented attendances by staff. Subject to the question of supervision there was no criticism of the practice of having a student midwife in attendance at the bedside. Mrs Baillie stated that a student midwife would not be on night duty unless she had previous labour ward experience during day shifts.
The labour ward records
[21] The principal labour records put in evidence are the progress notes, the partogram and the cardiotocograph trace. Much of the discussion was about the relationship between these records.
Progress notes
[22] The progress notes are a single, sequential record of observations and interventions made by both midwifery and medical staff. The notes also include instructions.
Partogram
[23] The partogram is designed to present an at-a-glance, graphic or substantially graphic record of the progress of labour and the health of the foetus. The partogram used in Scottish maternity units at the time is a card folded book-wise. It opens out to show a pre-printed form. The form is designed to be filled and read portrait-wise. The form measures approximately 35 cms top to bottom and 20 cms in width. There are nine rows of gridded sections or tables. The tables are all set against the same horizontal time scale half-way down the form. The tables are gridded differently according to the data to be recorded. Reading from top to bottom the tables are designed to record (1) foetal heart rate, (2) foetal Ph, liquor and moulding (of the foetal skull), (3) dilatation of the cervix and descent of the foetal head, (4) frequency of contractions per ten minutes half-hourly, (5) time scale in hourly intervals, (6) oxytocics, (7) drugs and IV fluids, (8) blood pressure and pulse and (9) urine output metrics including protein, acetone, glucose and volume, and temperature. The partogram is filled by the attendant midwife or midwives.
[24] It is conventional, though not universal, to express the contraction rate in contractions per ten minutes. The partogram table for frequency of contractions per ten minutes is divided into half-hourly columns scaled vertically in five rows creating five cells in each column for up to five contractions per ten minutes. This is consistent with other evidence that the “normal” maximum contraction rate is five in ten minutes. (There was a suggestion in Professor Murphy’s evidence that the physiological limit is eight contractions in ten minutes.) I am aware that there are can be conventions for filling the contraction cells with different shading to show the strength of contractions. Indications of strength may be given, for example, by dots, hatching, cross-hatching to give a progressively more solid appearance as mild, moderate and strong contractions are recorded. This was alluded to by Dr Whitford. No shading convention was followed by any of the midwives involved in this case. The cells were simply hatched.
[25] Contractions of the uterus are assessed clinically by the attendant palpating the maternal abdomen. I infer that it is normal to fill the contraction cells on the basis of clinical assessment rather than by reading from the cardiotocograph trace (see below). The partogram contraction table is gridded, as I have indicated, for completion half-hourly. The evidence does not expressly resolve the issue whether the partogram contraction columns are meant to be filled to give a snapshot on or about the hour and the half-hour marks or a snapshot at some time during each half-hour period or to show the average for each half hour period. If the regularity and frequency of contractions varies, as it can do, it is immediately obvious that filling cells to show the rate per ten minutes in a thirty minute period, during which there are three sequential periods of ten minutes, must involve some kind of generalisation. I gather from the evidence in this case that it is impractical for the attendant to sit for hours on end with his or her hand on the maternal abdomen counting contractions and then averaging the sum every half hour, on the half hour, to express the result for the previous half hour in the conventional formula. Dr Whitford negatived the idea that the attendant is meant to palpate for thirty minutes and divide by three to arrive at the average ten-minute partogram value. She also thought that it was unlikely that an attendant would palpate for even ten minutes uninterrupted. She thought the likeliest way was to time the interval between contractions, from onset to onset, by palpation, and to extrapolate. This, she suggested, was much the likeliest way that partogram figures were arrived at. Dr Umstad, in passing, gave support for this understanding of how the partogram is filled. It is immediately obvious that if the regularity and frequency of contractions varies the extrapolation method may give unrepresentative results. Dr Whitford described the partogram as a crude pictorial record: she would expect to find the detail in the progress notes.
[26] Do the documents themselves assist in knowing what points in time or periods of time are represented by the contraction columns? Student midwife Heraghty took over care of Mrs Clark just after the shift changeover which occurred at 22.00 on 1 March 1992. She made her first entry in the progress notes, “Care taken over...” at 22.10 and signed it. She apparently filled twelve columns of contraction cells in the partogram, each, on one possible view, representing a half-hour period. On this view she filled cells representing altogether six hours of the labour. The first column she filled starts at the 22.00 mark. If the first column she filled was meant to show the contraction rate in the period 22.00—22.30 it follows that the last column she filled was meant to show the rate in the period 03.30—04.00. Since the labour was interrupted by the emergency at 03.45 this is not a satisfactory interpretation.
[27] The likeliest reading is that the partogram contraction record tends to represent snapshots assigned to the nearest hour and half-hour marks. This can be tested by looking at the occasional entries of contraction rates entered in the progress notes. This is on the assumption that if the attendant counted contractions at a certain point in time the same data would be used both for the entry in the partogram as well as for any entry it was thought appropriate to make in the progress notes. To take one example, at 22.10 student midwife Heraghty made her first entry in the progress notes. The entry recorded: “2 in 10 moderately”. The partogram column filled between the 22.00 and 22.30 marks also shows 2/10, that is two cells are hatched.
[28] There is a more difficult example around 01.00. Between the marks 00.30 and 01.00 the column is filled to show contractions running at 02/10, that is with two cells hatched; and between the next marks 01.00 and 01.30 the column is filled to show contractions running at 3/10, that is with three cells hatched. There is no entry in the progress notes. In evidence Dr Milne read the partogram as representing that contractions were running at 2/10 in the period 00.30—01.00 when the cardiotocograph trace (see below) showed, on his interpretation, contractions running at 3—4/10. On the oral testimony of Dr Whitford and Dr Umstad the partogram entry 3/10 probably refers to the contraction rate at around 01.00 based on palpation during a period of some minutes up to 01.00. This is consistent with the unanimous reading of the cardiotocograph trace (see below) for the period 00.50—01.00, namely 3/10. I find that the reading of the partogram offered by Dr Whitford and Dr Umstad is to be preferred. I find that the partogram should not be read as representing the average rate of contractions per ten minutes for each 30 minute period between successive hour and half-hour marks, half-hour and hour marks. There are further examples supporting my conclusion below.
Cardiotocograph
[29] Cardiotocograph [CTG] signifies a graphic record of the foetal heart rate [FHR], which is the “cardio” element, and of simultaneous uterine activity [UA], which is the “toco” element. The record is produced by an electronic CTG machine and is presented on one side of a single, continuous, paper strip chart about 15 cms wide with separate and parallel traces. The traces are marked against the same time scale. The time is printed at ten-minute intervals. Foetal heart rate is recorded on a pre-printed chart marked from 30 to 240 beats per minute. This is the top half of the strip. Uterine activity is recorded on a parallel pre‑printed chart on the bottom half of the strip. The chart is marked for pressure from zero to 100 millimetres of mercury and from zero to 12 kilopascals. As in a computer printer, there is a short time-lag between printing of the trace by the print head and the emergence of the trace from the machine, meaning that the trace cannot be read immediately. The trace was set to spool from the Corometrics CTG machine used in this case at the rate of one centimetre per minute and folded concertina-style into a collecting tray below. The speed was spoken to by Dr Umstad and is printed on the trace as “TOCO 1CM/MIN” each time the machine is started or re-started. Something said by Dr Whitford implies that ten to fifteen minutes-worth of trace might be visible emerging from the machine before the trace folds into the tray. The complete labour ward trace for Mrs Clark’s labour, from 19.20 in the evening to 03.50 in the morning, is five metres long. Between two and three metres of the trace were pored over by the witnesses in court. I gather that it can be impractical in a clinical setting to look back over metres of trace. There was evidence that the CTG machine has a real-time, beat-to-beat digital display of the FHR. I suspect that the CTG machine in question has a real-time digital display of relative uterine activity but there was no evidence of this.
[30] In this case the FHR data for the critical period was transmitted to the CTG machine from a foetal scalp electrode. The scalp electrode was fixed during the vaginal examination at 21.50 on 1 March. From that time the annotation “FECG”, presumably signifying foetal electrocardiograph, is printed on the trace. The evidence suggests to me that UA traces were developed historically as an adjunct to FHR traces and exist principally to show the relationship between uterine activity and changes in FHR. Both FHR and UA traces produce artefacts, typically when there is maternal movement or re-positioning.
[31] The UA data was collected by an external transducer or “tocodynamometer” positioned with an adjustable elastic belt on the maternal abdomen. Actual pressure monitoring by intra-uterine pressure catheter is not practised in the United Kingdom. The pre-printed pressure scaling of the UA strip chart is designed for internal monitoring and gives a spurious impression of precision when external monitoring is in use: external monitoring allows at best an understanding of the frequency of contractions and, possibly, of the relative pressure of contractions as compared with intervals of relaxation.
[32] Factors which affect the performance of UA recording with an external transducer include, on the evidence available in this case, the positioning of the transducer, re‑positioning of the transducer, the tightness of the belt, the amount of abdominal fat, the position and movement of the patient. I infer that the tocodynamometer picks up movement, specifically changes in the contour of the abdomen resulting from tightenings or hardenings of the uterus. Abdominal fat reduces the effectiveness of the technology. Mrs Clark was over-weight, weighing 74.2 kgs (11 st 9 lbs) at booking. Her height was 1.63 m (5 ft 4 ins). She had a body mass index of 27.9, above average (20—25). On Professor Murphy’s evidence, not all tightenings are contractions. Tightenings are signified by “peaks” in the trace. Periods of relaxation are represented by the UA trace baseline. I deduce that the baseline can establish or re-establish itself at any level on the chart. I reject Dr Milne’s view, expressed at one point, that the UA trace baseline represents an absolute value.
[33] A lot of the evidence was about identifying and counting the contractions on the UA trace. There were different ways of expressing the results. Dr Whitford’s report contains a table showing the average number of contractions per ten minutes for each 30 minute period, that is from each hour mark to the next half-hour mark; from the half-hour mark to the next hour mark, and so on. This approach allows some sort of comparison to be made with the partogram. Dr Milne gave oral evidence about the number of contractions in each ten minute segment of the trace, using the time marks on the trace, for example from 00.00 to 00.10, from 00.10 to 00.20, from 00.20 to 00.30, and so on. As pursuer’s senior counsel put it there is something “synthetic” about this approach: but I think it is the easiest way of looking at the UA trace.
[34] There was debate about how to count features on the UA trace which came to be known in evidence as “twin peaks”, that is two peaks, relatively close, with the saddle between not falling to the baseline established on either side. There are examples are at 00.35 and 01.51. According to Dr Whitford such “double” contractions may be characteristic of the foetal head being in the occipito-posterior position—as it may have been in this case—and pressing on the cervix. In evidence Dr Milne tended to count “twin peaks” as two contractions, while Professor Murphy tended to count them as one. Dr Whitford stated that “you could argue till the cows come home” about how to count “twin peaks”.
[35] There is also an issue about a recurring, notation on the UA trace, in the margin between the UA trace and the FHR trace, as printed out by the CTG print head during Mrs Clark’s labour. The notation in question “UA REF” occurs from time to time, sometimes in “clusters”. All the experts agree that “UA REF” signifies a re-setting of the UA baseline. The question is whether this was a manual function (operated by the attendant), or an automatic function, or possibly both. Dr Whitford was the only witness who attempted to investigate the matter by looking for operating instructions for the Corometrics machine likely to have been in use, for which she is to be complimented. She was unable to be definite but she inclined to think that the “UA REF” notations in this case represent a manual re-setting of the uterine activity pressure reference. Dr Umstad seemed to be reasonably confident from recollection that the machine used at the time had both automatic and manual re-set functions. When looking at a length of trace with “UA REF” notations he described the CTG machine as “re-setting itself”. Professor Murphy suggested that the re-settings reflected the student midwife re-positioning the tocodynamometer on the maternal abdomen in an attempt to improve the quality of UA readings. Having pondered the evidence I conclude that the majority of “UA REF” notations represent automatic re-settings, as will be explained below. This is something which bears on the competence of the student midwife who was in attendance.
[36] Evidence from Dr Milne about the CTG was led initially with reference to the copy trace no. 7/2 of process. This soon ran into difficulty because the trace is so faint on that copy. For example, the “UA REF” at 00.37 is invisible on my version of no. 7/2. From lunchtime on day 3 of the proof, 8 January 2015, an enhanced copy no. 6/81 was used. It was suggested by Professor Murphy that what the attendants saw spooling from the machine on 1 and 2 March 1992 would have been much fainter than the enhanced copy no. 6/81 of process, more like no. 7/2.
[37] Clinicians and midwifery staff used the CTG strip chart to make handwritten notes of interventions and events, primarily but not exclusively interventions or events which bear on the interpretation of the trace. For example, the trace between 01.00 and 01.10 on 2 March has a scribbled note “01.05 SYNTOCINON COMMENCED 3.3 MU”. The manuscript annotations on the CTG trace are relevant to the determination of the issues in this case.
Obstetric history and the labour plan
[38] The pursuer’s parents are Joseph Clark and Valerie Clark. Mrs Clark was delivered of the couple’s first child by emergency lower uterine segment caesarean section [LUSCS or LSCS] on 3 January 1990. The first child is Fiona Clark, now a healthy adult with a child of her own. Mrs Clark was admitted by arrangement post-dates for induction of labour. The labour was induced and augmented by the administration of syntocinon. There was debate in the evidence as to why labour was abandoned for sectioning. The better view in my assessment is that labour was abandoned because progress was slow, pain control by epidural anaesthetic was ineffective and there were indications of foetal distress. It is not the case that labour arrested because of cephalo-pelvic disproportion. It is relevant to note that the labour was cut short before Mrs Clark entered the second, pushing stage. As Professor Murphy explained the management of first births on the one hand and second and subsequent births on the other hand is different: when considering the literature it is incorrect to apply multigravida guidelines without qualification to Mrs Clark’s case.
[39] The discharge letter of 26 February 1990 stated [7/1/93]:
“… A lower segment Caesarean section was carried out because of a combination of dystocia, persistent occipitoposteritor position and a poor response to induction of labour… The cervix was unfavourable at the time of induction. She had an epidural in labour and Oxytocin infusion was used. After rather a long labour the cervix only reached 4—5 cm dilatation, caput and moulding were present and the baby was in the occipitoposterior position. The CTG showed variable decelerations… The patient was reviewed in the Clinic at 6 weeks… Clinical examination was normal and her pelvimetry report showed a slightly reduced inlet and outlet so that management in her next pregnancy will depend upon both the size and position of the baby as well as the presence or absence of other risk factors.”
The letter was written by Dr Karl Murphy who was registrar to the consultant, Professor Whitfield. I take Dr Murphy’s reference to “dystocia” to mean uncoordinated and ineffective contractions. The record of the first labour was looked at in passing in the evidence in the present case. This was a useful exercise from two perspectives: it helped to explain both the plan for the next labour as well as the clinical decisions made during the next labour; and it gave some concrete context for understanding what is normal and what is abnormal in the progress and management of labour.
[40] In the previous labour the partogram was started with admission to the labour suite at 08.30 on 3 January 1990 and continued to 22.30 on that day, when Mrs Clark was transferred to theatre, a period of fourteen hours. A syntocinon infusion was set up on admission for induction and continued for augmentation. The infusion was adjusted or stopped from time to time depending on the maternal response. At the highest rates of infusion contractions exceeded 5/10: at 13.25 contractions of 7/10 were recorded in the progress notes; and at 17.20 contractions reached 6/10 as recorded in the progress notes with the comment “overstimulated”. On each occasion the rate of infusion was halved. (Halving the infusion rate was in accordance with proper practice as explained by Professor Deirdre Murphy in this case.) Prior to the second reduction, senior registrar approval was sought because of Dr Karl Murphy’s instruction recorded earlier in the progress notes: “Syntocinon not to be turned down except under sister or doctors instructions.” Contractions were recorded on the partogram at 5/10 during the final 150 minutes up to abandonment of the labour for sectioning at about 22.30. For three separate 30-minute periods before that contractions were recorded at 5/10 on the partogram. Towards the end severe maternal distress was repeatedly recorded in the progress notes. The patient was observed to be “hysterical and difficult to control”. The cause was noted as “ineffective epidural”. The indication for the caesarean was noted as: “Dystocia persistent OP position and failed induction.” Dr Karl Murphy made a note of the presentation and position of the baby as observed during the operation: “cephalic presentation; occipitoposterior position head well down in pelvis considerable moulding of head.” Dr Murphy’s operation note concluded with a request for post partum pelvimetry.
[41] Pelvimetry, that is pelvimetry by X-ray, was requested to explore possible cephalo‑pelvic disproportion (foetal head too big for the maternal pelvic apertures). The X‑ray pelvimetry report referred to in Dr Karl Murphy’s discharge letter is dated 10 January 1990. The report is in two parts. The first part of the form is completed in handwriting by the radiologist, Dr (?) Guse. This section is headed “Emergency LUSCS for failure to progress” [7/1/134]. There are seven measurements of which only one attracted specific comment, namely pelvic inlet “contracted—just below lower level advised for vaginal delivery.” The second part has the typed report by the reviewing consultant “NW” [7/1/135]. The typed report reads:
“The sagittal inlet diameters contracted. It measured 10.9 cms, this value is just below the minimum recommended for vaginal delivery. No other diameters are above the minimum recommendation.”
[42] On 16 August 1991 Mrs Clark, now pregnant with Jill, attended for booking of the delivery. Her consultant Professor Whitfield made a note in red ballpoint on the booking sheet:
“Previous LSCS—indication was stated as POP [persistent occipito posterior] and failed induction but Cx [cervix] had reached 5 cm after 12 hours (therefore not failed induction) but ineffective labour. X-ray pelvimetry reveals small measurements but with good uterine action and a not large baby not “impossible” Reassess later (? 38/7 & see X-rays) probably allow labour. à I have reviewed X-ray films & made comment on pelvimetry report. à ●Allow labour but watch for non-rotation of occiput”
The evidence does not state when this undated note on the booking sheet was written. I have set the note out in the order in which it seems to me to have been composed, with the two follow-on arrows which are part of the note as marked above. Dr Whitford has identified another red ballpoint entry—invisible in my copy—apparently made by Professor Whitfield. This note is in the register of ante-natal clinic visits scrawled under the entry for 16 August. The note in question was very probably made at booking on 16 August. It reads: “Get X-rays” [7/1/18]. So, the indications are that the longer note in red ballpoint “Previous LSCS... but watch for non-rotation of occiput” was written in two stages, started on 16 August with an addition on 20 August after comment on the radiology consultant’s pelvimetry report and review of the actual pelvimetry films.
[43] By letter dated 20 August 1991—possibly first dictated as early as 16 August 1991—Professor Whitfield wrote to Mrs Clark’s general practitioner as follows [7/1/8; corrected version 6/5/62]:
“… I reviewed the previous notes about her caesarean section, the indication being slow progress in labour due to relatively ineffective uterine action and associated with a persistent occipito-posterior position. As you know she had an x-ray pelvimetry afterwards, and while this does show that she has a relatively small pelvis I do not consider that the measurements are an absolute bar to a trial of labour at this time. The cervix did reach 5 cm in her previous labour and that usually means that the uterus will function much better next time, and if that occurs and the baby is not overlarge there is a reasonable if optimistic chance that labour and delivery may be normal. I do not think that we should avoid that chance and she and her husband are in complete agreement with that. However I will review the actual X-ray films, and probably carry out a clinical assessment of the pelvis in later pregnancy before making a definite decision…”
I infer from the letter that Mr and Mrs Clark attended the ante-natal clinic together on 16 August 1991 and saw Professor Whitfield then. The letter to the general practitioner was typed before the professor had reviewed the actual films. Clearly Professor Whitfield was unimpressed by the radiologist’s comment and this may have prompted him to review the films personally. After typing, and presumably at the time of signing, the professor corrected a number of errors in the typescript of the letter to the general practitioner. The handwritten corrections appear on the principal version recovered from the general practitioner’s file. There is also a handwritten post script on the principal: “PS I have now seen the X-ray films, & still consider we should allow labour, but intervene (c/section) of course if there is a significant ‘hold-up’. CRW.” This ties in with the notes on the pelvimetry report.
[44] Professor Whitfield’s handwritten notes on the pelvimetry report take issue with the consultant radiologist’s comment on “minimum recommended” pelvic dimensions. The notes read as follows:
“Whose recommendation? CRW
Straightish sacrum with only mildly divergent lateral bore. These two features could well militate against anterior rotation of the occiput deep in the pelvis, but given good uterine action (to be expected since she reached 5 cm dilatation in 1st labour) and a not overlarge fetus especially if it becomes occipito-anterior early in labour (1st baby weighed 3.18 kg) a good labour & vaginal delivery is possible CRW 20.8.91”
The first part of the note just quoted was possibly written before review of the actual films. The second part is dated and was definitely written on 20 August 1991 after review. After the booking visit there were eight more ante-natal attendances at the hospital, including four attendances in the period from 1 January 1992. There is no evidence of a review and clinical assessment of the pelvis at “38/7” ie at 38 weeks or “in later pregnancy”. I conclude that the note on the booking sheet for 16 August 1991 “Reassess later (? 38/7 & see X-rays) probably allow labour” was superseded by the addition made, I deduce on 20 August 1991, after review of the actual films: “Allow labour but watch for non-rotation of occiput”. Thus the labour plan was made.
[45] My finding is that the registrar on duty on the night of 1—2 March 1992, Dr Umstad, correctly understood that the professor recommended making a good attempt at vaginal delivery. This is implied by the professor’s caveat: non-rotation would not otherwise be an issue; and rotation from the anticipated occipito-posterior position would take place, if it were to take place, with the head “deep in the pelvis”. I accept Dr Umstad’s evidence that the proper course was to aim for effective uterine activity, “good uterine action” as the professor put it, for the purpose of promoting descent and rotation. I accept that persisting malposition deep in the pelvis is more likely to arise with sub-optimal contractions. In the previous labour there was ineffective uterine action despite frequent contractions.
[46] Professor Whitfield was co-editor of the textbook which contains a chapter founded on by the pursuer. The passage put in evidence advocates the “judicious and controlled” use of syntocinon with the object of simulating spontaneous labour, going on to state: “… there is no absolute reason why Syntocinon should not also be used to assist with the planned delivery of a woman with a lower segment scar”, so long as maternal welfare is carefully monitored (reference below). It was common practice in the Professor’s unit to augment contractions with infusions of syntocinon for the purpose of achieving effective uterine action. In these circumstances I attach importance to the fact that Professor Whitfield made no negative comment about the use of syntocinon for Mrs Clark’s labour. Of course the post script on the letter dated 20 August 1991 sent to the general practitioner was not available to Dr Umstad: but it is consistent with Dr Umstad’s interpretation of the Professor’s thinking. Dr Umstad well understood that there was a chance that labour would not progress because of malposition, that there was a consequent risk, and that the outcome might be delivery by caesarean section: at 21.50 on 1 March blood was taken from Mrs Clark for cross-matching, “group and save”, and an intravenous line was inserted. I reject Dr Milne’s characterisation of Professor Whitfield’s notes as a “warning”. It was certainly not a warning of the risk of rupture as such although the risk of rupture was implied, something that Dr Umstad understood without being told in terms.
[47] On my understanding of Professor Deirdre Murphy’s evidence, the emergency happened after the primary risk point identified by the radiologists but before the risk point highlighted by Professor Whitfield. By the time Dr Umstad became involved at 22.35 on 1 March 1992, the foetal head was already engaged so that any concern about the pelvic inlet measurements had been superseded. As Professor Murphy explained it, Professor Whitfield’s caveat refers to a point in the descent where the vertex, still in occipito‑posterior or occipito-anterior position, reaches the area of zero to plus two, that is the area between the ischial spines and two centimetres below the ischial spines, “typically where rotation takes place in the second stage”. Before the vertex reached that station, the uterus ruptured and the labour was cut short. This happened before “non-rotation deep in the pelvis” could become an issue. On the pleadings this is not a case about obstructed labour. Dr Milne accepted in evidence that this is not a case of obstructed labour. Dr Umstad’s testimony that there were no features of an obstructed labour in this case was not seriously challenged. Professor Murphy insisted on a distinction between “obstructed labour” properly so-called and failure to progress commonly caused by ineffective uterine activity. I reject the pursuer’s submission that Professor Whitfield’s note was an “imprecation to look for rotation of the occiput early in labour” [emphasis added, written submissions for pursuer, 5].
[48] When the presenting part is the foetal head (cephalic presentation), as in this case, normal practice is to allow a trial of labour. The favourable position for delivery is occipito‑anterior, that is when the occiput or crown of the foetal head is to the mother’s front. Where the head engages in an occipito-posterior or occipito-transverse position, rotation to the favourable position tends to occur thanks to the configuration of the pelvis and with uterine action as the head descends. Where rotation does not occur spontaneously it may possibly be accomplished by other means. Dr Umstad envisaged the possibility of instrumental vaginal delivery in the event of non-rotation in this case: he came to Glasgow with the experience of having accomplished 270 Kielland’s forceps deliveries. In this connection I should mention Mr Clark’s recollection that when the senior midwife—sister midwife Baillie—was in the room—he thought about ten to fifteen minutes before the emergency—there was some discussion about Mrs Clark “getting a forceps delivery”. This suggests to me that the midwifery staff were aware, as they should have been, of the terms of Professor Whitfield’s ante-natal note including the caveat about “non-rotation”.
[49] When Mrs Clark was admitted the position was assessed to be “occipito-transverse”. The progress notes record the position as OP [occipito-posterior] at 15.30, 18.40, 19.10, presumably assessed by abdominal palpation. It may be possible depending on the station of the vertex and the degree of caput or swelling to gauge the position of the head by palpating and identifying the fontenelles, anterior and/ or posterior, vaginally. No recorded assessment was made of the position of the occiput after artificial rupture of the membranes during the vaginal examinations at 21.50 and 00.10. No recorded observation was made during the caesarean section. The paediatric notes, which may have had observations of the state of the scalp and skull in the hours after delivery offering insight into the question of arrested progress in labour or otherwise in the period up to the rupture, were not put in evidence.
[50] The size of the foetus was assessed antenatally as average. It transpired after delivery that the pursuer was a large baby weighing 3.88 kilograms (8 lbs 9 ozs). With hindsight it seems that spontaneous vaginal delivery would have been unlikely though not impossible. At the time this was not known and no fault attaches. For completeness, I must record that all of the expert evidence given in this case is to the effect that since 1992, in the absence of some pelvic pathology, X-ray pelvimetry has been discredited as a tool for managing labours because of its poor predictive value.
Vaginal birth after caesarean section [VBAC] and syntocinon
[51] Professor Murphy’s report contains the following overview [paragraph 8.2]:
“It is recognised that there is an increased risk of uterine rupture in association with a previous caesarean section and that the risk is greater following an attempted vaginal delivery compared with a planned, elective caesarean section [references]. The actual risk for an individual woman is very low (rate 3.5 per 1,000 for VBAC versus 1.2 per 1,000 for elective caesarean) [references]. Vaginal birth is not contraindicated following a previous caesarean section and there is a consensus view (within the US and the UK) that it should be encouraged in terms of limiting escalating rates of caesarean section...”
I accept this. I had earlier sought clarification of the point from Dr Umstad in the following exchange:
“Q If there is a risk looking at it from the patient’s point of view or the person who ends up being handicapped, if there is a risk, why doesn’t one just advise, counsel the patient to go for a caesarean section?—A It’s because of the consequences of the rise in caesarean section rate. And the unfortunate reality is that caesarean section rates have doubled or tripled through the world and caesarean section is an operation that has risks in itself. The risk of maternal death is increased. That usually is a complication of blood clotting or loose products forming embolus. And the most feared obstetric complication is one called placenta accreta or placenta percreta which is directly related to how many caesarean sections are performed. That occurs when the placenta grows into the caesarean section scar. That is a major cause of maternal death worldwide and it’s the most common cause of maternal death in Australia... I believe it’s near the top of the list in the UK. So we do try to avoid caesarean section where possible.”
On the evidence given by Dr Umstad and Professor Murphy in this case I must respectfully distance myself from the view advanced by Baroness Hale of Richmond, a view apparently uninstructed by evidence, that the widespread obstetric ambition for vaginal delivery represents some kind of moral stance [Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63 at paragraph 114].
[52] In the light of the pursuer’s application to amend in the aftermath of the proof I should mention that I offered pursuer’s senior counsel the opportunity to further cross-examine Dr Umstad in relation to birth plan options. Senior counsel for the defender objected on the basis that there are no pleadings to support a case about discussion of risks. I allowed the further cross-examination under reservation. As senior counsel for the pursuer had predicted, the evidence turned out to be uncontroversial. I have rehearsed the evidence in my earlier opinion.
[53] Professor Murphy’s 3.5 per 1,000 figure includes cases of all kinds, spontaneous labours, labours induced and augmented by all methods and labours in units not equipped for emergency sections. What about the specific risk where labour is augmented in vaginal birth after caesarean section [VBAC]? I asked Dr Umstad whether a risk of uterine rupture was envisaged in Mrs Clark’s case. He replied:
“Whenever a VBAC is undertaken there’s a risk, yes. Oxytocin probably increases that risk. On balance I think that it does though some studies would suggest it does not. But in reality it does.”
He stated that the best evidence is from the largest study which suggested the risk of rupture without using oxytocin is 1:200, i.e. 5 per 1,000; with oxytocin the risk is 1:140, i.e. 7 per 1,000; and there is a significant increase, presumably consequential, in the risk of hypoxic-ischaemic encephalopathy, because of rupture, in the children of women who undergo VBAC. Later Dr Umstad explained that he was quoting from the New England Journal of Medicine study published in 1995. (The study was not produced.)
[54] Dr Milne does not contest Professor Murphy’s statistics for the general risk. In his report the only study he quotes on the comparative risk of rupture in augmented VBAC is B Flamm and ors “Oxytocin in labor after previous cesarean section: results of a multicenter study”, Obstet Gynecol 1987 Nov; 70(5): 709-12. Flamm and others reported:
“... no significant differences were found with respect to uterine rupture, maternal morbidity, fetal morbidity or fetal mortality... [T]he risk of true or symptomatic rupture does not seem to be increased by the judicious use of oxytocin.”
In oral evidence Dr Milne contended that the risk of rupture in VBAC is two to three times greater with augmentation as compared with no augmentation. This figure is presumably taken from Royal College of Obstetricians and Gynaecologists, Birth after previous Caesarean Section, Green-top Guideline No. 45 (London, 2007) [7/26] in the summary at page 11: “Women should be informed of the two- to three-fold increased risk of uterine rupture... in induced or augmented labours compared with spontaneous labours.” If the figures are taken from the Green-top Guideline they should be rounded, if I understand correctly, to represent a two-fold increase in associational risk for augmentation as opposed to induction. What the bare statistics do not tell me is whether the oxytocin risk factor includes cases of “injudicious”, inappropriate or excessive augmentation and augmentation by methods other than oxtyocin infusions. Professor Deidre Murphy reports [paragraph 8.7]: “There is no doubt that the use of contraction-inducing agents such as prostaglandin and oxytocin increases the risk of iatrogenic uterine stimulation, with excessive frequency and strength of contractions…” Professor Murphy appears to quantify the risk in the absence of an iatrogenic component as “1 in 500 women”, i.e. 2 per 1,000. By “iatrogenic” I would understand Professor Murphy to mean, to put it shortly, “negligent”.
[55] The proposition focused in evidence by the pursuer is that special care was required when artificially augmenting uterine activity in Mrs Clark’s labour. The proposition is advanced because of the claimed risk of rupture from uterine hyperstimulation. Attempted vaginal birth is known as “trial of labour”, sometimes abbreviated to TOL. The term for trial of labour in VBAC situations was previously “trial of scar”: but this expression has fallen out of fashion. Mrs Clark’s labour was described in evidence as “high risk” without an explanatory definition. I deduce that the risks resided in the scarred uterus with a consequential possibility of harm to the baby and in the possibility of failure to progress and non-rotation, as evidenced in the previous labour, with the concomitant possibility of harm to the foetus.
The literature as evidence
[56] Both sides produced literature on the subject. The literature is meant to have relevance to proper labour ward practice in 1992 and also to the best understanding of the actual risk up to today’s date. Whether or not the rupture in this case was within the ambit of predictable risk is an issue that could bear on causation. A small part of the literature was founded on and adopted in the recommended manner [Davie v Magistrates of Edinburgh 1953 SC 34]. In other instances there was “cherry-picking”, by which I mean that selective quotations were put to witnesses, typically in cross-examination, with uncertain evidential effect.
[57] I offer one example. The defenders lodged as a production a journal article presenting guidelines issued by the Society of Obstetricians and Gynecologists of Canada, “Guidelines for vaginal birth after previous caesarean birth”, SOGC clinical practice guidelines no. 155, International Journal of Gynecology and Obstetrics (2005) 89, 319—331 [7/32]. In cross-examination for the pursuer, Dr Umstad was invited to agree with the third sentence in paragraph 4.3, heading “Maternal monitoring”:
“Women planning a TOL [trial of labor] after Cesarean should have appropriate monitoring in labor. The presence of a devoted birth attendant is ideal. Progress of labor should be assessed frequently, as there is some evidence that prolonged or desultory labor is associated with an increased risk of failure and uterine rupture [references]. Epidural anaesthesia is not contraindicated [references].”
Dr Umstad agreed that “progress... should be assessed frequently”—but in isolation this means little and begs the question: “How frequent is frequently?” Nothing else from the article was directly put in evidence.
[58] There is also uncertainty as to what the court is meant to make of material referenced in expert witness reports in the situation where reports or parts of them are incorporated into oral evidence by adoption, as the whole of Dr Heather Whitford’s report was and as Professor Dierdre Murphy’s report was. At one point it seemed to be suggested that I could check the literature myself and draw my own conclusions. I have skimmed some of the material which was referenced or selectively quoted to get my bearings.
[59] Essentially, as I understand it on the whole material, that is on the evidence properly so-called with home reading of passages not put in evidence, for confirmation, uterine rupture is a very rare complication overall and a very slightly less rare complication of VBAC though not necessarily of VBAC in high volume centres of excellence. It is worth mentioning that the witness Marian McKendry (61) had no experience of a full thickness uterine rupture such as occurred in the present case. She qualified as a midwife in 1975 and worked on labour wards at the Queen Mother’s Hospital for fifteen years as a midwife, staff midwife, sister midwife and clinical trainer before going into classroom teaching, latterly at Glasgow Caledonian University. Given that there were thousands of deliveries each year at the Queen Mother’s Hospital, one inference to be drawn is that VBACs including augmented VBACs were planned and managed with care. The overall rarity makes unequivocal data hard to come by; and, as Professor Murphy implied, it is important not to confuse statistical associations with causal connections.
[60] I gather that differential criteria for filtering the data and assessing the risk include whether admissions are to a low-volume maternity unit or to a well-resourced, high-volume unit with ready 24-hour access to staffed operating theatres for sectioning (such as the Queen Mother’s Hospital); whether artificial agents are used for the purpose of inducing labour or for the purpose of augmenting labour or both; whether oxytoxics or prostaglandins or both are used; whether the previous incision was a transverse lower segment incision or a “T” incision; whether “rupture” includes dehiscence or means complete rupture; the degree of dilatation when infusion is commenced; and so on. The distinctions are important for understanding passages like the following, the first part of which was put in cross-examination [emphasis added]:
“Our results suggest that inducing labor in women with a previous cesarean section significantly increases the risk of uterine rupture. This is consistent with recently published findings... Recent research has reported that inducing labor with vaginal prostaglandin among women with a previous cesarean section confers the highest risk for uterine rupture. Our data source do [sic] not allow consideration of the specific method of induction.”
This is from the Canadian epidemiological study S W Wen and others, “Comparison of maternal mortality and morbidity between trial of labor and cesarean section among women with previous cesarean delivery”, American Journal of Obstetrics and Gynecology (2004) 191, 1263—9 [7/22]. The “recent research” was also referenced in the SOGC guideline no. 155, section 7.2. Section 7.2 is about “Induction”.
[61] Returning then to the SOGC guideline no. 155 and reading into that article, I see that in the separate section 7.1, “Augmentation”, the guideline reviewed three studies on the relationship between augmentation with oxytocics and uterine rupture in VBAC; and that the studies are said to support the conclusion that there is no association or no significant association between exposure to oxytoxics and rupture in VBAC.
[62] On the question of references in expert reports, one of the articles cited in Professor Murphy’s report, in a passage adopted by her in evidence, is her own paper “Uterine rupture” Curr Opin Obstet Gyencol 18: 135—140 (2006) which includes the following:
“Women treated with prostaglandins experienced rupture at the site of the old scar more frequently than those in the oxytocin-only group whose rupture tended to be remote from the old scar.”
The lay person might expect that, if there were to be a causal connection between oxytocin augmentation and uterine rupture in VBAC, the rupture would occur at the scar site.
[63] On the material presented in this case I am not in a position to make a finding about the association between augmentation with syntocinon and uterine rupture in VBAC, still less about the causal connection. The risk normally associated with hyperstimulation of the uterus by augmentation of labour is foetal compromise. There is a well understood causal connection which is relevant to the present case and will be explained below.
The immediate cause of the birth brain injury
[64] In the present case no attempt has been made to relate the rupture to the previous incision and to explain the mechanics in terms of the findings at operation on 2 March 1992. This may be because of a paucity of information. For what it is worth I note the evidence that is available. We know from the operation note of first caesarean on 3 January 1990 that a Pfannenstiel (“bikini”) incision was made; and that the finding at the second caesarean on 2 March 1992 was “uterus torn anteriorly from right angle down to cervix (not extended to lower end of cervix)”. In my state of inexpert knowledge I cannot draw any inference as to the mechanism of the insult to the womb. I have to rely on Professor Murphy’s opinion expressed in broad terms as to the likeliest explanation in principle, namely that as the foetal head rotated and descended into the pelvis it caused the weakest part of the lower uterine segment to give way. She had previously explained that “like any scarred or surgically altered muscle the weak point can give way and rupture [sic]”: but I do not know whether the weak point is the scar or somewhere else. Dr Milne agrees that Professor Murphy’s is the likeliest explanation: but he does not agree, in the absence of direct evidence (presumably of descent and rotation), that this is what actually did happen in this case. The matter is complicated by the fact that the station of the vertex found at operation may not have been the same immediately before rupture while the intact womb still exerted pressure for descent on the foetus. A crucial piece of evidence from Professor Murphy, which is uncontested, is: “The classic appearance on CTG is one of tacchysystole, hugely excessive contractions immediately prior to a fetal bradycardia and subsequent confirmation of uterine rupture.” The classic appearance is absent in this case. I shall return to the question of causation below.
[65] Dr Umstad explained that in 75% of ruptures during labour the foetus survives unscathed. The only explanation as to why injury resulted to the pursuer in this case was offered by Professor Murphy: the rupture caused the placenta to separate so that the foetal brain was deprived of blood supply and therefore of oxygen for 20 to 30 minutes. If the uterus stays partially intact and there is no massive haemorrhage from the site of the rupture, the baby can escape unscathed or relatively so. Sometimes the baby can be delivered vaginally: if that can be accomplished ten minutes or so of hypoxia can be avoided. An issue that was not explored was whether the placenta had grown in to the caesarean scar, placenta previa.
Use of oxytocics in VBAC in 1992: responsible obstetric practice
[66] For the time being it is enough to say that, whether or not there was and is any causal connection, in 1992 there was a perception that augmentation of labour with oxytoxics in VBAC did, or might increase the risk of uterine rupture. The perception is what shaped the practice. In 1992 there were broadly two schools of thought. One school was that syntocinon should not be used in VBAC situations. The other was that syntocinon might be used in a “judicious and controlled” way with the object of simulating spontaneous labour, as advocated in the textbook of which Professor Whitfield was one of the joint editors [6/42, J Beazley, “Maternal injuries and complications” in J Dewhurst and C Whitfield eds, Dewhurst’s Textbook of Obstetrics and Gynaecology for Postgraduates, 4th edn (Oxford, 1986), 421—422].
[67] Both sides in this case accept Professor Sir Sabaratnam Arulkumaran’s text, published in 1995, as an authoritative statement of obstetric practice going back 1992, albeit subject to some interpretation and with certain qualifications. The text is published as a chapter in D James and others, High Risk Pregnancy: Management Options (London, 1995), ch 61, “Poor Progress in Labor including Augmentation, Malpositions and Malpresentations”, 1061 [6/43]. The passage put in evidence is:
“Previous caesarean section
Opinion regarding augmentation if there is poor progress in cases of previous cesarean section or breach presentation varies widely. When there is failure to progress in cases of previous cesarean section, and major disproportion seems unlikely (there is no history of pelvic injury, clinical pelvimetry is normal and the head is no more than three-fifths palpable per abdomen), if contractions are not optimal (frequency less than three in 10 min and active pressures less than [illegible in my copy]) it may be justified to augment labor. The role of intrauterine pressure measurement is this situation is disputed. There are no prospective studies which show an overall increase in scar rupture rate with oxytocin augmentation and yet some clinicians refuse to sanction the use of oxytocin in trial of scar for fear that rupture will occur. On purely logical grounds, it would seem reasonable to augment contractions at least to the average level for spontaneous labor. In practice, augmentation may lead to higher levels of uterine activity than spontaneous normal labor. In addition a substantial proportion of those who fail to make adequate progress in the first 4 h of augmentation need operative delivery, and they are also more susceptible to scar rupture. Thus the period of augmentation should probably be limited to 4 h unless adequate cervical dilatation rates resume. Those who show satisfactory progress can be allowed a further period of augmentation.”
This text was produced for the pursuer and adopted without qualification by the pursuer’s expert Dr Milne. Dr Milne took the text to confirm that augmentation should not be instituted if contractions are more than 3/10 at the point in time when infusion is to be commenced, although the text, as I read it, implies a threshold of 2/10. He took “the average level for spontaneous labor” to mean 4/10; and he understood 4/10 to be the upper limit for the rate of contractions in VBAC, anything higher being hyperstimulation, although this is not stated, certainly not stated in terms. He also took the reference to “adequate progress in the first four hours of augmentation” to imply that progress must be monitored by vaginal examination to ascertain cervical dilatation and the position and station of the vertex within and during that first four hour period rather than at the end of the period. The pursuer also founded on RCOG Green-top Guideline No. 45 (London, 2007) at 11:
“... oxytocin augmentation should be titrated such that it should not exceed the maximum rate of contractions of four in 10 minutes; the ideal contraction frequency would be three to four in 10 minutes [Royal College of Obstetricians and Gynaecologists, Induction of Labour, Evidence-based Clinical Guideline No. 9, London, RCOG Press, 2001]”
This was published fifteen years after the pursuer was born. Dr Umstad dismissed the recommendation, stating that it was based on the lowest evidence level, level IV (see page 16, “Classification of evidence levels”), and stating too that it would have been common practice in 1992 to allow contractions at 4—5/10 in VBAC situations. These points were confirmed in different ways by Professor Murphy in evidence in chief: she stated that frequency (of contractions) had been debated by the RCOG guideline board; and she called the RCOG 3—4/10 guideline a compromise arrived at in the knowledge of rising rates of litigation. Her position was modified in cross-examination. I shall consider the modified position when addressing the question of the period for which contractions of 5/10 might be allowed without reduction of the syntocinon infusion rate.
The maximum acceptable rate of contractions
[68] On the material presented in this case Dr Milne is out on a limb on the question of the maximum acceptable rate of contractions in a VBAC situation in 1992. The pursuer’s own pleadings state: “The maximum number of contractions allowed in any labour is 5 in 10 minutes”; “Midwife [sic] of ordinary skill exercising ordinary care would have turned down the Syntocinon to a rate which kept [Mrs Clark] contracting no more than 4—5 in 10 minutes”; and “The midwifery staff knew or ought to have known that the maximum number of contractions allowed in labour is 5 in every 10 minutes, especially in a woman such as Mrs Clark who has had a previous Caesarean section” [no. 30 of process, closed record (as further amended), lodged on 31/12/2014, 10B—D, 25C—D]. The pursuer’s written submissions mistake the terms of Dr Whitford’s report—Dr Whitford being the pursuer’s midwifery expert—when they represent: “As stated in her report at page 15, para 9.16 she [Dr Whitford] was clear that if one saw a continuing period of 5 contractions in 10 then syntocinon should not have been allowed to persist at that level.” What the report actually states at paragraph 9.16 is: “… No ordinarily competent midwife would have allowed the Syntocinon to continue to stimulate the uterus more frequently than 5 in 10 mins…” Dr Whitford clearly testified that she disagreed that 4/10 was the maximum; up to 5/10 was acceptable as she had stated in her report [6/45 at paragraph 9.15, adopted in evidence]. This applies to all women.
[69] This was also the view of Dr Umstad. It was the general view, he said, in all labour wards he had worked in as at 1992. Dr Umstad further stated that higher rates of contraction might be allowed on obstetric authority—there was an indication of this in the previous labour—adding, with reference to the Arulkumaran text, that some ladies contract spontaneously at 5—6/10. Professor Murphy stated that one quarter of women contract at 5/10 in spontaneous labour. Professor Murphy was categorical that the definition of “hyperstimulation” in all situations was a frequency higher than 5/10. In this connection she referred to the National Institute for Clinical Excellence [NICE] guidelines (which were not produced to the court). In the light of this evidence, my understanding of the Arulkumaran text is that the author counsels a cautious threshold for instituting augmentation in order to allow headroom for the higher rates of contraction which may follow. I find confirmation of the 5/10 ceiling, at least as the normal upper limit for “spontaneous labours”, which is the Arulkumaran benchmark for augmented VBAC, in the standard form partogram. The partogram was pre-printed to show up to 5/10. The partogram for the previous labour shows contractions running at the rate of 5/10 for hours. I also find confirmation in the protocol for the administration of syntocinon at the Queen Mother’s hospital in 1992.
The syntocinon augmentation protocol
[70] The evidence about the protocol is that in 1992 every labour room in the Queen Mother’s Hospital had a laminated syntocinon protocol pinned or stuck to the wall for easy reference. Two protocols were produced in evidence, one dated, or possibly dated retrospectively, 25 July 1991, and the other dated December 1993. The consensus was that the 1993 protocol was in terms similar to the protocol in place in March 1992. The terms so far as relevant are:
“Syntocinon as per agreed regime will be used to induce or augment labour after rupture of the membranes.
Incremental increases in the dosage will be made at the discretion of the midwife if:
1. The fetal heart rate is within normal limits, with no decelerations or loss of variability.
2. Uterine contractions are occurring no more than 4 : 10.
3. There is no evidence of vaginal bleeding, hypertonic uterine activity, abdominal pain outwith contractions, tenderness over the lower segment of the uterus.
4. Maternal analgesic requirements must be under constant review.
OXYTOCIN REGIME
10 units Oxytocin in 500mls Lactate (20 mu in 1 ml)
Administration rate
| 10mls/hour | 200mu/hour | 3.2mu/minute |
| 20mls/hour 40mls/hour 80mls/hour | 400mu/hour 800mls/hour 1600mls/hour | 6.4mu/minute 12.8mu/minute 26.6 mu/minute” |
The table of administration rates at the given concentration is meant to show, row by row, the same rate of infusion in millilitres per hour, in milliunits [mU] per hour, and in milliunits [mU] per minute. The rate is meant to double with each increment, on this scale up to 80mls/hour. I have marked apparent errors in italics. In the mU/hour column the last two values are mistakenly expressed in mls rather than in mUs; and in the mU/minute column the last value, if a doubling, ought to be 25.6 mU/minute rather than 26.6 mU/minute. The errors are not present in the protocol dated 25 July 1991. The errors are not material in the present case. In the present case the actual regime was slightly different again starting at 3.3 mU/minute and increasing by stages to 6.6 mU/minute, to 13.2 mU/minute, to 26.6 mU/minute. There is a question as to whether the infusion ever actually reached 26.6 mU/minute, more of which below. Rates of infusion higher than 26.6 mU/minute are listed in the protocol using a double-strength concentrate of 20 units oxytocin in 500 mls lactate: but these higher rates of infusion are not relevant in the present case. (Dr Whitford suggested that the higher rates are for induction rather than augmentation.)
[71] For present purposes the important point is that the regime, on a plain reading, permitted midwifery staff to institute an infusion (on obstetric authority) or to increase the rate of infusion at their discretion when contractions were already at 4/10, implying that a higher frequency of contractions was not necessarily unacceptable. This is Professor Murphy’s reading too. I find as a fact that this was responsible practice in 1992. Correspondingly, I am unable to find that a rate of contraction higher than 4/10 necessarily amounted to “hyperstimulation”. I reject, without criticising, Dr Milne’s thinking on the matter. Professor Murphy added that the Queen Mother’s protocol corresponded with the regimes with which she was familiar in Dublin and Oxford in 1992.
[72] So, when can a judgement properly be made to institute infusion or to increase the infusion rate with contractions already occurring at 4/10? The judgement can properly be made on the evidence of Dr Whitford, Dr Umstad and Professor Murphy when contractions remain incoordinate or are only mild to moderate in strength and when there are none of the contra-indications listed in the protocol. Dr Umstad stated that no distinction was made in the Queen Mother’s Hospital for the purposes of augmentation between non-VBAC and VBAC labours. In Melbourne there were different regimes for primagravids and multigravids.
[73] The Queen Mother’s Hospital protocol does not state the time interval between increments. The evidence was that in 1992 at least fifteen minutes would be allowed for the purpose of assessing the effect of the previous dose. If I understand Professor Murphy’s evidence correctly, syntocinon can have an immediate effect; and an increase in the rate of infusion may cause a spike in uterine activity before a settled pattern is established. Following a discussion at 23.00 between the registrar Dr Umstad and the senior house officer Dr Vivien Scott, Dr Scott recorded in the progress notes: “DW [discussed with] Dr Umstad àcarefully commence syntocinon.” At the same time Dr Scott recorded in a section of the progress notes apparently used for recording drug administration: “syntocinon routine regime.” This is interpreted to mean that the midwife was authorised to increase the rate of infusion by doubling at intervals as judged appropriate in accordance with the protocol. For reasons which will be explained below the infusion was not set up until 01.05.
The ultimate infusion rate
[74] I have to resolve a conflict about the ultimate infusion rate. On the partogram student midwife Heraghty, apparently, recorded “3.3, 6.6, 13.2, 26.6”. Dr Milne and Dr Whitford have taken this to mean that the syntocinon infusion rate was ultimately 26.6 mU/minute. Just to be clear the half-hourly time cells in the oxytocins grid for 01.00 to 01.30, 01.30 to 02.00, and 02.00 to 02.30 accommodated the attendant’s handwritten syntocinon rates in small, cramped figures. None of the witnesses postulated that the infusion rate was increased over a ninety minute period from commencement.
[75] In her report dated June 2014, which she adopted in oral evidence, Dr Whitford referred to “a report by Dr Charles Clark dated 14.9.93” which “confirmed that the maximum rate of 26.6 mU/min was reached.” The reference was not explained in oral evidence and the Clark report was not produced to me so that I can do nothing with that information beyond noting that it is something, whether reliable or unreliable, which Dr Whitford appears to have taken into account. In oral evidence Dr Whitford stated that, if the augmentation had not gone up to 26.6 mU/minute, she would have expected to see a note to that effect. Dr Whitford’s understanding appeared to be that the “routine regime” meant increasing the infusion rate up to 26.6 mU/minute as the norm unless there were a reason not to. I would nuance the matter differently. My impression from the terms of the protocol and the evidence as a whole is that the infusion rate should be increased only if it is proper to do so. I infer that the student midwife ought to have interpreted her instructions “carefully commence syntocinon” accordingly. As stated above, Dr Whitford’s clinical experience of managing the administration of syntocinon is limited.
[76] On the CTG trace there are annotations apparently made by student midwife Heraghty which read: “01.05 SYNTOCINON COMMENCED 3.3 MU”, “01.20 SYNTOCINON ∧ 6.6 MU”, “01.35 SYNTOCINON ∧ 13.3 mu”. There is no annotation fifteen minutes later, at or about 01.50, or subsequently, of a further increase to 26.6 mU.
[77] Dr Umstad compiled a retrospective but near contemporaneous summary of the labour. This is at the end of the progress notes. The summary was compiled at 05.30 on 2 March 1992. The summary contains the entry: “03.05 3—4/10 moderate/strongly Maximum syntocinon = 13.3 mU/min”. In evidence Dr Umstad stated that the purpose was to present a summary to his consultants. He would speak to all the staff involved to make sure he got all the timings correct: “all drug administration, the doses is much better collected contemporaneously.” The information about the contractions, which is specifically tied to the time “03.05”, is likely in my view to have come from the progress notes entry made by the student midwife at 03.05: “03.05… contracting 3:4 in 10 moderate/strongly…” No entry about the maximum syntocinon infusion was made by the student midwife in the progress notes at 03.05 or at any other time. Therefore the information about the maximum rate cannot have come from the progress notes. Nor could the information about the maximum have come from the partogram since the partogram suggests a maximum of 26.6 mU. A maximum rate of infusion might have been inferred simply from the absence of annotation on the CTG trace of any increase above 13.3 mU/minute after an interval of fifteen minutes, at 01.50, or later. However, because of the placing of the entry in Dr Umstad’s timeline between 03.05 and 03.45, as in fact the last entry before 03.45, which makes the entry seem to look back over the whole period of the infusion, and because of the use of the word “maximum”, I think the likeliest explanation of Dr Umstad’s note is that it was made after getting confirmation from the student midwife. In evidence Dr Umstad infers that the note of infusion rates on the partogram was written in anticipation. Professor Murphy supports this interpretation. She refers to the careful annotations on the CTG trace and, on her interpretation, the lack of apparent increase in uterine activity after the supposed increase to 26.6 mU/minute. The idea that the partogram note was written in anticipation could find support in the fact, if it be a fact (the cramped writing is difficult to read), that the partogram gives a dosage of “13.2” whereas the actual dosage recorded is “13.3”.
[78] The hypothesis about the maximum infusion rate can be tested by asking whether circumstances at or around 01.50 argued against a further increment to 26.6 mU/minute. If the strength of contractions were already moderate to strong at 4/10 or if the frequency of contractions were already 5/10 it would have been wrong for the student midwife on her own authority to have increased the rate of infusion by doubling it again at 01.50. In the ten minute period up to 01.50 the CTG trace shows five contractions. Both Dr Milne and Professor Murphy interpret the trace to this effect. The closest assessment of the strength of contractions is at 02.00 when student midwife Heraghty recorded in the progress notes “contracting 4/10 strongly”, presumably referring back to the previous ten minute period 01.50 to 02.00. Both features, frequency and strength of contractions, would be consistent with the infusion having had the desired effect. Overall the indications at or around 01.50 were that the rate of infusion should not be increased. On balance I conclude that, as instructed, student midwife Heraghty did implement the syntocinon regime carefully; and I find that she did not increase the rate of infusion to 26.6 mU/minute. I find as a fact that the maximum rate was 13.3 mU/minute as recorded by Dr Umstad on information provided within two hours of the cessation of the syntocinon infusion 23 years ago. I emphasise that I have reached this conclusion on balance: the finding would have been made with more confidence had there been confirmation, for example by an entry in the progress notes that Ms Heraghty had taken account of the contraction rate as we can now see it on the UA trace. There are non-explicit indications, discussed below, that student midwife Heraghty did pay attention to the trace.
UA REF
[79] Dr Whitford focused another matter which might possibly cast doubt on the competence of student midwife Heraghty. This matter is the recurrence of the notation “UA REF” along the top margin of the UA trace. In places--at 01.57 for example--there are clusters of “UA REF”s. Dr Whitford believes that the notations record attempts by the attendant to re-set the trace baseline manually to a lower relative “pressure” on the strip chart. Dr Whitford implies that the attendant was treating the symptom, a rising “pressure” baseline in the UA trace, rather than the underlying problem, failure of the womb to relax between contractions [6/45, paragraph 9.14, adopted in evidence]. Dr Whitford suspects a hypertonic uterus which did not relax between contractions because of the effect of syntocinon. Dr Milne—who had Dr Whitford’s report when he prepared his own report—seems to have accepted the notations as evidence of a hypertonic uterus: but he had difficulty in explaining why a “UA REF” just after 03.00, at 03.05 I think, resulted in the UA trace baseline going up.
[80] Having reviewed the whole trace in light of the cross-examination of Dr Whitford I have come to the conclusion that “UA REF” tends to be seen on the trace when the trace goes off-scale at the bottom and then re-establishes itself at a higher level, as in the example which caused Dr Milne difficulty; that the re-setting evidenced in this case is, in most instances, automatic; and that, in any event, the notations give no indication about the competence of student midwife Heraghty or otherwise.
[81] Student midwife Heraghty took over attendance on Mrs Clark at 22.10. From 21.25 to 22.10 there was a different midwife, name unknown, in attendance. In the 35 minute period from 20.50 to 21.25 there was no midwife in attendance. Before 20.50 there was another midwife, name also unknown, in attendance. During the “no midwife” period starting at 20.50 there are four UA REF notations coinciding with the trace apparently going off-scale at the bottom. Dr Whitford volunteered: “Maybe someone was popping in”. I reject this explanation. I think it much more likely that the machine was automatically re-setting the baseline. Before the “no midwife” period, at 20.30 to be precise, when there was a different midwife in attendance, there is a UA REF associated with what I understand be an “artefact” in the UA trace, a sharp spike, which coincides with “abdo palpation” hand written on the trace by the attendant. At the same time there is a break in the FHR trace. In the progress notes the attendant has written “20.30... CTG... some loss of contact.” This was before the foetal scalp electrode was applied, at a time when the FHR was being monitored externally. After the “no midwife” period but before Ms Heraghty took over, from 21.50 to 22.10, when another midwife was in attendance, there are eleven “UA REF”s two or three of which may represent manual re-basing of the UA trace. In answer to my questions Dr Whitford testified that she was not suggesting that the elevated baseline from 21.47 to 21.57 represented inadequate uterine relaxation; and she stated that the amount of artefact meant that the UA trace was not a true reflection of anything. A vaginal examination was taking place and the foetal scalp electrode was fixed at 21.50. I interpret the two simultaneous “UA REF”s at 21.57 as representing a manual re-basing followed instantaneously by an automatic re-setting of the baseline.
[82] In the period of two hours and forty-five minutes from 01.05 during which syntocinon was infused I have counted 26 “UA REF”s. The last three occur after the foetal emergency had announced itself on the FHR trace and while the maternal emergency was unfolding clinically: it is not plausible that the last three “UA REF”s represent manual re‑sets. Overall I find that the “UA REF”s which coincide with the trace going off-scale at the bottom, i.e. below the pre-printed zero mmHg/kPa mark, are automatic re-sets. This accounts for 21 of the 26 “UA REF”s in the syntocinon period, 01.05 to 03.50.
[83] During the syntocinon period, I see five apparent manual re-settings of the baseline to a lower level. These re-basings are at 01.13, 02.07, 02.33, 03.13 and 03.33. The re-basings at 01.13 and 02.07 look like manual re-sets of an elevated baseline. Artefacts are associated with the latter elevation. The re-basing at 02.33 occurs when the baseline is elevated but declining. The last two re-basings follow a period of artefacts associated chronologically with the epidural top-up and the “bed pan” event. At the risk of stating the obvious, the re-basings must have taken place a few minutes before the trace emerged from the machine and was available for student midwife Heraghty to examine. I find nothing to show that the manual re-basings cast doubt on the competence of student midwife Heraghty or imply, in reality, an unhealthily rising, or elevated uterine resting tone. The UA trace baseline was never as high on the chart after the start of the syntocinon infusion as it had been on occasions before. For example, from 00.08 the UA baseline was so high that the trace was peaking off the top of the scale until manually re-based at 00.26. The rise in the UA baseline on that occasion is associated with artefact. There is also artefact in the FHR trace. The explanation is found in the attendant’s note written on the trace: “00.15 Epidural Top up…”
[84] Throughout the period of syntocinon infusion until 03.45 when the womb ruptured, the FHR trace was “textbook normal reassuring” in the words of Professor Murphy. The expert evidence given in this case was unanimously to the effect that hypercontractility or non-relaxation between contractions would tend to interrupt or reduce the blood supply to, and the oxygenation of the foetus with consequent effects on the FHR. On the expert evidence I find it to be highly unlikely that the FHR could have remained unaffected for two hours and forty minutes had the uterus been hypertonic. Professor Murphy was categorical: the FHR trace is “in no way compatible” with high tone failure of the uterus.
[85] The fact that there were manual re-basings of the UA trace at 01.13, 02.07, 02.33, 03.13 and 03.33 necessarily means that sister midwife Heraghty was paying attention to the UA data, at least from time to time, as Dr Whitford accepts. Other indications that Ms Heraghty had an eye on the CTG trace are the fact that she made notes on the trace at 22.35, 23.20, 00.15, 01.05, 01.20, 01.35, 02.50 and 03.30. She recorded FHR characteristics, presumably taken from the trace, in the progress notes at 22.10, 00.30, 01.25, 02.00, 03.05 and 03.45. Putting all these events together Ms Heraghty is documented as taking notice of the CTG data or trace for various purposes at 22.10, 22.35, 23.20, 00.15, 00.30, 01.05, 01.13, 01.20, 01.25, 01.35, 02.00, 02.07, 02.33, 02.50, 03.05, 03.13, 03.30, 03.33 and 03.45. In relation to the question of competence, it should be said that student midwife Heraghty’s readings of the FHR trace entered in the progress notes are accurate and reliable when checked against the trace itself.
Hyperstimulation as the cause of the rupture
[86] The pursuer’s case on causation as pled is—must be—that the rupture of the womb was caused by hyperstimulation of the uterus which occurred after 03.05. I say this because it is averred [closed record 12B—D; 23C—D]:
“[12C]... Had a more Senior Midwife or medical staff been consulted [at 03.05] they would have reviewed the pursuer’s progress and carried out a vaginal examination. The Syntocinon would have been switched off if not already done so [sic], over stimulation of the uterus would have been prevented and the pursuer would not have gone on to sustain a uterine rupture... [23C] Had Dr Umstad carried out a vaginal examination between 02.00 and 03.00 he would have found the cervix to be fully dilated. In the event of no foetal compromise and/ or vaginal bleeding then labour would have been allowed to continue but the Syntocinon would have been switched off and on balance of probabilities the uterus would not have ruptured.”
There is absolutely no suggestion in the evidence that hyperstimulation before 03.05 weakened the womb or otherwise pre-disposed it to rupture 40 minutes later. In evidence Dr Milne postulated that the womb ruptured because the head, a solid object, malpositioned, occipito-posterior or occipito-transverse, neither rotating nor descending, was pushing against the uterine scar while syntocinon was augmenting the uterine activity. “Therefore there may come a point where the weakest point of the uterus gives way,” he said. By “weakest point” I think Dr Milne meant the scar. He added, commenting on Professor Murphy’s explanation, that it was not reasonable to assume that syntocinon played no part if contractions were more than 4/10. As I have said, Dr Milne was out on a limb on the question of the upper limit for the frequency of contractions in VBAC. I find that his causation theory is not persuasive. I shall expand on this below.
[87] In any event, there is no evidence that contractions were more than 4/10 after 03.05. There is a period of elevated baseline with artefact from about 03.05. At 03.30 the progress note records: “Change of position in bed on bed pan but HNPU [has not passed urine].” All the expert witnesses agree that there is a period of artefact on either side of 03.30 at which point the student midwife noted on the trace “ON BED PAN”. Beyond that, the consensus is that the uterine element of the CTG trace is impossible to interpret, or impossible to interpret with confidence as regards the number of contractions, in the period 03.05 to 03.45. In the period 03.00 to 03.45 Ms Heraghty recorded rates of contraction at or below 4/10 in the partogram, presumably on the basis of what she could feel by palpating the maternal abdomen. If the pursuer is to make out her case she can only do so as a matter of inference from what happened before 03.05. This necessarily involves discrediting student midwife Heraghty’s observations: but whether Ms Heraghty’s record of the rate of contractions is accurate, reliable or representative and whether there was in fact hypercontractility may be distinct questions.
Student midwife Heraghty’s records of contractions
[88] During her attendance on Mrs Clark student midwife Heraghty monitored the frequency of contractions and recorded her observations on the partogram and from time to time in the progress notes. The assumption made by both sides is that the contractions were monitored by, or primarily by, palpating the maternal abdomen rather than by looking at the UA trace. That the UA trace was not the source of student midwife’s data may be inferred from the fact that the progress notes about frequency include information about the strength of contractions, information available only from palpation; and from the fact that during the final three-quarters of an hour when the UA trace was essentially unreadable Ms Heraghty continued to record the rate of contractions in the partogram. It is proper midwifery practice to monitor uterine activity by palpation, the reason being that while the frequency of contractions can—subject to interpretation—be visualised on the trace, uterine tone, meaning the strength of contractions and resting pressure between contractions, can be gauged only by abdominal palpation. This assumes that the palpating hand is sufficiently practised. The evidence of actual palpation comes from Joseph Clark. He remembers student midwife Heraghty as “very pleasant”, “a nice girl” with an Irish accent. He remembers her “keeping an eye on the monitor screen”—of the CTG machine I assume, situated behind Mrs Clark’s head—and “putting her hand” on his wife’s tummy, saying “that’s fine” and doing that quite frequently. The physical evidence that the frequency of contractions was monitored resides in the records.
[89] The partogram shows contractions running at 2/10 in each of the six contraction columns from 22.00 to 00.30, at 3/10 in the 01.00 column, at 4/10 in each of the three columns from 01.30 to 02.30, at 3-4/10 in the 03.00 column and at 3/10 in the 03.30 column. (Since labour was terminated at 03.45—03.50 it must be inferred that the last, 03.30, column on the partogram was filled before 03.45.) The progress notes, such as they are, are consistent with the partogram. I think it fair to assume that they are based on the same observations. The progress notes record contractions at 22.10, “2 in 10 moderately”; at 01.25, “3 in 10 moderately”; at 02.00, “4 in 10 strongly”; at 03.05, “3:4 in 10 moderate/strongly”. The entries for 01.25, 02.00 and 03.05 are relevant for the period of syntocinon infusion.
[90] I noted Dr Milne as agreeing with pursuer’s senior counsel, making a comparison with the UA trace, that the progress note for 01.25 “is maybe alright as a snapshot at 01.25 precisely but it doesn’t help as to what happened over the previous half hour”. In cross‑examination Dr Whitford confirmed that the progress note for 01.25 is a fair representation of the rate of contractions as shown on the UA trace for the ten minute period leading up to 01.25; and she conceded that the progress note for 03.05 is “not wrong” as a snapshot of the ten minute period up to 03.05 in terms of the rate of contractions. As regards the progress note at 02.00, Dr Whitford did not comment specifically, Dr Milne counted five contractions on the UA trace in the period 01.50—02.00, and in the same period Professor Murphy counted four contractions on the UA trace, commenting that the progress note “4 in 10 strongly” at 02.00 was “a very reasonable interpretation of the CTG”. (Of course what student midwife Heraghty was actually interpreting, I infer, was abdominal changes.) The difference between Dr Milne and Professor Murphy is a difference about the “twin peak” at 01.51—01.53 and as to whether it should be counted as one or two contractions. In cross-examination of Dr Umstad the following exchange occurred:
“Q. And in 01.50—02.00 to we have another five? Possibly six, but five anyway?—A. Possibly.
Q. So five possibly six is that right?—A. Possibly, but its much harder to say. It’s not as clear.”
In this instance I prefer Professor Murphy’s assessment. I conclude that student midwife Heraghty was competent to count contractions by palpation. No one contests Ms Heraghty’s assessment of 2/10 at 22.10 and for the period 22.00—23.00 when the UA trace is unreadable.
[91] Clearly, assessing contraction rates is not an exact science, as indeed Dr Whitford told me in terms; and on the evidence in this case there is no universally accepted method, perhaps no “common currency”. As to “currency”, Dr Whitford founded on T F Baskett, Essential Management of Obstetric Emergencies, 2nd edn (Bristol, 1991), 111. The author states: “The limiting factors [when augmenting labour with oxytocin] are that contractions should be no more frequent than every two minutes and should not cause fetal distress.” Possibly this is meant to express the equivalent of five contractions in ten minutes: but by my calculation one contraction every two minutes, starting the count with contraction number one at zero minutes, would amount to six regular contractions on the ten minute mark, that is, one millisecond beyond the ten minute period. As to method, there was no evidence as to how student midwife Heraghty was trained to count contractions and fill the partogram; there was no evidence as to what the “midwife of ordinary competence” should have done; and there was very little evidence, certainly no determinative evidence, as to what should be done in the event of divergence between assessment by palpation and by counting peaks on the UA trace. Asked what a midwife should do if she is unsure what she is seeing on the trace, Dr Whitford replied: “She should palpate the contractions.” The evidence gives me no idea how common it is for UA trace assessments and partogram assessments to diverge.
[92] The idea possibly embodied in the partogram of a contraction rate expressed per ten minutes for each thirty-minute period is in itself challenging. As for extrapolation, in another context Dr Whitford gave an example of how this could be done using the CTG trace when she extrapolated from the 1.5 cm interval, peak to peak, between two clear contractions occurring at and after 02.48, to postulate a contraction rate of 6/10 for the ten minute period 02.40—02.50 although she rather retreated from her initial figure in cross-examination. Dr Whitford, in answer to a leading question in cross-examination by defenders’ senior counsel, accepted that a competent midwife would check her tally against the trace: but, in context, I do not understand this to mean anything more than checking against a relevant ten-minute period of the UA trace. All this leaves me with the impression that the partogram figures might not be entirely representative. Overall, however, if properly done, the partogram-filling exercise is likely to illustrate in a broadly reliable way, what the trend is. In this case the trend is upwards from 01.00, plateauing at 4/10 and then reducing to 3—4/10 after 03.00. I gather that the purpose of the partogram is to illustrate trends and how the trends relate one to another.
The CTG record of contractions
[93] Dr Milne agreed that the interpretation of CTG traces is to a degree subjective. He also agreed that clinicians would “eyeball” the trace to get a broad impression. Under reference to her report, section 3, Professor Murphy stated that a huge amount of research had been done to compare real-time interpretation with after-the-event interpretation of traces. There was a great deal of difference, with both inter-observer and intra-observer variability.
[94] The pursuer’s expert witnesses presented their evidence on the UA trace in different ways: Dr Milne assessed the trace in sequential ten-minute segments whereas Dr Whitford assessed the trace by averaging half-hour periods of three ten-minute segments in order to compare, as she saw it, with the partogram. Her report contains a helpful table showing the results. In the “CTG tracing” column, for two half-hour periods, 02.00—02.30 and 02.30—03.00, the table shows contractions reaching “5—6:10 Possibly not relaxing between contractions.” In oral evidence Dr Whitford gave some detail of the ten-minute segments making up these half-hour periods. In oral evidence Dr Milne provided a comprehensive account looking at every ten-minute segment from 23.30 to 03.00. It is easiest to use Dr Milne’s analysis as the basis for discussion. I shall concentrate on the segments and periods of greatest concern. The most concerning figures, contractions over 5/10 on Dr Milne’s assessment, are for the three segments 02.00--02.10, 6/10; 02.20—02.30 5—6/10; and 02.50—03.00, 5—6/10.
[95] Going back to the first of these segments, 02.00—02.10, Dr Milne is not categorical about the 6/10: but his assessment is quite different from Professor Murphy’s who identifies 3/10. There are difficulties in interpretation: the segment contains two short periods of apparent artefact associated with two “UA REF”s. According to my note Dr Milne said: “I think they [six peaks] represent contractions but I admit it‘s becoming more difficult to interpret.” One difference between Dr Milne and Professor Murphy is that he identifies one “twin peak” and she identifies two. Two of Dr Milne’s other peaks are discounted entirely by Professor Murphy: “They don’t look like contractions”. I noted Professor Murphy as saying:
“It is highly unlikely to be six in ten because you virtually always get FHR abnormalities with excessive uterine activity. On a purely physiological basis it does not make sense to me that there are six in ten.”
If Dr Milne’s 6/10 is right it is difficult for me as a layperson, with the limited instruction given, to understand why the following ten-minute segment is only 3/10 on Dr Milne’s own assessment. If Professor Murphy is correct it is difficult for me as a lay person to understand why there should be a six minute interval between the last contraction counted by Professor Murphy in the 02.00--02.10 segment and the next contraction counted by her in the 02.10—02.20 segment. On purely logical grounds, to borrow a phrase, I suspect that the truth lies somewhere between the opposing assessments at, say, 4—5/10.
[96] Dr Milne assesses frequency in the segment 02.20—02.30 at 5—6/10. I noted Dr Milne as saying that the first of the possible six contractions was “doubtful”. Dr Murphy initially identified 3/10 during the same segment; she could be persuaded to see 4/10; and she could understand some interpretations arriving at 5/10. I conclude that Dr Milne’s “doubtful” contraction—the first one in the sequence—should be discounted. I cannot see that the contraction rate in this segment is more than 5/10; and the rate may possibly be 4/10.
[97] In relation to the last-mentioned segment 02.50—03.00, Dr Milne’s evidence is “five or six” contractions, 5—6/10. The query about the sixth contraction relates to the last contraction in the segment—if it be a contraction—represented by an indistinct, short, low peak just before 03.00. Professor Murphy saw the contractions stabilising during this segment at a rate of 4/10. I find that the rate of contractions during this segment is not more than 5/10.
[98] Using Dr Milne’s figures, adjusted for the three segments just discussed, the half-hour averages from 01.00 to 03.00 are 4/10, 5/10, 4—5/10, 4/10. Student midwife Heraghty’s assessments entered in the partogram in the four columns starting at the 01.00 mark and ending at the 03.00 mark are 3/10, 4/10, 4/10, 4/10 thereafter reducing to 3—4/10. I conclude that the partogram does not capture the highest contraction rates which are evidenced on the UA trace and which in fact did or may well have occurred. I also conclude that there was no hypercontractility, using the more-than-five-in-ten definition supported by Dr Whitford, Dr Umstad and Professor Murphy, and having in view also the complete absence of physiological effects on the foetus. The latter conclusion is supported by the “text book normal reassuring” FHR trace, as Professor Murphy described it, during the whole period of syntocinon infusion from 01.05 to 03.50. For all segments other than those specifically discussed I am prepared to proceed on the assumption that Dr Milne’s figures are correct: 00.30—00.40, discussed below at para 115; 00.40—00.50, 4/10; 00.50—01.00, 3/10; 01.00—01.10, 5/10; 01.10—01.20, 4/10; 01.20—01.30, 3/10; 01.30—01.40, 5/10; 01.40—01.50, 5/10; 01.50—02.00, discussed above at para 90; 02.00—02.10, discussed above at para 95; 02.10—02.20, 3/10; 02.20—02.30, discussed above at para 96; 02.30—02.40, 4/10; 02.40—02.50, 3/10; 02.50—03.00, discussed above at para 97.
Periods of high rates of contraction alone and combined with other features
[99] Professor Arulkumaran’s text (above) recognises that: “In practice, augmentation may lead to higher levels of uterine activity than spontaneous normal labor.” I think this means that contraction rates of at least 5/10 can be expected. It may mean that higher rates are to be expected. The text gives no guidance as to what, if anything, should be done. On Dr Milne’s assessment of the trace, which I do not entirely accept (above), contractions were at the rate of 5/10 for each of the ten minute segments 01.30—02.00, that is for an uninterrupted period of 30 minutes.
[100] In cross-examination Dr Milne agreed that while “a prolonged period of 30 minutes or 60 minutes of excessive contractions”—his definition being greater than 4/10—would be of concern, one short period would not be of concern unless it coincided with the institution of syntocinon. Given the ambiguous question this evidence is not particularly helpful. In cross-examination of Dr Umstad it was put that there was no difficulty in reading the UA trace between 01.20 and 01.50 and that, if he had seen the trace for that period in the knowledge that there had been a previous caesarean section the frequency of contractions by itself should have led him to discontinue the syntocinon. Dr Umstad disagreed, explaining that the aim was to have four to five contractions in ten minutes, which was happening. Asked about five in ten “over a period”, Dr Umstad stated: “That’s acceptable”. Unfortunately the “period” was not specified so that the evidence lacks clarity. In the period 01.20—01.50 I find that there were two consecutive segments amounting to 20 minutes when contractions were at 5/10. In cross-examination Professor Murphy conceded—was driven to concede I think—that even in 1992 there was an obligation for the midwife to reduce the rate of syntocinon infusion upon seeing 30 minutes of contractions at the rate of 5/10 in a VBAC situation. She accepted that the attendant midwife might alternatively look for input from a more senior midwife or from an obstetrician. Professor Murphy made clear that she did not think that there was any 30-minute period during which Mrs Clark was contracting at 5/10. Dr Whitford said that a competent senior midwife should have stopped the escalation of syntocinon or turned down the infusion rate. She assumed an infusion rate of 26.6 mU/min and that the rate of contractions was 5—6/10 for a period of at least 30 minutes. My findings are, of course, that the maximum infusion rate did not reach 26.6 mU/min, that the rate of contractions was never 5—6/10 and that there was no half hour period when contractions were continuously at the rate of 5/10.
[101] Dr Whitford thought that a contraction rate of 5/10 might cause concern if combined with other features. As a matter of principle this might well be correct: but it has no application to the specifics and I reject Dr Whitford’s opinion to the contrary. Dr Whitford’s report states at paragraph 9.33:
“At 03.05, in view of the repeated episode of ‘show ++’, the apparent absence of any other signs of impending second stage, the reduced variability of the fetal heart between 02.40 and 03.05 [actually 03.00] and the fact that the contractions appeared to be about 5:10 with relaxation between contractions being uncertain.., at very least there should have been consultation with senior midwifery or medical staff to review the situation.”
In oral evidence Dr Whitford indicated that the student midwife should have “turned down or turned off” the syntocinon infusion pending review. Dr Whitford’s primary criticism was that, irrespective of whether or not there was reduced variability as a matter of fact, if a student midwife noted what she thought was reduced variability she should have done something about it. My findings (above) on the rate of contractions are that during the segment 02.50—03.00 the rate was not more than 5/10 and that over the half-hour period 02.30—03.00 the rate was 4/10. I have rejected the notion that there was non-relaxation between contractions. For the further reasons given below I attach no weight to Dr Whitford’s opinion as to what should have been done by the student midwife at 03.05.
Conclusion on the rate of contractions and the immediate cause of the rupture
[102] My conclusion is that there was no hyperstimulation of the uterus at any time and that there is no basis for inferring that there was hyperstimulation during the period leading up to the rupture, 03.00 to 03.45, when the trace is uninterpretable. There are cases in which gradual dehiscence of the scar manifests in a reduction in the rate of contractions. Indeed, something said by Professor Murphy indicated that this was the pursuer’s original case on averment, subsequently departed from. I should find Dr Milne’s causation theory more persuasive in a gradual dehiscence scenario. In this case the rupture was unheralded, sudden and complete. I find it plausible that the rupture was connected with movement of the head, as postulated by Professor Murphy. The fact that the station of the vertex was found to be apparently unchanged on vaginal examination immediately after the rupture does not detract from this explanation given that the rupture itself would release pressure. Dr Milne described the baby’s head, with reference to the written operation findings, as “lying in the abdomen”.
The midwifery case
[103] Even if valid criticisms can be made about aspects of the midwifery care offered to Mrs Clark—criticisms for example about the level of supervision or the quality of record‑keeping—my conclusion is that the case laid in negligence against the midwives for causing the birth injury to Jill Clark is not made out and must fail on the evidence. This is so for a number of reasons.
[104] The single most important reason is that the case is not supported by the pursuer’s midwifery expert Dr Heather Whitford or by any other witness competent to testify as to proper midwifery practice. The midwifery case turns, ultimately, on what should have happened at or around 03.05 on 2 March 1992. The case is that there should have been a vaginal examination at 03.05. Part of the hypothesis is that examination was called for to confirm signs that labour had entered the second stage. During examination in chief, under reference to B R Sweet, Mayes Midwifery 11th edn (London, 1988), at 336, Dr Whitford stated that augmentation with syntocinon would not, without more, require vaginal examinations to be more frequent than four hourly: vaginal examination is an intrusive procedure which carries risks; and many midwives would not have wanted to do a vaginal examination at 02.00. There is supportive context: Mrs Baillie stated that the normal practice at the Queen Mother’s Hospital was to carry out vaginal examinations no more frequently than at three to four hour intervals. Vaginal examinations, she said, are distressing, highly intrusive and carry a risk of infection. Dr Whitford refused to be pressed by pursuer’s senior counsel into accepting that “show ++” recorded in the progress notes at 03.05 by itself heralded the second stage of labour. When pursuer’s senior counsel, apparently in some difficulty, turned to confer with his junior, the witness looked towards me, smiled and shrugged [22 January 2015 at 11.00]. In cross-examination it was put to Dr Whitford that there was no indication for a vaginal examination at 03.05. She replied: “I don’t think a midwife would have initiated a vaginal examination at that time.”
[105] A number of signs and symptoms are taken to indicate the arrival of the second stage: there is “show”, there is pouting and dilatation of the anus, sometimes with an urge to open the bowel, there is a strong urge to push, the cervix is fully dilated and is no longer palpable on vaginal examination, the vertex is visible per vaginam. These things were explained by Professor Murphy and rehearsed in Dr Whitford’s report at paragraphs 9.29 and 9.30. One of the reasons given by Dr Whitford for thinking that the second stage had not arrived was that the epidural anaesthetic required a top up at around 02.50. Had there been an urge to push it would have been felt at that time. This ties in with Janice Baillie’s evidence that the attendant student midwife would probably have reported that the patient was “getting sore”, signifying, I infer, that sensation was returning.
[106] Sister midwife Baillie attended to top up the epidural and was with the patient for ten to fifteen minutes until pain control was re-established. In examination in chief Mrs Baillie was asked whether anyone checked the student midwife’s observations. Mrs Baillie replied that she would definitely have had her hand on Mrs Clark’s abdomen when she was doing the top up (implying that she would have been assessing the frequency, strength and duration of contractions). I understood her to say that she would have had her hand on Mrs Clark’s abdomen for ten minutes. In cross-examination Mrs Baillie testified that before giving the first three millilitres of marcaine 0.25% she would have talked to the patient, she would have asked the patient where the pain was, made sure that the problem was not positional, she would have had her hand on the abdomen, checked the vital signs, checked that “the baby was doing well” and checked that the CTG was “alright”. While waiting for five minutes to give the next seven millilitres she would have looked through the patient’s notes. Normally she would stay for another five minutes after the second dose, would check the vital signs and ascertain that the top up was effective. If any information had caused concern she would have noted it and called an obstetrician.
[107] The pursuer’s hypothesis involves accepting that Mrs Baillie, the most senior and most experienced midwife in the unit, was with the patient for at least ten minutes and either failed to satisfy herself as to the progress of labour and the condition of the foetus or did so but misunderstood the position. Clearly if either of those things happened Mrs Baillie has to answer the allegations of incompetence made against the midwives [closed record 9B—13E]:
“[9B] No ordinarily competent... Midwife exercising ordinary skill and care would have failed to carry out a vaginal assessment at about 02.00 or by at least 03.05... [9E] The failure of the... midwifery staff to carry out a vaginal examination at said time was a failure to exercise ordinary skill and care... [11E] An ordinarily competent... Midwife would have carried out a vaginal assessment at about 03.05... [12B] By 03.00 it should have been clear to a Midwife of ordinary skill exercising reasonable care that the contractions as they appeared on the CTG were more frequent than those recorded in the notes. In the normal management of a patient such as [Mrs Clark], at 03.05 hours the [attendant] Midwife would have either consulted with a more Senior Midwife or sought medical review and either switched off or turned down the Syntocinon in order to prevent over-stimulation of the uterus... [12C] Had a more Senior Midwife... been consulted they would have reviewed the pursuer’s progress and carried out a vaginal examination. The Syntocinon would have been switched off... overstimulation of the uterus would have been prevented and the pursuer would not have gone on to sustain a uterine rupture... [13C] The rupture was caused... by the infusions of Syntocinon... by the... failure... of the Midwives to carry out a medical [sic] review of Mrs Clark... by way of a vaginal examination of cervical dilatation and their consequent failures to abandon the labour or discontinue Syntocinon at 02.00 a.m. (depending on whether the cervix was fully dilated then) or to discontinue Syntocinon at 03.05 a.m....”
None of these allegations was explored with Mrs Baillie when she was questioned in chief for the pursuer.
[108] In re-examination pursuer’s senior counsel put it to the witness that “there was an obligation on someone [“someone” unspecified] to perform a vaginal examination [at some unspecified time after 01.00]?” The question was objected to. In the discussion that followed I understood pursuer’s senior counsel to say that he was blaming Mrs Baillie for the failure to carry out a vaginal examination at 02.00 or 03.05 at latest; and senior counsel referred to the allegations at 9B and 11E [quoted above]. Senior counsel then went on to say that he was simply taking factual evidence. I disallowed the question. Mrs Baillie’s evidence about what she did, as a matter of fact, when she attended Mrs Clark at 02.50 was not challenged in re‑examination. I accept her evidence. In the state of the evidence I am not prepared to accept that sister midwife Baillie either failed to check or did check but misunderstood the position. I will not entertain the allegation of negligence against Mrs Baillie. This is the second reason why the midwifery case must fail [Dingwall v Walter Alexander & Sons (Midland) Ltd 1982 SC (HL) at 237 and 240 per Lord Fraser].
[109] This is not a criticism of senior counsel for the pursuers since the course taken would undoubtedly have been dictated by the information available to him and the evidence as it unfolded. My impression at the moment when the question was asked, rightly or wrongly, was that senior counsel hoped for some comment about Dr Umstad’s responsibility. Senior counsel would have known that Dr Whitford was not going to support the case for a midwife-led vaginal examination at 03.05. I have considered and rejected the pursuer’s submissions on this matter [written submissions for the pursuer, 6].
[110] The third reason why I find the case involving the midwives not proved is that any live midwifery failures are in themselves without consequence. On the pursuer’s hypothesis the consequence that should have followed from the midwives using ordinary skill and care is that obstetric input would have been called for meaning, in this case, that Dr Umstad would have become involved. If Dr Umstad had become involved he would not have altered the management and the outcome would have been the same. This will be explained below.
The obstetric case
[111] I say the same about the obstetric care offered to Mrs Clark. Even if valid criticisms can be made about certain aspects—for example the failure by Dr Umstad to record his plan for review in the progress notes at 01.05—my conclusion is that the case laid in negligence against the obstetric registrar Dr Umstadt for causing the birth injury to Jill Clark is not made out and must fail on the evidence. This is so for a number of reasons.
[112] There is a difference of expert opinion on the question whether it was in accordance with proper practice to commence the syntocinon infusion at 01.05. If it is accepted that labour could properly be augmented provided contractions were not already running at more than 4/10—which is something I do accept—then it cannot be said that there was negligence in commencing the syntocinon infusion. The decision was within the range of responsible treatment options. Strictly, that is all that needs to be said [Gordon v Wilson 1992 SLT 845]. But because of the importance of the matter for the parties I ought to rehearse the the facts as I have found them to be. In what follows I also consider, and reject, the pursuer’s case that there was culpable failure to assess the progress of labour by vaginal examination by 03.05 at latest and then to abandon labour and go to caesarean section (effecting delivery before 03.45).
Towards the decision to augment labour
[113] At 21.40 on 1 March, around the time when another midwife recorded non-reassuring FHR readings in the progress notes, that unknown midwife also recorded “Very difficult to trace abdominally contractions irregular.” At 21.50 senior house officer Dr Vivien Scott recorded, I deduce in response to a request by the unknown midwife for medical input: “Been very difficult to trace CTG [because of] poor abdominal contact.” The membranes were ruptured by Dr Scott and Dr Scott applied a foetal scalp electrode. This resolved any trace issue as regards the FHR. Contractions were running at “2 in 10 moderately” according to the clinical note made by student midwife Heraghty when she took over at 22.10 on 1 March; and the partogram entries for 22.00 and 22.30 show the contraction rate as 2/10. No one contests these recordings even though the UA trace for those periods is, I would say, uninterpretable. The first note written by student midwife Heraghty on the CTG chart was: “Seen by Dr Umstad.” This was at 22.40. It is likely that Dr Umstad attended at this time to consider a treatment plan including assessing Mrs Clark for augmentation notwithstanding that there is no entry in the progress notes.
The initial decision to augment labour
[114] There is an entry by Dr Scott SHO: “23.00 DW [discussed with] Dr Umstad à carefully commence syntocinon.” No one contests that augmentation was an appropriate birth plan option at 23.00 when the decision was first made. The start of the infusion was delayed because of an issue about pain control, pain control having been problematic in the previous labour. The CTG trace shows that the toco belt was removed for 40 minutes from 23.15 while the epidural catheter was inserted and during infiltration of the anaesthetic. The belt was re-fastened at about 23.55 judging by the trace. Shortly afterwards the anaesthetist was contacted again because the epidural was ineffective. There was a top up at 00.15 according to the annotation on the CTG trace. Dr Whitford ventured that once the epidural took effect, Mrs Clark would have felt more relaxed and “the contractions may consequently have started to become more effective.” The UA trace was manually re-based, as I read the trace, at about 00.27.
The start of the syntocinon infusion at 01.05
[115] For reasons not explained, following the re-basing at 00.27 the UA trace was of very good, readable quality without apparent artefact. In the half-hour period 00.30 to 01.00 there were three automatic “UA REF” re-sets and no manual “UA REF” re-basings. There is a degree of dispute about the contraction rate during this half-hour period immediately before Dr Umstad confirmed the decision to proceed with augmentation. Professor Murphy assesses 3—4/10, nearer three than four, by looking at the UA trace. Dr Milne assesses 3—4/10, nearer four than three, by looking at the UA trace. Dr Milne and Professor Murphy agree about two of the three ten-minute segments, 00.40—00.50 being 4/10 and 00.50—0.00 being 3/10. The difference between them is that for the segment 00.30—00.40. Dr Milne assesses 4/10 and Professor Murphy assesses 3/10. The precise point of difference is the feature described by Dr Umstad as a “twin peak” at about 00.35. Dr Whitford described the same feature as a “double contraction” (see above). Dr Milne counts the feature as two contractions and Professor Murphy counts it as one. This is an issue I need not resolve: but, if I had to, I would prefer Professor Murphy’s interpretation. In re-examination Dr Milne stated that “because I think that the syntocinon was commenced when the uterus was already contracting with a frequency of four, at least four in ten per minute” it is not reasonable to assume that syntocinon played no part in the uterine rupture.” Ignoring the possible slip of the tongue (in italics) the premise is mistaken.
[116] The epidural was recorded as being effective at 00.30 on 2 March. The syntocinon infusion was commenced just over half an hour later at 01.05. This was two hours after the original decision to augment had been made. There is an issue about the steps taken by Dr Umstad to review the position in the light of developments since the original decision. His own evidence was that he reviewed the progress of labour, checked the “FHR and the toco”, meaning the FHR and UA elements of the CTG trace. He also said that he checked with the midwife her perception of uterine activity—meaning her perception by palpation—which he described as much more sensitive for the onset, offset and strength of contractions. I accept this evidence, none of which was challenged. My finding is that Dr Umstad reviewed the CTG trace, the rate and quality of contractions and the progress of the labour. As regards the progress of labour, there had been a further vaginal examination by sister midwife Miller between 00.10 and 00.30 [7/8, letter from M R Miller, 5 December 2003]. The findings, which were recorded on the partogram and in the progress notes and were available to Dr Umstad, were of a small, less than one centimetre, if that, increase in cervical dilatation and no descent of the foetal head since the previous examination something over two hours earlier. Professor Murphy read the records as representing that the position of the presenting part was unchanged.
[117] The signed entry in the progress notes at 01.00 records: “seen by Dr Umstad to commence syntocinon.” It is agreed that the entry was not made by Ms Heraghty but by sister midwife Agnes Kasule, the same individual who made the two signed entries at 00.30 [joint minute no. 33, para 37]. So sister midwife Kasule, was apparently checking at 00.30 and supervising at 01.00. It seems logical that the sister midwife who reviewed Mrs Clark’s condition and the condition of the foetus at 00.30 should then seek obstetric confirmation or authority, which was obtained at 01.00, for starting the delayed infusion. Student midwife Heraghty’s next entry at 01.05 is: “syntocinon to commence as regime”. There are two relevant annotations on the CTG trace. The first is: “01.05 SYNTOCINON COMMENCED 3.3 mU.” This is scribbled on the trace at the 01.02 mark. I take it that the annotation was made at about 01.05, starting before the 01.05 mark emerged from the machine. The other note is scribbled on the CTG trace at around the 01.11 mark: “Seen by Dr Umstad.” The earliest the second annotation could have been written, according to Dr Umstad, was 01.13—01.14. I accept this given what I understand about the way the CTG trace emerges from the machine. On Dr Umstad’s account his involvement at around 01.00 must have taken a few minutes at least. I accept Dr Umstad’s evidence that he saw Mrs Clark twice, once to review the decision to commence syntocinon at 01.00 and, having confirmed the decision, again ten to fifteen minutes later to review the commencement of the infusion.
[118] The case against Dr Umstad is that he should not have authorised the augmentation of labour with syntocinon at 01.05 when Mrs Clark was already contracting spontaneously at up to 4/10—in re-examination Dr Milne said “at least four in ten”. The case is largely based on the proposition—which I have rejected on the evidence in this case—that the upper limit for contractions in VBAC is 4/10. In court Dr Umstad’s reading of the UA trace for the half hour period before he instructed augmentation was 3—4/10, nearer 3/10 than 4/10 ; and I have no reason to think that it would have been any different at 01.00 on 2 March 1992. Dr Umstad’s justification is that the contractions were uncoordinated or “slightly uncoordinated”, meaning the duration was varied and the interval between was unequal, that he had the student midwife’s assessment of the strength of contractions, that the labour had not progressed, and that there were no negative features. Although he did not say so, it seems to me likely that he also had the benefit of input from sister midwife Kasule. The FHR was “very healthy”. It was agreed by all the expert witnesses that the aim was to obtain regular, strong contractions. In cross-examination Dr Milne agreed that progress had been slow, that uterine activity had been ineffective and that the contractions were incoordinate. The determining issue was the rate of contractions. Professor Murphy supported Dr Umstad’s judgement: there had been virtually no progress; and not to augment would have risked unnecessary delay and a prolonged labour. The judgment that Dr Umstad had to make was whether to augment labour or to risk a prolonged labour. In the light of my understanding of Professor Whitfield’s labour plan the course adopted by Dr Umstad was in accordance with responsible practice and was cogent.
Obstetric assessment of progress between 01.05 and 03.45
[119] Dr Umstad’s plan was to re-assess Mrs Clark at 04.00—something under four hours after the previous vaginal examination, three hours after the start of augmentation and two hours after the syntocinon was intended to have effect—or earlier if the midwife called him having observed non-reassuring changes in the FHR or signs of obstruction. Dr Umstad’s standard practice in VBAC situations was to review three hours after the start of augmentation. He understood Professor Whitfield’s plan to mean that there should be judicious use of syntocinon to achieve effective uterine activity and rotation. He was aiming to achieve contractions 4—5/10, medium to strong. The midwife “would monitor when that had been achieved”. He was on the ward and contactable throughout his period on duty. Had there been obstruction it would have been manifested by maternal fever and tachycardia, elevation of the FHR, by failure to dilate, caput and moulding. It would have been inappropriate to conduct a vaginal examination at 02.00 approximately 55 minutes after the commencement of augmentation. Dr Umstad would have hoped to find cervical dilatation of at least 9 cms by 04.00. He would have treated failure to progress as a sign of impending obstruction. He would have abandoned labour for sectioning. He described this as “the golden rule of VBAC”. I understand this “golden rule” to mean that lack of cervicometric progress calls for intervention.
[120] Professor Murphy’s evidence on the question of vaginal examination was as follows. From an obstetric point of view vaginal examination at four-hourly intervals was and is standard for all labours unless more frequent examination is medically indicated. In recent years midwifery practice has tended towards a more “expectant” approach, with intervals longer than four hours between examinations for low-risk labours. Professor Whitfield had given no indication for more frequent examination in this case. Professor Murphy interpreted Professor Arulkumaran’s text to mean that vaginal examination should take place after four hours unless there were indications for earlier examination. There were no indications in this case. A strong urge to push tends to be associated with the vertex at about station plus two; and the arrival of the second stage will be confirmed by vaginal examination. It is important not to put the mother under pressure to push before she is ready. It is important therefore to delay the diagnosis until the arrival of the second stage is well indicated. (I got the impression that ideally the second stage for a patient like Mrs Clark would not last longer than one hour and that prolonging the second stage beyond one hour would progressively increase the risks of rupture and for the baby.) To assess progress simply on the basis of “show” would be mere curiosity.
[121] According to Professor Murphy, provided there is continuous attendance and monitoring with no concerning developments—the picture as she saw it in this case—it would be responsible practice not to re-examine vaginally four hours after the previous examination. By 02.00 effective uterine action had been achieved, noted as “4/10 regular-strong”. A period would be allowed for increased activity to produce an effect. Four-hourly is standard and in this case logical. Professor Murphy would not necessarily have quarrelled with an obstetrician who wanted to conduct a vaginal examination at 03.05 but she, “as a very experienced obstetrician”, would not have done so. She insisted that the “standard and appropriate time” to carry out the next vaginal examination was at 04.00. There was no indication for vaginal examination before the emergency. If, contrary to Professor Murphy’s preferred course, a vaginal examination had been carried out at 03.05 and the cervix had been found to be approaching full dilatation, most obstetricians would have allowed the labour to continue and would have re-examined after one hour for further progress and the start of second stage. Professor Murphy’s “best guess” was that dilatation would have been 8—9 cms at 03.05. With good progress in dilatation the standard thinking would have been that a vaginal delivery was achievable. Mrs Clark’s womb ruptured at a point where she achieved full dilatation and the head started moving down. Professor Murphy stated that it is very easy to find reasons to do a caesarean section; and that the threshold for sectioning has come down in the years since 1992. I find the obstetric evidence on this matter from Dr Umstad and Professor Murphy to be cogent. It fits with the midwifery evidence from Dr Whitford.
[122] What I find less cogent is Dr Milne’s insistence that there should have been a review of progress by vaginal examination at 02.00 failing which by 03.05 at the latest. Dr Milne’s view appears to be that a vaginal examination should have taken place between 02.00 and 03.00—that is between one-and-a-half and three hours after the previous vaginal examination—to assess progress even without augmentation by syntocinon [6/36, Report by Dr Milne 2 August 2011, “Opinion on Causation”, paragraph 5, adopted in evidence]. In the labour that actually happened, what Dr Milne described as “the trigger points” for examination at those precise times, 02.00 and 03.05, were the student midwife’s entries in the progress notes: “02.00 show at vagina ++”; and “03.05 show ++ at vagina”. It was explained in evidence that “show” refers to mucus that is visible on a vaginal pad inspected from time to time during labour. In his report Dr Milne refers to “heavy vaginal show”. The report goes on to state: “Excessive vaginal loss (amounting to fresh bleeding) is an indication for urgent medical review and may be a sign of impending or existing uterine scar rupture.” When challenged on this passage in cross-examination Dr Milne agreed that “show” and “fresh blood” (in the sense of fresh blood not mixed with mucus) are “very different things”. He stated that he was not proceeding on the basis that there had been fresh bleeding. I was left wondering why Dr Milne had mentioned “fresh bleeding” at all.
[123] Dr Milne accepted that it was a reassuring sign that at 02.00 Mrs Clark was recorded as contracting at 4/10 strongly; that the FHR at that juncture was reassuring; that “show ++” was associated with labour progressing; that the mother was comfortable and asleep. His view on the need for examination related to the importance of ascertaining when the second stage starts. He then said that if there had been no progress on vaginal examination at 02.00 he would have abandoned the labour: but if there were progress he would have allowed labour to continue for another hour until 03.00 when he would have re-examined vaginally. If there were full dilatation at 03.00 and the head had descended he would have allowed labour to continue with the syntocinon infusion switched off. He did not think that “show ++” at 02.00 was diagnostic of second stage: but he did think that “show ++” at 03.05 was “very likely” diagnostic of second stage. Dr Milne’s contention for vaginal examination at 02.00 was departed from in the cross-examination of Professor Murphy. I can disregard what was said about the supposed requirement to examine at 02.00 and judge the case by the alternative, namely the claimed requirement for examination at 03.05.
[124] Dr Umstad’s retrospective note records that his vaginal examination at 03.46 showed the cervix to be fully dilated and the vertex to be at the ischial spines. On the basis of these findings and the observation of “show ++” at 03.05, Dr Milne postulated that full dilatation had been achieved between 02.00 and 03.05 and that there had been no descent of the head over the period till rupture at 03.45. To put all this in context, full dilatation is 10 cms; the previous vaginal examination between 00.10 and 00.30 found dilatation of 5—6 cms; the average rate of dilatation expected with augmentation is 1 cm per hour; and Dr Milne postulated dilation of 4—5 cms in a period of between two and three hours.
[125] Dr Milne’s position on the need for vaginal examination related, he said several times, to the importance of ascertaining the start of the second stage. This seems to me to be a not wholly convincing reason given the absence of clinical indications and the arguments offered by other witnesses for not rushing to make the diagnosis of second stage. In submissions it was suggested, under reference to the Green-top Guideline, that examination was called for to ascertain cervicometric progress or perhaps, more correctly, to check for the absence of cervicometic progress [written submissions for the pursuer, 9; RCOG Green-top Guideline No. 45 (London, 2007) at 11]. That too is a less than convincing reason since, in this case, all witnesses qualified to comment, including Dr Milne, saw “show ++” as a presumptive sign of the progressive cervical dilatation which, we know with hindsight, was in fact occurring.
[126] Much was made of the supposed illogicality of Dr Milne’s opinion that augmentation should be discontinued if there were full dilatation at 03.05 and the head had descended to some extent. The defenders’ witnesses took the view that if labour were progressing with the infusion it would not have been rational to switch off the infusion. It may be, of course, that Dr Milne’s view is premised on his understanding that eutocia had been established spontaneously and that, with augmentation, there was hypercontractility: but his position on this matter was not well-explained. As should be clear, I reject Dr Milne’s factual premise about hypercontractility: beyond that there is no need to comment.
[127] What is possibly most problematic for Dr Milne’s “trigger point” approach is that it relies on the attendant midwife or midwives triggering obstetric involvement. On the evidence of Dr Whitford, Professor Murphy and Dr Umstad, and proceeding on my understanding of the facts as they were or ought to have been known to sister midwife Baillie and student midwife Heraghty, I conclude that the “triggering” would not have happened and that, if it had happened and if Dr Umstad had become involved, the course of the labour would not have changed.
Obstetric involvement because of perceived FHR abnormalities
[128] Dr Umstad presented as a super expert in the interpretation of FHR traces. Even in 1992 he was engaged in doctoral research on the subject. Dr Umstad was asked virtually nothing about the FHR trace.
[129] Dr Heather Whitford did not claim a special interest in trace interpretation. Dr Whitford was invited to adopt her report wholesale at the outset of her evidence in chief, which she did. She was then taken through the report section by section: but some passages were omitted, specifically section 8 “Fetal condition while in the labour suite”, which contains Dr Whitford’s commentary on the FHR trace, and paragraphs 9.19 to 9.26, which offer Dr Whitford’s opinion as to how a competent midwife should have responded to perceived changes in the FHR. At that stage the impression I had was that Dr Whitford’s views on the FHR were not to be relied on. On the following day Dr Whitford was taken back to and through paragraphs 9.19 to 9.26. The net effect of Dr Whitford’s evidence after cross‑examination was that the student midwife should have consulted senior midwifery or medical staff about the feature she observed and recorded in the progress notes at 03.05 as “Fetal heart baseline 135 bpm [beats per minute] some reduced variability”. I take the “medical staff” to mean or to include Dr Umstad: but he had passed through the witness box without being asked anything about this. I noted at the time: “But expert [Dr Umstad] there and not crossed on.”
[130] “Variability” refers to beat-to-beat variation in the foetal heart rate [FHR]. Looking at the FHR trace in the light of the reports and oral evidence of Dr Whitford and Professor Deirdre Murphy I understand that the period of “some” reduced variability referred to in the note timed at 03.05 lasted not more than 20 minutes ending at about 03.00. (Dr Whitford’s report, at paragraph 9.24, mistakenly refers to the reduced variability as being documented at 02.50 rather than 03.05; and her report, at paragraph 9.33, mistakenly refers to the period of reduced variability continuing to 03.05, which is the time when it was documented.) Both Dr Whitford and Professor Murphy stated that good variability was restored at 03.00, therefore before the 03.05 entry was made—presumably it took a few minutes for the change to become apparent as the CTG trace spooled from the machine. Professor Murphy explained that “reduced variability” is consistent with a sleep cycle in the term foetus and is usually considered pathological only if it lasts for more than 90 minutes. A midwife would normally seek a second opinion if the reduced variability lasts for more than 30 minutes. The progress notes show that on an earlier occasion, 01.25—02.00, the student midwife had recorded “reduced variability” followed by a return to “good variability”. Professor Murphy’s opinion was that the student midwife’s interpretation and response were entirely in order.
[131] As stated above, Dr Umstad was not questioned about the “some reduced variability” note and what his response would have been if he had been called to the bedside. Professor Murphy was not cross-examined about the student midwife’s response at 03.05 or on the question of what would have been the likely outcome of a referral upwards. Her over-view was that the FHR trace during the syntocinon period was in fact “textbook normal reassuring”; and this view went unchallenged and uncontradicted in oral evidence. Sister midwife Baillie was actually present at and around 02.50 for ten to fifteen minutes during the episode of perceived reduced variability. She was not questioned about the matter specifically: but it can be inferred from the absence of evidence in the progress notes that she saw no need to seek a medical opinion. She said that she would have checked that the CTG was “alright”. She said: “If any information had caused concern I would have got an obstetrician, I would have noted it.” She agreed that the brevity of the entry she did make signified that nothing she learned was of concern. In all the circumstances I attach no weight to Dr Whitford’s opinion that there should have been a separate referral upwards. If there had been a referral upwards I deduce that there would have been no change in the management of the labour, so that any failures in this connection by the student midwife or the sister midwife were without consequence.
Conclusion
[132] Applying the test for clinical negligence set out in Hunter v Hanley 1955 SC 200 my conclusion is there was no breach by the defenders’ midwifery and obstetric staff of the duty of care owed by them to Mrs Clark and to the pursuer. I find that Professor Whitfield’s labour plan was a responsible one and that, on the evidence put before me, the labour was managed responsibly in accordance with the plan. Dr Milne is not to be criticised for advocating a more cautious approach; and it may be that his approach, if implemented, whether for reasons which I find convincingly expressed or not, would have prevented injury to Mrs Clark and the pursuer: but that does not make the midwifery and obstetric staff negligent.
[133] I shall repel the pursuer’s pleas-in-law and, the defenders’ first plea having been superseded, I shall sustain the defenders’ pleas-in-law two, three and four. I shall pronounce decree of absolvitor reserving meantime all questions of expense. In due course I shall issue a supplementary note dealing with the questions of principle about damages which I have been asked to resolve.