England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Case number HQ 03X03697 ROYAL COURTS OF JUSTICE STRAND LONDON WC2A 2LL
		8 July 2005

1. This case concerns Rebecca. She was born in the early hours of the morning of 10 November 1994. Sadly, she suffered injury during birth. She is now disabled, by dyskinetic cerebral palsy. It is common ground that this condition results from a short period of acute profound hypoxia which commenced at 02.54 and which caused irreversible brain damage after 03.00 on 10 November. The claimant claims that the hypoxic event was avoidable and that the defendant was in breach of the duty of care it owed her. The defendant denies liability.
2. This trial has concerned liability only, that is, whether or not the defendant was in breach of the duty of care it accepts it owed to the claimant and issues as to causation. We have not been concerned with quantum.
3. I am reminded that the standard of care is to be assessed by reference to the principals contained in Bolam v Friern Hospital Management Committee [1957] 1 WLR 482 and Bolitho v City & Hackney Health Authority [1998] AC 232. I am reminded of the passage in the judgment of Lord Browne-Wilkinson in Bolitho at page 243.
4. Mr Wilby QC, for the claimant, relies on the principles in Wisniewski v Central Manchester Health Authority [1998] PIQR 324, where the Court of Appeal held that, where a defendant fails to call a witness who is or may be able to provide important evidence in respect of any issue, the court must consider whether an adverse inference on that factual issue, or those factual issues, should be drawn. In this case, the defendant has chosen not to call some witnesses of fact.

Background

5. The claimant's mother is Mrs Walker. Rebecca was her first baby. Mrs Walker received treatment both from her GP and at the defendant's hospital during her pregnancy. Her first attendance at the hospital was on 21 April 1994. She was booked in for the birth. The estimated date of delivery was 20 November 1994. She attended the ante-natal clinic again in May, July, August and early September 1994. On 12 September 1994, Mrs Walker was involved in a car accident. She consulted her GP. At the end of September she attended the ante-natal clinic at the hospital. She was reassured that the fetus was unlikely to have been injured. Mrs Walker attended the hospital on 27 October (not a clinic date) and reported that, since the car accident, she had been concerned that there appeared to be reduced fetal movements. The Senior House Officer made a CTG recording of the fetal heart rate. This was reactive with a base line of 130-150 bpm. The SHO recorded 'baby heard and moved during monitoring'. It was recorded that Mrs Walker had complained of lower abdominal pain. The record shows that no serious condition was identified. On 30 October 1994 Mrs Walker attended hospital again, and again this was not a clinic date. She complained of low abdominal pain and occasional backache. A CTG was taken. This was recorded as reactive. Mrs Walker was discharged home. On 1 November 1994 she again attended and again expressed her concern at lack of fetal movement. She complained of some low abdominal pain.
6. Mrs Walker was admitted for further investigation on 2 November 1994. A CTG trace that day was recorded as reactive. An ultra sound scan that day showed both fetal head and body to be small. Mrs Walker was seen by Mr Fawdry, a consultant obstetrician and gynaecologist at the defendant's hospital and who had back-up responsibility for the team providing maternity care to Mrs Walker. Mr Fawdry kept Mrs Walker in hospital and a further CTG trace was obtained.
7. Mr Fawdry examined Mrs Walker on 3 November. He noted "IUGR but on palpation not particularly small". (IUGR is the abbreviation for intra-uterine growth retardation.) Mrs Walker was sent home.
8. On 7 November 1994 Mrs Walker attended the ante-natal clinic. She complained of abdominal pain. Mr Fawdry examined her. He noted "pain in abdomen, nerves catching hip, see growth chart? IUGR". He decided to admit Mrs Walker the following day for induction of labour. Mr Fawdry's note indicates his proposal for induction. He prescribed "use of prostin gel, up to three times only for ARM if very favourable. If any doubts after prostin times three then for a full assessment."
9. On the first day of trial the defendant accepted that Mr Fawdry should have considered the pregnancy to be 'high risk'. He had failed to do so.
10. On 8 November 1994 Mrs Walker was admitted to the hospital for induction of labour. A CTG taken that day shows a normal reactive trace with fetal heart rate (FHR) of about 140 bpm. The induction procedure was not begun that day.
11. On 9 November 1994, a vaginal examination was undertaken and then, at 09.50, the first dose of 2 mg of prostaglandin gel was administered. A CTG trace began at 09.46 and continued until 11.10. The record notes at 13.15 'having a few contractions'.
12. The next CTG monitoring began at 20.50 on 9 November. This continued until 23.10. The second dose of prostin was administered at 21.55. The records note that a vaginal examination was carried out at 21.55 for assessment and then insertion of gel. The record notes (insofar as is relevant here) 'vulva and vagina normal, cervix partially effaced, posterior; OS 1 cm dilated; membranes intact; prostin gel 2mg inserted and CTG recommenced'.
13. The CTG trace was discontinued at 23.10. A note in the record reads: "23.10. CTG discontinued. Occasional very rapid decelerations noted on CTG, good recovery and reactive trace. CTG discontinued. Mrs Walker up and about. Having some contractions."
14. Mr Walker was with Mrs Walker in the hospital at about that time. At about midnight on 9 November he went home. Mrs Walker's evidence is that, after her husband had gone, she managed to sleep fitfully. She says she was awoken in the early hours – she believes it was at 02.00 – when there was a spontaneous rupture of her membranes. There are issues as to the timing of the rupture of the membranes and as to the time of onset of labour. I return to these.
15. It is common ground that, after the rupture of the membranes, Mrs Walker pressed her buzzer. Midwife Hockly, one of the two midwives on duty in the ante-natal ward that night, attended her. There is an issue as to precisely what happened at that point. The hospital record reads (insofar as relevant) as follows:

"10.11.94 SROM at 02.20. Clear liquor. Vaginal examination to assess. Vulva and vagina normal. Cervix fully effaced and slightly posterior. OS 2-3 cm dilated…requesting sedation. Vomited small amount of bile stained fluid. Fetal heart 110-118. Regular. For transfer to delivery suite."

16. That note is signed by midwife Hockly. I return in due course to the issues raised by that note.
17. Midwife Hockly transferred Mrs Walker by wheelchair to the delivery suite. She handed Mrs Walker over to midwife Pearse who was on duty in the delivery suite that night. A note on the records, apparently made by midwife Pearse, records transfer from the ante-natal ward to the delivery suite. The time of that transfer as originally written down has been altered by being overwritten. It appears that the original time of 02.00 was subsequently amended to read 02.50, but that is not entirely clear and there is no explanation available to me.
18. Once Mrs Walker was in the delivery suite, the CTG trace was recommenced, at 02.50. From 02.51 there was a serious bradycardia of around 80 bpm. The FHR did not recover from that low level until 03.20. Thereafter it improved.
19. At 03.05 the obstetric SHO (Dr Cheah) was called. He arrived at 03.15. By the time he arrived, Mrs Walker had been prepared for a caesarean section. In fact, Dr Cheah decided not to proceed with a caesarean section. By 03.45 vaginal examination revealed the cervix was 8cm dilated. By 04.03, Mrs Walker could not stop pushing. At 04.05 the claimant was delivered. Mrs Walker's description of labour as 'violent' has not been challenged.
20. At birth the baby was flat. Paediatricians attended two minutes after the birth. The claimant was resuscitated. Apgar score was recorded in the notes as 6 at one minute and 10 at 5 minutes.
21. The records show that, while the placenta was complete, it was very small. The cord was short. The claimant weighed 2,100 gm. She was admitted to special care and was discharged on 28 November 1994.
22. The claimant's case is that she suffered an avoidable period of acute profound hypoxia, which commenced at 02.54 and lasted until about 03.15, which caused irreversible brain damage after 03.00. Professor Weindling (neonatologist) and Dr Ferrie (paediatric neurologist) for the claimant and Dr Rosenbloom (paediatric neurologist) and Dr Pearse (neonatologist) for the defendant, agree on balance, that if the claimant had been delivered by 03.00 she would have avoided brain damage.
23. The claimant's case is that the failure by Mr Fawdry and then by the midwifery and other obstetric staff to identify and treat the claimant as a high risk fetus led to a failure to put in place a care regime requiring high level monitoring by CTG, auscultation and regular physical examination to anticipate and detect fetal stress caused by the induction process and the process of labour. The midwifery staff had not been alerted to the fact that this was a high-risk induction and delivery. Accordingly, they failed to monitor the claimant's progress with appropriate skill and care. They failed to recognise and respond what the claimant considers to be non-reassuring features of the CTG trace on the morning and evening of 9 November 1994. Midwife Hockly should not have turned off the CTG trace at 23.10 hours. Had the CTG trace been continued after that time, it would have recorded an abnormal heart rate pattern. By 02.00 at the latest, it would have demonstrated a drop in the baseline rate to 110-118 bpm with decelerations. That pattern (as Mr Tuffnell for the defendant accepted in evidence) would have been evident between 02-20 and 02-51. If the deteriorating FHR trace had been identified and acted upon appropriately, the only appropriate response would have been an emergency caesarean section. Even if labour had not been established until 02.20, if treated with appropriate urgency the emergency caesarean section could nevertheless have been undertaken by 03.00 and the claimant would not have suffered injury. The defendant acknowledges that the claimant is entitled to an investigation into what happened but warns against speculation. The defendant makes the point that the nature of the injury which the claimant suffered, and which caused the injury is different from the chronic partial hypoxic stress of a non-damaging nature, to the signs of which the claimant claims the defendant should have been alive. The nature of the damage actually suffered by the claimant is so different that the one is not connected to the other. The defendant's case is that there is no evidence that the claimant was incapable of coping with the normal stress to be expected before the onset of labour. It is probable that there was no hypoxic period prior to the damaging hypoxic insult. At 02.20 the FHR was within the normal range. The defendant accepts that there would probably have been decelerations in the period between 02.20 and 02.51, but not to the extent that this could be characterised as a bradycardia. The evidence is that the claimant did in fact cope with hypoxic stress. She was likely to have coped with such stress during the period 02-20 until 02.51. There was no reason for Dr Cheah to have been called at any time before the damaging insult had occurred.
24. The expert obstetricians, Professor Walker for the claimant and Mr Tuffnell for the defendant, agree as follows. The ultrasound assessment indicated that the claimant was small for gestational age. Mr Fawdry should not have relied on his palpation on 3 November 1994 in preference to the ultrasound results. There were clear indications by 2 or 3 November 1994 that this was an at-risk pregnancy. Given that the CTG trace when it recommenced at 02.51 showed a fetal bradycardia of about 80 bpm (indicative of fetal distress) the midwife should have urgently summoned senior obstetric assistance. The midwife was wrong to have waited until 03.05 to summon that assistance. They also agree that Dr Cheah was wrong not to have appreciated from the history and abnormal CTG trace that there was clear evidence of fetal distress requiring an urgent delivery by caesarean section. They agree that the claimant, being both IUGR and premature (i.e. 36 weeks), was forseeably more vulnerable than would have been a normal full-term baby to the effects of labour and consequences of any hyper-stimulation of the uterus (if indeed that did occur) of rapid labour and cord compression. They agree that the damaging event was probably an ischaemic episode caused by compression of the umbilical chord after membranes had ruptured and as the fetal head descended into the pelvis.
25. Professor Walker and Mr Tuffnell both gave evidence at trial, as did Professor Weindling, Dr Ferrie, Dr Rosenbloom and Dr Pearse. .
26. Dr Nelson and Dr Kendall, neuroradiological experts, were in agreement on almost all matters they had been asked to address. Neither gave evidence at trial. They studied MRI findings taken on 16^th March 1996 when Rebecca was sixteen months old. These findings were not consistent with those which occur after an hypoxic ischaemic insult at around 30 weeks gestation. The pattern is characteristic of ischaemic insult after 34 weeks' gestational age. When a fetus suffers a period of profound asphyxial damage, the damage usually commences after about ten minutes of profound asphyxia. The extent of Rebecca's brain damage identified on the MRI scan was consistent with her having suffered a severe but sub-total hypoxic ischaemic insult between 02.50 and 03.15. Brain damage would have begun after ten minutes of circulatory collapse and would have continued until an adequate circulation had been restored at about 03.15.
27. I have reports, answers to questions and oral evidence from expert midwives, namely Professor Hunt for the claimant and Mrs Brydon for the defendant.
28. The parties have consulted specialists in ophthalmology, but it was agreed that evidence in this field be considered after the outcome of this trial.

Factual issues

29. Mr and Mrs Walker gave evidence, as did midwife Hockly. The defendant chose not to call midwife Pearse or Dr Cheah, who were both were involved with Mrs Walker in the delivery suite. The claimant criticises the defendant for not having done so. The defendant's position is that there was no need for it to have called any witness on whose evidence it did not wish to rely. The defendant had provided Dr Cheah's contact details, so the claimant could have called Dr Cheah herself. The defendant's decision on the evidence was made in circumstances where they had admitted at trial that, by 8 November, when Mrs Walker was admitted to hospital, Mr Fawdry should have considered the pregnancy to be high risk and where the defendant has admitted that midwife Pearse should have summoned obstetric assistance more quickly than she did after the CTG was recommenced at 02.51 and that Dr Cheah should have proceeded to deliver by caesarean section at 03.10.
30. An important issue has arisen as to the precise time of the rupture of the membranes, whether 02.00 as Mrs Walker now contends, or at 02.20 as the defendant contends, and as to whether midwife Hockly or midwife Pearse had conducted a vaginal examination at about that time. The defendant makes the point that neither of these issues was clear from the pleadings, so the defendant had not appreciated that it might need to call midwife Pearse to give evidence at trial on these matters. The defendant also makes the point that it had informed the claimant, prior to trial, that its intention was not to call Mr Fawdry, Dr Cheah or midwife Pearse to give evidence at trial.
31. I need to consider the factual issues in the light of those circumstances and in accordance with the principles set out in Wisniewski to which I have already referred.
32. As the defendant now accepts, they were concerned with a small, high-risk fetus. The claimant's case is that no appropriate treatment plan was put in place. As a result, the induction of labour was treated as a normal 'low risk' induction. Midwife Hockly was candid in accepting that she did not recall this matter. In giving her evidence she was relying on the notes she had made. It appears that she treated this as a normal, low-risk induction.
33. There is a space at the top of one of the pages in the hospital records, a box marked 'special features', where matters of significance might be recorded. The claimant's case is that her records could and should have included a note, in that box, to the effect that this was an IUGR and high-risk fetus. No such note was made. The defendant's case is that the reasons for induction, and therefore the risks, were contained in the records. A further iteration was therefore unnecessary and was not usual practice.
34. The evidence of Mrs Brydon, for the defendant, was that any induction pre-term carries risk. A midwife in midwife Hockly's position would have been able to read and understand the position from the clinical notes. However, as we have seen, midwife Hockly appears not to have picked up the fact that this was a high-risk case.
35. In my judgment, it was not sufficient in this case simply to hope that those who would have the care of Mrs Walker would read back into the notes and appreciated from these that this was an IUGR and high-risk fetus. I accept that, on the change of shift for the midwives, there would have been an overlap of about 30 minutes in which the outgoing and incoming midwives would have had the opportunity to consider each of up to 30 patients on the ante-natal ward. Further, given that Mrs Walker had been admitted on 8 November, by the evening of 9 November there would have been at least two such handovers between midwives on the ante-natal ward. However, it was not obvious from the clinical notes that staff were concerned with an IUGR and at-risk fetus, and I can have no confidence that these matters were identified by the midwives on the ante-natal ward. I am not persuaded that this information was passed on at the handovers.
36. I conclude that Mrs Walker was treated on the ante-natal ward without the appreciation which the staff could and should have had if there had been sensible and appropriate use of the clinical notes of the consequence of the fetus being so identified as IUGR and at risk. As Mr Wilby submits, this failure colours the whole of the case.

Plan

37. The note which Mr Fawdry made on 7 November was to the effect that Mrs Walker was to be treated with up to three doses of prostin gel and if there were any doubts after those three doses had been administered, then there was to be a full assessment.
38. Professor Walker and Professor Hunt are both critical of the failure to record the risk factors, including for example, the road accident, diminished fetal movement and the fact that the fetus was of 36 weeks gestation. Had such factors been identified, the midwives would have understood the reason for the induction. Professor Walker criticises the lack of a detailed treatment and care plan.
39. In his report dated 3 September 2004, Mr Tuffnell made no criticism of Mr Fawdry. That criticism came only at the experts' meeting. That gives rise to some concern in relation to his evidence. Mr Tuffnell explained that he has a particular interest in risk management, and indeed had such an interest in the early 1990's prior to 1994. His opinion is that the plan in terms of the administration of prostaglandin was reasonable. Induction is commonplace in women at increased risk. It was not common practice to detail, in the hospital notes, all the observations and actions expected to provide reasonable care. The consultant could reasonably rely on the patterns of practice in place in the unit to provide reasonable care.
40. Mrs Brydon in her report expresses the opinion that, in 1994, it was not common for a plan to be made as the claimant suggests other than a description of the type of induction to be performed.
41. However, the views of Mr Tuffnell and Mrs Brydon do not accord with those expressed in relevant textbooks. For example, Turnbull's Obstetrics 2^nd Edition 1995 states:

"Explicit action plans are required so that all members of the team and the woman herself know what is going to happen. The basic skill required in providing adequate care in labour is the ability to recognise abnormality when it occurs and to have a clear plan of corrective action."

42. Mr Tuffnell made reference to an earlier edition of Turnbull, an edition dated 1989. The relevant passage in that edition reads:

"Ante-natal care is all about management and planning. Its most important but not sole function is risk management. Plans must be produced and then applied. Production of a plan requires a balance between what is needed and what is possible. The way to achieve it and assess results must be decided beforehand. To give an extremely and fortunately rare example, sympathy at the loss of a baby does not amount to much if properly organised care could have prevented it in the first place".

I am also referred to Steer: Safe Practice in Obstetrics and Gynaecology 1994 Edition at page 76:

"The growth retarded baby identified before or on admission in labour is flagged for special care with continuous electronic fetus monitoring, careful use of oxytosic therapy and no undue prolongation of the labour process".

43. Following the principles in Bolitho, in my judgment the opinions expressed by Mr Tuffnell and Mrs Brydon are not logically supported by what the contemporaneous text books suggest is sound practice. In relation to the preparation of a plan, I reject the opinions of Mr Tuffnell and prefer those of Professor Walker, namely that there should have been clear instructions from Mr Fawdry as to the treatment he proposed. He should have made a note identifying the need for appropriate monitoring to assess fetal well-being. By failing to do so, Dr Fawdry fell below the Bolam standard.
44. I accept Professor Walker's evidence is that, had an appropriate plan been prepared and noted on the records, this would have included the need for regular CTG monitoring to check fetal well-being during induction and the process of labour, the impact on the fetus of administering prostaglandin, regular assessment of maternal and fetal well-being by the obstetric and midwife staff with a low threshold for suspicion for any abnormal CTG trace and/or auscultation findings. These matters were not recorded in the notes.

Labour

45. In issue is when Mrs Walker's labour began. Labour is a process. It may not be clear precisely when labour begins. The claimant's case is that it began shortly at or after 23.10 on 9 November 1994. The defendant's case is that labour began after rupture of membranes, whether at 02.00 or at 02.20 hours.
46. The claimant relies on the following matters. Steer identifies two components for the test for labour, namely progressive cervical dilation and regular painful uterine contractions. At page 191, Steer says:

"Usually these two occur together but unfortunately sometimes they do not and this can cause confusion and inappropriate management. The only absolute proof that labour is established is significant cervical dilation from one vaginal examination to the next."

47. Steer identifies a latent and an active phase to labour and states: "During the active phase the cervix dilates progressively"
48. Williams and Blanchard: Electronic Monitoring of the Fetal Heart, 1994 edition, identifies that uterine contractions provide valuable information about the progress of labour but note that a woman does not usually feel the pain of a contraction until it reaches a defined level. In other words, there may be labour with no contractions at all, or the contractions may not be sufficient to be painful, or they may be mild.
49. Labour is also generally considered to be defined as the onset of regular, painful, uterine contractions.
50. Here, the records show that, at 21.55, the cervix was partially effaced, OS 1 centimetre dilated, and, at 02.20, that the cervix was fully effaced and slightly posterior, OS 2-3cm.dilated. The CTG trace between 23.02 and 23.10 shows nine uterine contractions. The note on the trace at 23.10 states: "Occasional very rapid deceleration noted on CTG". Such rapid decelerations can be indicative of labour.
51. A manuscript note headed 'Summary of Labour' was apparently made by midwife Pearse. It is presumed that the note was made after delivery of the claimant. It records the onset of regular contractions at 23.10. and the time of onset of the second stage of labour at 04.03. A typed discharge letter records: "Membrane to birth: 1 hour 45 minutes; first stage 4 hours 53 minutes; second stage 2 minutes". If one works these timings backwards, one arrives at 23.10 as the time for the onset of the first stage of labour.
52. The experts' evidence, supported by Turnbull, is that progress in labour for a primigravida (as Mrs Walker was with the claimant) is usually slow, from 2-3 centimetre dilation, and takes up to four hours. It is common ground that in between 88% and 94% of cases, SROM is preceded by at least two hours of contractive activity. The claimant relies on these matters and on Mrs Walker's own description of the pain she was suffering at various stages. The claimant also points to the fact that if labour began at 02.00 or 02.20, the period to delivery would have been only 1.75 – 2 hours. That would be an amazingly fast labour when the norm for a primigravida is ten hours. However, if labour had begun at 23.10, then the total period would have been some 4 hours and 55 minutes.
53. The defendant's case is as follows. The records refer to a few contractions at 13.15 on 9 November. It is not suggested that these were indicative of the onset of labour or that these were other than the source of uterine activity associated with the ante-natal period. It is difficult to discern any difference between Mrs Walker's description of these contractions and those she described later. Mrs Walker was able to sleep, albeit fitfully, between about midnight and SROM. Midwife Hockly's note at 23.10 suggests that Mrs Walker did not specifically describe herself as having contractions. The evidence of midwife Hockly is that she presumes that she did not consider that Mrs Walker was in labour because she had made no note to that effect. She would have noted 'painful contractions' if that is what she had observed or what Mrs Walker had reported. Midwife Hockly sent Mr Walker home; she was unlikely to have done that if she had believed that labour had started. Had she thought labour had started, she would have taken Mrs Walker immediately to the delivery suite. Whilst in the great majority of cases (88%-94%) contractions have begun at least two hours before SROM, this must have been one of those cases, which fell into the 6%-12% of those where SROM preceded contractions. The defendants contend that there could not have been onset of labour in circumstances where Mrs Walker had been sleeping or dozing, albeit fitfully, for a couple of hours.
54. I have heard Mrs Walker's own evidence. She said that, after the first dose of prostaglandin had been administered during the morning of 9 November, she had experienced pain and had been reassured that this was just a 'practice pain'. After her husband left at about midnight she was dozing in bed. She was very uncomfortable in herself anyway – she was rather large. She was uncomfortable, tossing and turning for the couple of hours before SROM. She would doze off, sleep for five or ten minutes at a time, wake up, alter position and try to sleep again. The discomfort she felt was lower backache and pains in her abdomen. She thought she was in labour. The feelings she was experiencing were those she was expecting to feel given what she had been told it would feel like. Before she had been admitted to hospital, she had suffered occasional backache and stabbing, sharp abdominal pains. What she felt after admission to hospital was different from that. After SROM she was not in pain. The pain did not begin until after a transfer to the delivery suite. The pain began shortly after her transfer to the delivery suite.
55. Malcolm Simmons in Essential Obstetrics and Gynaecology, 2^nd Edition, explains that labour is divided into three stages. The first stage commences with the onset of labour and terminates when the cervix has reached full dilatation. The second stage begins at full dilatation and ends with the expulsion of the fetus. He refers to the onset of labour as follows:- "It is often difficult to be certain of the exact time of onset of labour, however it is defined as the development of regular, painful, uterine contractions producing progressive dilatation or the cervix."
56. I accept Professor Walker's evidence that it is not uncommon for a woman to be awoken by the SROM. In circumstances where in 88%-94% of cases there will have been some two hours of contractions before SROM, one can see that it is possible for a woman to sleep through that stage.
57. I accept Mrs Walker's evidence as to the nature of the pain she was experiencing. It was different from the pain she had experienced before admission to hospital. It felt to her like the sort of pain she would have been feeling in labour. As I have just explained, Mrs Walker's being able to sleep or doze fitfully through those two hours is not necessarily inconsistent with the onset of labour.
58. Even with the onset of labour at or shortly after 23.10, the overall time to delivery was unusually short at 4 hours 55 minutes. It seems to me less probable with a primigravida that the overall period would have been as little as 1 hour 55 minutes.
59. There is nothing to indicate why this might be a case which falls into the category of the 6%-12% of cases where the onset of labour begins after SROM. On balance of probabilities, given the overwhelming statistics - 6%-12% as against 88%-94% - it is more likely that this case fell within, not without, the norm.
60. In all the circumstances, in my judgment it is likely on the balance of probabilities that there was the onset of labour from about 23.10.

02.00 or 02.20?

61. A key question is whether SROM occurred at 02.00, as the claimant contends, or at 02.20 as the defendant contends.
62. In giving her evidence orally Mrs Walker said that the membranes ruptured at around 02.00. She believed that was the time because she was fairly close to the nurse's station where they have a clock. She had always had it in mind that this had occurred at 02.00. She said it was not something one would forget. She realised that her husband had only just gone home and would have to return. She said that 02.00 stuck in her mind very clearly. She also mentioned that she had been in bed, with the curtains drawn, so the midwife could not see her.
63. However, all the documents in the case present a different picture. The clinical notes contain a record that SROM occurred at 02.20. The manuscript summary of labour (to which I have already referred) notes the time of SROM as 02.20. In the letter before action dated 20 March 2000, the claimant's solicitors stated that there had been rupture at 02.20. The particulars of claim were re-re-amended at the beginning of the trial, to plead rupture at 02.00 instead of at 02.20. The two previous versions had pleaded rupture at 02.20 and Mrs Walker had signed the statement of truth on those particulars of claim.
64. Mr Wilby submits that Mrs Walker's position had always been that SROM had occurred at about 02.00. In giving her evidence, Mrs Walker referred to instructions which she had given to her solicitors early in the case and before she had seen the hospital records. She did not, however, state in terms that she had told her solicitor that SROM had occurred at 02.00 and Mrs Walker has not produced the note made by the solicitor. I do not find that evidence helpful.
65. I found midwife Hockly to be an honest witness. She did not recall the events but I have no reason to doubt her evidence that, in making the clinical note, she would have attempted to make an accurate record. Midwife Hockly confirmed that the entry in the clinical records concerning SROM and subsequent events had probably been written by her after she had transferred Mrs Walker to the delivery suite and had returned to the ante-natal ward.
66. Mr Wilby points to the apparently conflicting evidence of midwife Hockly and the record made by midwife Pearse as to the time of transfer. As I have indicated, the time on the record appears to have been changed from 02.00 to 02.50. Midwife Pearse has not given evidence to explain this entry, which appears to have been made by her.
67. Midwife Hockly said that, after she had carried out the necessary tasks consequent upon the rupture, she would have telephoned Mr Walker. His evidence is that he immediately telephoned his father, who came to collect him and they drove to the hospital straight away. All of that would have taken about 45 minutes. Mr Walker arrived probably shortly before 03.15. That is consistent with his having been contacted shortly after 02.20.
68. I have given very careful consideration to the evidence on this important issue. I am not persuaded, on balance of probabilities, that SROM occurred at 02.00. I accept that midwife Hockly made as accurate a note as she could, and she noted that this event occurred at 02.20. I am not persuaded that Mrs Walker has a clear recollection of this having occurred at 02.00.
69. In all the circumstances, in my judgment, it is more likely that SRM occurred at 02.20 than at 02.00.

Was a vaginal examination carried out in the ante-natal ward or in the delivery suite?

70. Midwife Hockly noted that she had carried out a vaginal examination. She recorded the result of that examination (as I have set out earlier). Mrs Walker's evidence is that after SROM, she did not have a vaginal examination in the ante-natal ward. She explains that she had lost a lot of water and described graphically how the waters had soaked the bedding and poured off the bed. Her evidence is that she had a vaginal examination only when she got to the delivery suite.
71. Midwife Pearse prepared a statement in which she said:

"2 I have no recollection of Mrs Walker … or of her daughter Rebecca. My statement is therefore based upon my usual practice and the entries I have made in the health records.

3. My first involvement with Mrs Walker occurred at 02.20 on 10 November 1994. I examined Mrs Walker and noted that she was 2-3cm dilated. The foetal heart rate was 110-118 bpm and regular.

4. At 02.50 I noted that Mrs Walker was transferred from the ward to the delivery suite."

72. The claimant suggests that that statement supports Mrs Walker's evidence as to where the vaginal examination was carried out. Mr Wilby submits that, following Wisniewski, it is not open to the defendant to rely on any evidence from midwife Pearse as the defendant chose not to call her to give evidence.
73. It seems to me right that I consider all evidence properly available. I find midwife Hockly's evidence persuasive. I have no reason to doubt that she recorded accurately what she did before transferring Mrs Walker to the delivery suite. It would have been her normal practice to do a vaginal examination before moving her patient to check, for example, for cord prolapse.
74. I am not persuaded that Mrs Walker has an accurate recollection. It is understandable that she found the SROM to be dramatic. But the event would have been less dramatic to midwife Hockly who was accustomed to such events. Midwife Hockly explained that it is likely that she used incontinence pads to help mop up the liquor while she did the vaginal examination. That would not have been an unusual course of action for her. As between midwife Hockly and Mrs Walker, I prefer the evidence of midwife Hockly on this point.
75. Mr Wilby places emphasis on midwife Pearse's statement. However, it appears on the face of the statement that midwife Pearse is muddled. In paragraph 3 of her statement midwife Pearse stated that she had examined Mrs Walker and noted that she was 2-3 cm dilated and that FHR was 110-118 and regular. That is, in fact, reciting the note in the record which, I have accepted, midwife Hockly made and signed. Midwife Hockly made and signed that note because she had done the examination of Mrs Walker and had listened to and recorded the FHR. It would be artificial in those circumstances for me to place any reliance on paragraph 4 of midwife Pearse's statement and conclude that she, not midwife Hockly, had done the vaginal examination and listened to the FHR.
76. In all the circumstances I accept that midwife Hockly undertook a vaginal examination on the ante-natal ward before transferring Mrs Walker to the delivery suite.

CTG traces

77. I heard a great deal of evidence about the traces available here. We are concerned principally with traces made on 9 November from 09.46 until 1100 and then beginning at 20.50, interrupted for the administration of the second dose of prostaglandin and continued at 21.55 then discontinued at 2310.
78. The uncertainties in interpretation of CTG traces are illustrated by the substantial time spent in cross-examination of the expert witnesses on this topic. There is a difference of opinion between Professor Walker and Professor Hunt on the one hand and Mr Tuffnell and Mrs Brydon on the other as to the interpretation of the traces. Professor Weindling, Dr Pearse, Dr Ferrie and Dr Rosenbloom agreed that analysis of traces was more appropriately left to the consultant obstetricians, i.e. Professor Walker and Mr Tuffnell. I have done my best to understand whether the interpretation which Professor Walker and Professor Hunt place on the traces, in the light of the principles set out in Gibb, is to be preferred to that of Mr Tuffnell and Mrs Brydon. It seems to me that it cannot be said that the experience of Professor Walker is more or less relevant than that of Mr Tuffnell in relation to the interpretation of traces. I am not persuaded that, for reasons of lack of relevant experience or expertise, I should reject the opinion of one and accept the opinion of the other. The same applies as between Professor Hunt and Mrs Brydon.
79. The defendant submits that the changes on which the claimant relies are, as Mr Francis QC for the defendant put it, so miniscule – that these should have provoked such concern at the time as to require midwife Hockly to have called for assistance from the obstetrician or to have continued further monitoring – as to go beyond the bounds of reasonableness.
80. I accept the submission of Mr Wilby QC that the CTG traces should have been considered not as a routine matter but in the context of induction of a 36-week fetus IUGR and in the knowledge of the known risks of the adverse consequences of the administration of prostaglandin. The claimant's case is that, viewed in that context, each of the traces was suspicious and required to be continued longer than in fact they had been run. The evidence of Professor Walker and Professor Hunt is that there were features of each of the three traces which were suspicious within the principles identified in the FIGO guidelines and as explained in Gibb: Fetal Monitoring in Practice, 1992. The defendant's case is that the traces indicated fetal well being.
81. I approach the extensive evidence I have heard about the interpretation of traces with caution. I bear in mind that traces are usually considered on the ward. It would not, for example, be normal practice to do as Professor Hunt did when considering the issues in this case, namely to take a ruler and place it on the trace to help identify base line, accelerations and decelerations. I also bear in mind that the desirability of carrying out CTG monitoring must be balanced against the need for the mother to be able to rest and to move around. Finally, I bear in mind that the traces should have been viewed against the background that this was a vulnerable fetus.
82. A number of textbooks explain how a trace should be interpreted. Gibb identifies that a normal pattern requires all of the following:

i. Baseline rate 110-150 bpm;

ii. Amplitude of baseline variability 5-25 bpm;

iii. Absence of decelerations, except for sporadic, mild decelerations of very short duration; and

iv. Presence of two or more accelerations during a ten-minute period.

83. Gibb identifies a suspicious pattern at any one of the following:

i. Baseline rate 150-170 bpm or 110-100 bpm;

ii. Amplitude of variability between 5 and 10 bpm before more than 40 minutes;

iii. Increased variability above 25 bpm;

iv. Absence of accelerations for more than 40 minutes;

v. Sporadic decelerations of any type and less severe (severe falls within the pathological category).

84. The claimant's case is that the trace carried out between 09.46 and 11.00 was reactive with some good variability; decelerations recorded at 10.26 and 10.31 were obvious decelerations, which clearly put the trace into the suspicious category. The claimant's case is that these should have been identified as decelerations and the trace should have been continued. Mr Tuffnell's opinion was that the trace was within the normal or reassuring parameters, given the presence of a significant number of reassuring accelerations.
85. In my judgment the trace was largely reactive. There was an episode of deceleration at about 10.30 which is not concerning in itself. I am not persuaded that the 0946-1100 trace was suspicious.
86. The next trace was begun at 20.50. At 21.55 the second dose of prostaglandin was administered and the trace was then continued. The claimant's case, supported by her experts, is that the trace prior to the second dose of prostaglandin was non-reassuring because there had been changes from the previous trace. There was a relative lack of variability and accelerations. It was not suspicious at the time but was concerning and should have been continued.
87. Professor Hunt's opinion is that this CTG gave rise to concern because of the diminished base line and lack of variability between 20.50 and 21.15. Mrs Brydon expressed the opinion that there were no non-reassuring features on the CTT prior to the administration of the second dose of prostaglandin at 21.55.
88. Professor Hunt was of the opinion that midwife Hockly should have asked the opinion of an obstetrician before giving a second dose of prostaglandin. Mrs Brydon was of the opinion that, as there were no non-reassuring features and the trace was not suspicious, it was not necessary to consult an obstetrician before giving the second dose. There was nothing to suggest that midwife Hockly should not have proceeded to administer the second dose as Mr Fawdry had planned.
89. Mr Tuffnell's opinion was that this was normal with a base line of about 125 bpm, variability between 5 and 10, accelerations and no decelerations. It was a normal CTG. There was no significant uterine activity detected on the tocograph.
90. In my judgment, the trace in itself was reassuring. I am not persuaded that the 09.46-11.00 trace should have been treated as suspicious. I am not persuaded that any differences between the 20.50-21.55 trace and the 0946-1100 trace would have been obvious. Nor am I persuaded that there were non-reassuring features prior to 21.55 such as should have caused midwife Hockly to have consulted Mr Fawdry before administering the second dose of prostaglandin. I am not persuaded that the decision by midwife Hockly not to call an obstetrician to review matters and consider whether to administer the second dose of prostaglandin was such as fell below the Bolam standard, as clarified and expended in Sidaway v Governors of Bethlehem Royal Hospital [1985] AC 871.
91. The trace was continued at 21.55, after the second dose of prostaglandin, and discontinued at 23.10. The claimant's case is that this trace became progressively less reactive over time. It contained obvious decelerations. After the machine was adjusted at 20.50 there was then a period of obvious reduced reactivity for 10 minutes, with the baseline dipping from 140 to 130 bpm. Then the trace changes, being obviously very reactive rising to a base line of 150 bpm. Applying Gibb, this would indicate an attempt by the fetus to compensate in response to evolving hypoxia. The trace should have been continued after 23.10. The defendant's case is that this trace shows normal reactivity and is similar to earlier traces. The so-called decelerations were explicable by loss of contact of the machine.
92. In the opinion of Professor Walker, the trace was less reactive than previous traces with decelerations, suggesting deterioration in the fetal well being, but with no evidence of fetal damage. This was a reactive trace demonstrating a non-hypoxic fetus, but with probable decelerations at 22.21 and 22.24 and again at 22.37 and a small deceleration at 22.35. These were concerning and should have led to a continuation of the trace.
93. Mr Tuffnell's opinion was that the CTG was acceptable with normal variability and accelerations. The base line was 130-140 bpm, variability at around 10, there were a number of accelerations and a period of prolonged acceleration until the trace was discontinued. Mr Tuffnell accepts that there is one area at 22.21 which might be a deceleration but which is in fact recorded as possibly being due to loss of contact. It would be reasonable to interpret that as a loss of contact. The area at 22.37 might have been a deceleration or a loss of contact. In his opinion, the other areas identified by Professor Walker as decelerations cannot be so categorised.
94. Professor Hunt's opinion was that the trace was non-reactive with reduced baseline activities. Further, there was an abnormal contraction pattern. There was an indication, in her opinion, of deterioration in the fetal well-being.
95. Mrs Brydon expressed the opinion that there were periods of loss of contact, which is not unusual. Mrs Brydon disagrees that the trace was non reactive or that there were abnormal decelerations or reduced baseline variability. The tocograph recorded some uterine activity but not an abnormal contraction pattern.
96. The tocograph was adjusted at 22.50. After that, one sees a period of reduced activity and then the trace changes. In addition, after the adjustment of the tocograph, one sees evidence of greater uterine activity. I do not consider that what is shown following that adjustment is similar to what had been occurring before the adjustment. In my judgment, this indicated an increase in fetal activity. I accept that, in the seven to ten minutes before monitoring was discontinued, the trace shows that baseline rose to over 150bpm. This was a rise in bpm compared with earlier parts of that trace. As I have found, labour was beginning at about this time. The CTG trace shows activity more typical of the onset of labour than of normal antenatal fetal and uterine activity.
97. Professor Hunt and Mrs Brydon agree that the decision when to discontinue a trace is a matter of clinical judgment. As Professor Hunt explained, a midwife must balance the mother's need for rest and the desire to get things moving by mobilising. Monitoring by CTG trace is disruptive: it prevents the mother both walking and sleeping.
98. On balance, I am persuaded that the trace following the adjustment of the tocograph was suspicious. It was less reactive than it had been and with decelerations. In the final seven to ten minutes before the trace was discontinued, the baseline was rising. From the adjustment onwards, this was not a reassuring trace. Given an IUGR fetus, in my judgment that trace did give rise to concern and was such that monitoring should have been continued. In my judgment, the defendant failed in its Bolam duty to the claimant by discontinuing the CTG monitoring at 23.10.

The probable FHR after 23.10 and timing of a caesarean section.

99. The CTG was discontinued at 23.10. At 02.20 on auscultation the FHR was recorded at 110-118 bpm. A CTG trace was begun at 02.50/02.51. This showed a marked bradycardia of about 80 bpm. FHR returned to normal at about 03.20. It is common ground that the damage occurred after 02.50 and probably between 03.00 and 03.15. Prior to that, the fetus was exposed to a period of non-damaging hypoxia. The obstetric experts agree that the cause of the bradycardia was a cord compression. The paediatric experts agree that the brain injury was consistent with a short period of profound cerebral hypoxic ischaemia and that damage was most likely to have commenced at or soon after 03.00. They agree that no further damage occurred after the 03.15. The neuro-radiologists agree that there was a severe but sub-total insult between 03.00 and 03.15 and that the damage was caused by cord compromise coinciding with the period of documented bradycardia.
100. The claimant's case is that if FHR had been recorded, by CTG or auscultation during the period from 23.10 until SROM at 02.00/02.20, this would have shown a fetal tachycardia followed later by a bradycardia some time between 23.12 and 02.20. Initially there would have been evident increased decelerations, increased baseline and decreased variability. By 01.00, there would have been evident reduced variability, reduced baseline and persistent decelerations. This pattern was caused by the stimulus of the prostaglandin on the uterus, causing significant uterine activity, reducing the oxygen flow to the fetus and, as the fetus reserves depleted, the slowing of FHR. The claimant was a gradually depleted fetus unable to cope with the rigours of this part of labour. The only reason why the deterioration was not ascertained and its significance appreciated by the defendant was the failure to have sufficient monitoring either by CTG or supplemented by manual auscultation when CTG was not in place. This deprived the defendant of crucial information which would have educated the treatment. Had this information been available to the defendant, then an assessment could have been made by a suitable obstetric doctor to deliver Rebecca prior to 03.00. This would have avoided her irreparable brain damage.
101. The claimant relies upon the evidence of Professor Weindling, who has considered what the likely FHR would have been between the end of the trace at 23.12 (as he takes the timing to be) and at the beginning of the final trace at 02.50. In undertaking the reconstruction, Professor Weindling assumed a FHR base line of about 130 bpm between 20.41 and 23.12 and that FHR remained at 130-140bpm until 7 minutes before 23.12, when it rose to about 150 bpm. He notes that, at 02.20, FHR on auscultation was recorded at 110-118. CTG monitoring began at 02.51. This showed a marked bradycardia of about 80 bpm. FHR returned to normal at about 03.20.
102. Professor Weindling's opinion is that it is likely that there was a fetal tachycardia, which was occurring when the CTG recording was discontinued at 23.12. Since Rebecca was damaged through severe cerebral hypoxic ischaemia and there was a critical bradycardia, which was present when the trace was restarted at 02.51 and which continued until 03.20, it is likely that damage took place during this period. It is likely that the bradycardia was already in progress when the CTG was started at 02.51 and that it had been going on for some time previously. When the auscultation was carried out at 02.20, FHR of 110-118 was significantly lower than the base line previously shown on the trace. It was still not critically slow, but since FHR was critically slow at 02.51, and must have been slow for some time before that, it was probably slowing at 02.20.
103. In Professor Weindling's opinion, it is likely that Rebecca responded appropriately to hypoxic stress before 02.51. Such an appropriate response would have been in the form of the fetal tachycardia. However, there was already some slowing of the FHR when auscultation was performed at 02.20, compared with FHR at 23.12. He considers that it is likely that there was fetal tachycardia between 23.12 and 02.20 and this would have been apparent on a trace had this been continued. Professor Weindling considers that there was a very significant relative fall, from 140 rising to 150 bpm at 23.10 down to 110-118 at 02.20. However, the baseline was still above the level at which hypoxic damage is suffered, so no such damage occurred. He is of the opinion that, initially, after 23.10 there would have been increasing decelerations, an increasing baseline and decreasing variations. In the early period of labour, the pause between contractions would have allowed the fetus to recover and thus the fetus did not suffer damage. As the fetus began to tire, FHR would fall. He considers that there would have been clear signs on a CTG of fetal distress, allowing a decision to deliver by caesarean section to have been made at the latest by 02.30. This would have permitted delivery to have been achieved before 03.00.
104. Professor Walker is of the opinion that, if recording had continued after 23.10, it would have shown increasing uterine activity with increasing signs of fetal compromise with regular decelerations and loss of beat-to-beat variation. His opinion is that there would have been a period of Tachycardia followed by a period of increasing severe bradycardia before commencement of the tracing at 02.51.
105. At the experts meeting, Professor Walker agreed that if there had been continuous CTG monitoring from 23.10, abnormality and fetal distress would have been shown before 02.20, but when the abnormalities were bad enough to act would be difficult to assess. Certainly by 02.20 when the membranes ruptured there would have been clear evidence of fetal heart abnormalities. Professor Walker also agreed that the damaging event was most likely to have been compression of the cord after rupture of the membranes as the head descended into the pelvis, coinciding with the documented bradycardia at and after 02.51, but that some evidence of cord compression would have been seen before this. Professor Walker confirmed that the CTG would have shown continuing uterine activity and consistent decelerations which would not necessarily be damaging. There would have been decelerations occurring persistently before 02.51 but progressively less concerning the further back they were seen: the abnormalities would have been seen since and probably before 02.20.
106. Professor Weindling confirmed that in most cases a growth-restricted fetus is not damaged by partial hypoxia. Here, the fetus had coped in the appropriate way with partial hypoxia; she had been able to cope with the hypoxic stress prior to the damaging episode. The most serious effects are towards the end of labour when the reserves have become depleted. Here, Rebecca had a very small placenta so small reserves. It was put to Professor Weindling that it was more likely – as the defendant contends - that Rebecca was coping well before 02.20 and indeed she coped well again after 03.00. He replied that we could not know what was happening; certainly the fetus was coping.
107. Dr Pearse for the defendant makes the point that it is very likely that placental insufficiency was a factor in the claimant's growth failure. It is difficult to conceive that there was sufficient reserve for her to have recovered from the period of acute relatively profound asphyxia, which she experienced, but that appears to be what happened. Dr Pearse is puzzled by that. He concludes that the period of asphyxia is unlikely to have been longer than 25 minutes. In his opinion the claimant developed a profound bradycardia by 02.51, which remained unrelieved until 03-15 when her heart beat spontaneously improved.
108. Mr Tuffnell accepted that the pattern which Professor Walker and Professor Weindling identified for the period 02.20 to 02.53 was likely to have occurred and he accepted that there can be a significant period of partial or chronic hypoxia without causing either organ or brain damage. (I accept that the initial FHR response to contractive activity is tachycardia, not bradycardia as Mr Tuffnell at one stage suggested. This causes me to be cautious in the reliance I place on Mr Tuffnell's evidence.)
109. The defendant submits that it is difficult to see how further damage would not have been done to the fetus after 03.15 if something other than acute cord compression had been a factor. Professor Walker's hypothesis does not address the indisputable, if unusual, fact that, here, the fetal condition improved after 03.15 to the extent that minimal, if any, resuscitation was required at delivery. Professor Walker did not accept that concerning signs would not have been apparent until about or after 01.00. Professor Walker's opinion must proceed on the premise that there were labour contractions sufficient to cause fetal distress, albeit non damaging. It presupposes that the fetus was able to cope but only by a tachycardiac response producing a heart rate outside the normal range, or decelerations from which there was recovery. Apart from the fact that the fetus was IUGR and therefore potentially vulnerable, there is no evidence that the actual response of the fetus would have been outside the normal range. I note, however, Turnbull and Gibb indicate that the fact that something is within the normal range is not in itself reassuring.
110. The defendant submits that the logical position is that Rebecca cannot have been subjected to abnormal stress or reacted in an abnormal way. She succeeded in coping with hypoxic stress after the acute episode. It is highly unlikely that she could have been subjected to stress before SROM without depletion of her limited reserves thus disabling her coping mechanisms following the cord compression. Therefore either there were no significant contractions before SROM to cause stress or she was able to cope with the stress by heart rate changes within normal limits. To propose otherwise is to stray into speculation unsupported by evidence.
111. Professor Weindling agreed in cross-examination that if there was a normal response and FHR was within normal limits, an adverse outcome would not be predicted. He agreed that Rebecca's response (with the exception of the cord incident) had been adequate. The defendant submits that this must have been so, given the outcome, which all have agreed was surprising or extraordinary. It would clearly have been even more surprising, as was accepted by Professor Weindling, for that result to follow after an added period of stress before 02.20, especially given the very small size of the placenta.
112. Professor Weindling's hypothesis was significantly different from that of Professor Walker. It presupposed a tachycardia from 23.10 and that there was a bradycardia in progress at the beginning of the 02.51 trace. Professor Walker's evidence was that, after 23.10, he would have expected continued and increasing decelerations, loss of variability and an increasing baseline. Professor Weindling accepted that normally when there was decompensation following stress there is a sudden bradycardia. A slow descent of the baseline from before 02.20, followed by a plateauing until after 02.51, does not fit that pattern.
113. I must decide whether the failure by the defendant to continue monitoring at 23.10 is likely to have caused the injury which Rebecca suffered. Although Rebecca was an IUGR baby and thus more vulnerable to depletion of reserves, she did, in fact cope with hypoxic stress after the episode which caused the damage. The defendant makes a strong case in opposition to the contention that Rebecca was not capable of coping with the normal stress to be expected before the onset of labour. The defendant contends that there is insufficient evidence that this high-risk and vulnerable fetus would not have been able to cope with the usual range of hypoxic stress to which a fetus is exposed. Indeed, she did cope with this after the profound hypoxic episode, when her reserves must have been even more depleted than before the period of profound hypoxia. At 02.20 FHR was within the normal range, albeit at the bottom end of the normal range. Their case is that, had the monitoring been continued after 23.10, the trace would not have indicated that the fetus was not coping: the fetus coped after the profound hypoxic episode; logically, she must have been able to cope better before that episode when her reserves were not so depleted. Professor Weindling was understandably unable to say for how long the trace should have been continued after 23.10.
114. I have concluded that the trace should have been continued after 23.10. On balance, I accept that over the next couple of hours, the trace would have been suspicious and given cause for concern. I accept Mr Wilby's submission that in circumstances where Turnbull identifies bradycardia at less than 120 bpm and Professor Walker and Steer identify it as 110 bpm, a change from 140/150 bpm (from the middle to the top of normal) down to 110/118 (the very bottom of normal) was a significant fall. It is likely that that fall would have given cause for concern and have caused the defendant's medical team to have treated the trace a suspicious. That was particularly so given that Rebecca should have been treated as an at-risk fetus. It is likely that, if the trace had been continued, this would have resulted in Mrs Walker being taken to the delivery suite some time between 01.00 and 02.20. Continuous monitoring would have been undertaken from the time that Mrs Walker reached the delivery suite. (Mr Tufnell and Mrs Brydon agreed that continuous monitoring was required in the delivery suite.) Had these steps been taken, the further fetal distress which is likely to have occurred before 02.51 would have been observed. It is in my judgment likely that a decision would have been taken before 02.20 to carry out a caesarean section.
115. The claimant's case initially was that the need for delivery should have been established by 03.00. This was later amended, to an allegation that a caesarean section should have been performed by the 02.20 or 02.40. At the experts meeting, Professor Walker expressed the view that, with proper monitoring, a diagnosis would have been made by 02.30 at the latest, with delivery by 03.00. About 40 minutes maximum should have elapsed from discovery of abnormalities to delivery. If the abnormality of the FHR had been appreciated and acted on before 02.20 at the latest, given the urgency of the situation delivery could and should have been achieved before 03.00. The defendant's reactions should have reflected the full knowledge that this was a high risk fetus. The claimant's case is that, in practice, the period from decision to delivery can be reduced to 15 minutes. Indeed, in this case, midwife Pearse had already begun preparation for a delivery by caesarean section before Dr Cheah arrived in the delivery suite.
116. The defendant's case is that in reality there was no time to effect a delivery by 03.00. SROM occurred at 02.20. Midwife Hockley properly undertook a vaginal examination and then had to transfer Mrs Walker to the labour ward. This activity could very reasonably have taken 20 minutes. If a doctor were then to be called, he would have to arrive, perform his own assessment before deciding on management. This could easily have taken another 20 minutes. On top of these periods, it is accepted that average time from decision to delivery is 30 minutes. The defendant submits that any intervention by the midwife and the doctor would have had to be less than half the suggested time for a delivery by 03.00 to have been achieved, and this is improbable.
117. Given my conclusions as to causation and as to the steps which the defendant would probably have taken had monitoring continued, it follows that it is likely that a decision to effect a caesarean section would have been taken by 02.30 at the latest and thus performed before 03.00. Had that happened, it is likely that Rebecca would not have suffered injury.
118. In all the circumstances, the claimant's case succeeds on liability and causation. The parties should now liaise on procedural steps to be taken to progress towards a trial on quantum.