England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL CROWN COURT
(HIS HONOUR JUDGE SMITH QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd January 2001

Tuesday, 23rd January 2001

1. LORD JUSTICE SCHIEMANN: Latham LJ will give the first judgment.
2. LORD JUSTICE LATHAM: On 19th April 2000 His Honour Judge David Smith QC, sitting at Bristol Crown Court, dismissed the claim by the appellant for damages for personal injuries arising out of her treatment at the respondents' hospital during the course of the birth of her first child. The judge was concerned solely with the question as to whether or not that treatment amounted to a breach of the respondents' duty of care to the appellant. The issue before the judge was clearly set out by him in the following terms in his judgment:

"The claimant, Mrs Felicity Huggins, was expecting her first child to be born on 8th August 1991 but in fact the baby was late, as babies often are.

What happened is that labour began in the early hours of the morning of 15th August and she arrived at Southmead Hospital at 6.45am. The first hospital record was timed at 7.20.

What finally happened in this case can be briefly stated. The ideal presentation of a baby's head in the course of childbirth is the occipito-anterior position."

3. - that is with the baby facing the mother's sacrum as the head emerges.

"It can be said that this is what the system is designed for. The birth is made easier for the mother and the baby if the baby presents in this position. During childbirth the doctors and midwives when the cervix is sufficiently dilated, can assess the position of the baby's head by manual examination of the sutures and fontanelles. I was shown a demonstration doll to illustrate the process. The sutures are, in effect, grooves between the bones of the skull and the fontanelles are small areas where the sutures meet. The bones of the skull are not fixed, and therefore the sutures can be more difficult to assess if the bones of the skull come together in the course of birth. This is called moulding. There is always to a greater or lesser extent some fluid at the top of the baby's head called caput. There are many allegations made in the pleadings against the defendants but the matter which came before me to decide was a narrow one. Mr Padwick, who delivered the claimant's baby with Keillands forceps did so because he wrongly believed the procedure to be necessary because he wrongly believed the baby to be in an occipito-posterior position."

4. - that is with the baby's head facing upwards.

"He rotated the baby through 180 degrees and delivered the baby. Fortunately, there was no harm to the baby but it is said that the procedure did cause harm to the plaintiff.

Causation is challenged and is not for me to decide at this stage. What I have to decide is whether Mr Padwick's admitted mistake was a negligent mistake."

5. Mr Padwick, who was an obstetric registrar at the time, had been called to attend because the second stage of labour had become prolonged. A staff midwife, Sharon McKenna, was supervising a student midwife who was attending because staff midwife Carol Walker, who had been with the appellant through most of the labour had been called to another birth.
6. At 7.40pm staff midwife McKenna examined the appellant, concluded that the baby's head was in the left occipito-transverse position, and drew a diagram which clearly recorded that finding. She was however concerned the labour might have arrested. Mr Padwick was accordingly called. At 8.45pm, immediately before his arrival, midwife Walker, who had returned, recorded as follows:

"Prepared for forceps delivery. Message from Mr Padwick. Delay in second stage now. No more pushing."

7. Mr Padwick is recorded as having arrived at 8.47pm and, as stated by the judge in his judgment, made the examination which resulted in the mistaken conclusion that the head was in the occipito-anterior position.
8. Four experts were called. Mr Clements, for the appellant, concluded that Mr Padwick should not have made the mistake that he did. The notes of previous examinations by midwife McKenna should have shown him that the head, whilst not in an occipito-posterior position when he was called to the labour theatre, was nonetheless in a transverse position which would almost certainly have resulted in the head descending to the occipito-posterior position. He concluded that the assessment made by Mr Padwick on examination that the head was in the occipito-anterior position was in conflict with the notes and the views of the midwife who had last examined the position of the head, and should therefore have resulted in his questioning his conclusion. He should not therefore have made the mistake. He concluded that an obstetrician of Mr Padwick's experience should not have made that error, although he accepted that some circumstances could make an examination difficult, such as moulding and caput. There was no evidence from the notes to suggest that either condition existed to an extent which would cause difficulty in assessment.
9. Mr Johnson, also on behalf of the appellant, said that it was a basic error of obstetric judgment on the part of Mr Padwick. He too relied on the assessment of midwife McKenna as recorded in the notes that the head had been in a position which almost certainly had resulted in occipito-posterior position as the head descended, and in particular he considered that it was inconceivable that the head could have rotated from the position so identified to occipito-anterior. His conclusion, like that of Mr Clements, was that the history showed in the notes should have caused Mr Padwick to appreciate that he must have been mistaken if he thought the position of the head was occipito-anterior.
10. On the other hand, Professor Stirrat for the respondents, said that what occurred was an error of judgment which occasionally happened to all experienced obstetricians and could not be considered negligent. He said that he himself had done it in normal cases, and that it could be difficult to differentiate the positions of the head even under what could be considered ideal conditions. In his view it was inevitable that there would be a degree of moulding and caput which could have affected Mr Padwick's judgment.
11. Mr Anthony Smith, for the respondents, agreed with Professor Stirrat. In his view, failure to assess the position of the head reflected the difficulty of the assessment that had to be made rather than any lack of care. He said that the appellant's experts had oversimplified the ease with which the exercise could be carried out. In his view, Mr Padwick was entitled to rely on the assessment that he had made on examination. As he put it "he had to believe what his hands were telling him".
12. There was in addition before the judge a report of a discussion between Professor Stirrat and Mr Clements which had taken place in an attempt to narrow the issues between the experts. Two particular questions and answers should be referred to:

"Q. Is it accepted that every obstetrician has at

some time made the error of rotating the

foetal head from the OA to the OP position?

A. Yes, agreed.

Q. Is it accepted that in this case there was

no significant caput formation and moulding

to the feotal head?

A. This is a question of fact on which only the

court can decide, but we can assist by

pointing out the following: no moulding or

caput is recorded, some degree of moulding or

caput is inevitable in a labour of this

length.

We are not agreed on the implications to be

drawn from the absence of recording of caput

and moulding."

13. The judge considered that he was put in considerable difficulties by the conflict of view expressed by the experts. He referred to Bolam v Frien Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 and said:

"These cases are not directly in point because what we have here is not a difference of medical opinion, because Mr Padwick undoubtedly made a mistake, but we do have a difference of medical opinion as to whether or not that mistake can be described as negligent. It may therefore be that the Bolam test applies by analogy."

14. For myself I am not entirely clear what the judge meant by this. It might be thought that he was there expressing the view that so long as he could conclude that the evidence of Professor Stirrat and Mr Anthony Smith represented a responsible body of medical opinion then that without more would be sufficient to mean that the appellant's claim must fail. However, he went on to come to a clear conclusion as between the views of the respective experts. He expressed his conclusion as follows:
15. "I consider that we have to put ourselves in Mr Padwick's position and consider the information that he had at the time rather than the facts as we now know them to be. The notes show a number of confusing diagrams and then an apparently clear diagram at 7.40. Of course, from Mr Padwick's point of view that examination as recorded may or may not have been correct. There was at the time no certainty about that. Mr Smith said, "he had to believe what his hands were telling him", and clearly his hands were telling him that the baby was in the OP position.
16. Was that a mistake which any competent obstetrician might make in these circumstances?I conclude that it was. The claimant's experts, in my view, are being wise after the event in attributing certainty to the examination at 7.40pm and the diagram that was produced, and are not really putting themselves in the position that Mr Padwick found himself at the time."
17. On behalf of the appellant, Miss Gumbel submits that the judge was wrong to come to this conclusion. She submits that in doing so he failed to make any critical findings of fact, and to provide any rational explanation for preferring the evidence of the respondents' experts to those of the appellants. She submits that it is the more necessary for careful findings of fact to be made in this type of case where the issue is as to whether or not an admitted mistake amounts to a breach of duty. The mere fact that it was a mistake made on occasions by even the most careful obstetrician does not mean ipso facto that the mistake cannot be negligent. The most careful obstetrician can occasionally fail in his duty of care. She submits that the views of the experts are of no value, essentially, unless they are applied to clear conclusions of fact, and that it is only when those conclusions of fact have been reached that the judge is in a position to apply the expert evidence before him.
18. The appellant submits that the first question which the judge should have asked (but failed to ask) was whether or not he had already decided to use forceps before arriving in the delivery room and assessing the record of the appellant's labour and before examining her. That complaint arises out of the notes which were made by midwife Walker immediately before Mr Padwick arrived. This is important it is said because if Mr Padwick had so decided it is suggested that he was determined on a course of action which could have prejudiced his ability to assess the position of the head carefully. There is no doubt that the judge did not make any express finding in this respect. But it seems to me that, implicit in his conclusion was a finding that Mr Padwick was not prejudging the issue. In any event the point does not seem to me to be a good one. There could be no doubt that at the time Mr Padwick was called to attend it was believed that the head was in a transverse position and had been so for some time. It seems to have been accepted by all those who considered the matter that there was, therefore, some evidence to suggest that the head had become stuck in this position. Labour had arrested with the head in the transverse position. It would be necessary, even on the basis that the midwife's assessment of the position of the head was correct, for the intervention of forceps in order to rotate the head the further 90 degrees to the occipito-posterior position for delivery. It is therefore wholly wrong to suggest that preparation for forceps must imply that Mr Padwick had concluded that the presentation of the head was occipito-anterior, which must be the inference for which the appellant contends if this point is to have any real validity.
19. It is next submitted that the judge should have come to a conclusion as to whether Mr Padwick examined the history of labour on his arrival in the delivery room, and in particular examined the last diagram showing the head in the left occipito-transverse position. Again the judge did not make any express finding in this respect. He simply recorded Mr Padwick's evidence that his routine would have been his to do so. There was in fact no dispute as to this issue. Although the appellant did not remember Mr Padwick examining any notes, the midwife, Carol Walker, recalled him looking at the notes. It seems to me that it is clear that the judge must have accepted the evidence of Mr Padwick and the midwife as to this.
20. An important criticism of the judgment, however, is that the judge did not make any findings of fact as to whether or not Mr Padwick had any discussion with the midwives, in particular in relation to the assessment of midwife McKenna as to the position of the head as recorded in her diagram. Again the judge merely recorded the fact that Mr Padwick's evidence was that he would have discussed these matters with the midwife. It is unfortunate that he did not in his judgment make any express findings as to this. It could be said to be implicit in the judgment; but it is never satisfactory for any conclusion as to an issue of importance to be left to inference.
21. In refusing leave to appeal the judge stated that he rejected the suggestion that Mr Padwick had not discussed the case with the midwife. Unsatisfactory though it may be for the matter not to have been dealt with in the judgment I am satisfied that this was clearly the judge's conclusion and not an ex post facto rationalisation.
22. The most critical matter, however, which Miss Gumbel said that the judge did not deal with in his judgment and which was according to her an essential part of the factual basis upon which he could come to a proper conclusion, is that he made no finding as to whether or not there was moulding or caput, which could have affected Mr Padwick's assessment of the position of the head. Again, this criticism is well made in the sense the judge made no express finding. It is said that this was an essential finding to make as moulding and caput could have been the only justification for his mistaken assessment. It is said in the absence of any note as to the existence of moulding or caput the judge was in no position to conclude that that justification or excuse existed in this case. There is no doubt that it is surprising that the only note which Mr Padwick did make at the time was that having assessed the head as occipito-posterior he turned the baby's head and it emerged occipito-posterior. He made no further comment and gave no explanation in the note about the mistake.
23. Again, it could be said that the judge inferentially concluded that there had been moulding and caput to some extent; but once again that would be an unsatisfactory basis upon which to conclude that the judge had adequately and properly dealt with this particular aspect of the case when considering the arguments of the experts. However, once again, when refusing leave, the judge said that he accepted the evidence of Professor Stirrat that there would have been some degree of caput and moulding, and of Mr Anthony Smith that there was always a certain amount of fluid and a certain amount of moulding. Both those experts had, in effect, used the existence of the caput and moulding as the reason for the difficulty which they indicated there always was in the assessment of the position of the baby's head. These experts clearly did not consider that any note would have been made of moulding or caput unless it had been extensive. Once again, for the reasons that I have already given, the position is not entirely satisfactory. There is no doubt that this is a matter which should have been dealt with fully and properly in the judgment. But nonetheless I am once again driven to the conclusion that the judge has provided sufficient explanation for his conclusion when refusing leave to appeal and that this explanation is one which is not an ex post facto rationalisation and can, accordingly, be taken as his view at the time that he was assessing the evidence of the experts.
24. Whilst, therefore, I consider that the judgment in its original form did not deal fully or adequately with all the factual issues which it was necessary for the judge to determine, these criticisms do not, in the light of all the material we have, justify the conclusion that the judge came to a decision which was based on an inadequate analysis of the facts.
25. That leaves the point that the judge, it is said by Miss Gumbel, failed adequately to explain why it was that he ultimately preferred the evidence of the respondents' experts as against the evidence of the appellant's experts. The judge clearly accepted that Mr Padwick was an experienced, responsible and careful obstetrician. He expressly found that Mr Padwick had made a vaginal examination in which he had come to the firm conclusion that the head was in the occipito-anterior position. In the light of that, it seems to me that he was entitled to conclude that the respondents' experts were presenting to him a more realistic assessment of the extent to which the mistake could properly be said to have been culpable, and explained adequately his reasoning for so doing in the passage to which I have already referred when indicating the conclusions to which he came.
26. Essentially, he was in that passage indicating that the evidence of those two experts and the evidence of Mr Padwick together was sufficient in his view to justify the conclusion to which he came. He had the advantage of both seeing and hearing those witnesses. It seems to me that, albeit in sparse form, there is sufficient in that passage to enable us to come to a conclusion which is a sound conclusion as to the reasons which impelled him to prefer them to the experts who were called on behalf of the appellant.
27. For those reasons it seems to me that the criticisms of the judgment, although to some extent (as I have already accepted) justified, do not at the end of the day persuade me that this is an appeal which should succeed. It seems to me that the judge was entitled to come to the conclusion that he did on the evidence that he heard and that the reasons that he gave were adequate, if not as fully expressed as one would have hoped.
28. I would therefore dismiss this appeal.
29. MR JUSTICE CRESSWELL: I agree.
30. LORD JUSTICE SCHIEMANN:I also agree.
31. (Appeal dismissed with costs; costs to be assessed if not agreed).