England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/11/2004

Mr. Justice Jack :

Introduction

1. Alice Lillywhite is the second of the three children of Peter and Celia Lillywhite. She was born on 26 April 1992 and is now 12 years old. She suffers from a severe malformation of the brain caused in the early stages of her fetal development by the failure of her fore-brain to divide into two, that is, to cleave into the two cerebral hemispheres. The condition is called holoprosencephaly. She is quadriplegic, and is unable to use her limbs or to talk. She has a gastrotom and requires 24 hour care. Alice can recognise and respond to those who look after her. She is very severely disabled.
2. In this action Mr and Mrs Lillywhite claim damages for the loss, pain and suffering that they themselves have suffered consequent on Alice's birth. This includes damages in respect of Mrs Lillywhite's inability to return to work, and depression suffered by her. The defendant is the University College London Hospitals NHS Trust as the employer of Professor Rodeck who carried out an ultrasound scan on Mrs Lillywhite on 3 December 1991 when she was probably 18 weeks pregnant. He reported that the brain of the fetus was normal. It is alleged that if the scan had been carried out with appropriate skill the abnormality should have been observed and that Mrs Lillywhite would have been offered, and would have accepted, the termination of the pregnancy. I am concerned only with the issue of liability and not at this stage with damages. I have to determine two questions, namely whether Professor Rodeck conducted the scan with appropriate skill and care, and whether Mr and Mrs Lillywhite would have accepted the termination which it is agreed would have been offered if holoprosencephaly had been diagnosed.
3. Holoprosencephaly is a comparatively rare condition which has been stated to have an incidence of 1 between 10,000 and 30,000 births, and to be responsible for 1 in 250 abortions. I can take a description of the condition from paragraph 2 of the report of Dr Peter Twining, consultant radiologist at Queen's Medical Centre Nottingham, who was called as an expert witness on behalf of the claimants:

“2.1 The normal fetal brain consists of two halves. Each half is called a cerebral hemisphere and each hemisphere contains a ventricle (a thin fluid filled space). These ventricles communicate towards the front of the brain and then there is a midline channel through which fluid passes (third ventricle), which then communicates with the posterior part of the brain (cerebellum). There is a further fluid space within the cerebellum (fourth ventricle) which communicates with the outside of the brain and this is where the fluid (cerebral spinal fluid) leaves the brain and then is absorbed over the surface of the brain.

2.2 In holoprosencephaly the process by which the brain separates into two halves does not occur. The result is a spectrum of abnormalities in which many of the midline structures are absent and there is a variable shaped single ventricular cavity. The brain usually separates into two halves during the fourth and fifth weeks of pregnancy. There are three main types of holoprosencephaly.

2.3. The most severe type is alobar holoprosencephaly. In this condition there is a single ventricular cavity and the thalami are fused. There is also absence of the midline structures such as the cavum septum pellucidum, corpus callosum and falx. This diagnosis of holoprosencephaly is quite straightforward as the brain is severely disordered and there is a large central fluid filled space within the brain.

2.4 Semilobar holoprosencephaly is a more difficult diagnosis to make, however once again there is a single ventricular cavity around the thalami, which are partially fused. The anterior parts of the ventricles are fused in a sickle or horseshoe shape and there is absence of the corpus callosum, cavum septum pellucidum and anterior portion of the falx. The posterior parts of the lateral ventricles will appear relatively normal.

2.5 Lobar holoprosencephaly is the least severe form and in this condition the ventricles are almost normally formed however there is fusion of the most anterior parts of the lateral ventricles. The corpus callosum, cavum septum pellucidum and part of the falx are absent.

2.6 It should be noted therefore that in all forms of holoprosencephaly there is absence of the cavum septum pellucidum. In both alobar and semilobar forms there is absence of the anterior horns of the lateral ventricles.”

4. As Dr Twining indicates in his paragraph 2.2 the division into alobar, semilobar and lobar is a division into three of a spectrum of disability. Alice's holoprosencephaly is semilobar, but at the more severe end, closer to alobar.
5. In order to make the history and discussion of the issues intelligible it is next necessary describe three further aspects of the anatomy of the brain, namely three midline structures, which have been mentioned by Dr. Twining. The cavum septum pellucidum, which I will refer to for brevity simply as 'the cavum septum', is an important marker in ultrasound scanning. At the relevant stage of development, that is in the region of 18 to 20 weeks, it consists of two leaflets with a fluid filled space between them. It was also described as a box by one witness. Later the leaflets join to form a fibrous sheet. Its sides are strongly echogenic, echo-producing, and it appears on the screen during an ultrasound examination as two short parallel lines about one third along the mid-line and immediately in front of the single line echo produced by the third ventricle. It is formed as part of the same process as forms the corpus callosum and its presence or absence indicates the presence or absence of the corpus callosum. The corpus callosum provides the communication between the two halves of the forebrain. It and the cavum septum are missing in cases of holoprosencephaly. The falx is a structure which is attached to the skull and extends into the cleft in the forebrain. Where there is no cleft there can be no falx. Alice's falx reaches no further forward than approximately the line of her ears, and so she has and has never had any falx attached to the anterior part of her skull. Likewise she has and has never had a cavum septum or corpus callosum. Nor were there or are there anterior horns on the lateral ventricles.
6. Alice's condition was not correctly diagnosed until some months after her birth. It was initially hoped that she would be less disadvantaged than is the case, and would walk and talk. Mr and Mrs Lillywhite did not then know that it might be suggested that the condition should have been picked up by Professor Rodeck. In January 1993 they moved with their two children from England to Australia. Mrs Lillywhite is Australian and she wanted to have the support of her family. Mr Lillywhite had to give up his successful consultancy business in England and start afresh. In April of 1996 Mr and Mrs Lillywhite had a third and normal child, a son. It was not until August 1999 that Mrs Lillywhite spoke to someone who first suggested that Alice's condition should have been diagnosed pre-natally. This action was begun on 29 July 2002. Limitation was initially raised as a defence but has not been pursued. The action has been tried nearly 15 years after the events which are the subject of examination. This considerably increases the difficulty of that process, which must be borne in mind at all times.

The history in detail

7. On 28 November 1991 Mrs Lillywhite attended at the West London Hospital for a routine abnormality scan. This was carried out by Mrs Janet Wright, the superintendent radiographer in charge of ultrasound services at the West London and Charing Cross Hospitals. Mrs Wright graduated as a radiographer in 1976 and in 1982 obtained a diploma of medical ultrasound. She was an able and experienced sonographer but did not have the training of a doctor. Mrs Wright remembers the scan for two reasons: first because Mrs Lillywhite was anxious that she might have an abnormal child because of her age (she was 36), and second it was the first and only time that Mrs Wright had not found a cavum septum: she remembered it as “the case of the absent septum pellucidum”. Mrs Wright used a Hitachi EUB 340 machine, which she described as not one of the latest but a very good machine. Despite a careful search in the course of which, as was usual, she recorded pictures, she could not find a cavum septum. She thought that the front of the brain was filled with brain tissue. Her pictures are available and three relate to the skull and brain. They would not show the same definition and differences of shading as would have been apparent to Mrs Wright on the screen and they may have deteriorated with age. Each gives a single view as opposed to the multiple views Mrs. Wright would have obtained as she moved the probe.
8. Mrs Wright scanned the skull and brain of the fetus in the axial or transverse plane, that is, so that she obtained a sonographic image of it at the level across the skull at which she was directing her probe, which represented a horizontal slice at that level. She found that she was able to obtain echoes which visualised the structures in the posterior brain. She found the midline echo representing the third ventricle but she could not find a cavum septum nor could she find the anterior horns of the lateral ventricles. She did not refer to the anterior part of the falx either in her evidence or expressly in the note she made on the examination form. That note read: 'unable to visualise septum pelucidum and normal anatomy in the anterior brain. ? absent corpus callosum ? normal'. Mrs Wright described how she found the cerebellum at the back as a marker and then moved up, in tiny movements, of perhaps 5 mm. She did not find echoes to represent the cavum. She took measurements for the biparietal diameter and the head circumference at the level at which she assessed that the cavum septum should have been. She measured the diameter as 39 mm, which I mention to give an idea of the size of the fetal head at this stage of development. She said that she tried moving the probe through a number of angles trying to find the cavum septum. She went on until she was satisfied that she could not find it. She did not try a coronal view, that is, to take vertical slices across the head, parallel to a line drawn ear-to-ear. She did not see that there was a single ventrical across the midline of the fore-brain. It would have shown up as a single fluid-filled cavity, had she been able to see it. She thought that the frontal part contained brain tissue only – as it did. She did not identify a small choroid plexus cyst, which was later found by Doctor Meire and by Professor Rodeck, but her recent training had been that these were of no importance at 18 weeks. Mrs Wright did not have any technical difficulties in obtaining a satisfactory picture. Mrs Lillywhite was not of a weight where her size presented any problem. Although that was raised in advance of the trial, it was accepted at the trial that with a body mass index of just under 25 Mrs Lillywhite's build should not have been the cause of any sonographic difficulty. Mrs Wright said that she extended the time she spent on the examination beyond the normal. Mrs Lillywhite said that the examination seemed to take a long time and was longer than the subsequent examinations by Dr Meire and Professor Rodeck.
9. Following her examination Mrs Wright spoke to Mr Pawson, the obstetric consultant in charge. She believed that the absence of a cavum septum might mean the absence of the corpus callosum, but was uncertain as to the seriousness. It was her intention, with which Mr Pawson agreed, that he should refer Mrs Lillywhite to Professor Rodeck at University College Hospital. Such a referral was standard in such a situation. Mrs Wright had made numerous referrals to Professor Rodeck. She had a high opinion of him. The referral was made by Mr Pawson by telephone while Mrs Lillywhite was still at the West London Hospital and was for 3 December. The University College Hospital referral sheet was completed by Professor Rodeck's personal assistant, from what Mr Pawson told her. She noted 'can't visualise septum pelucidum. ?anterior horns. ? small head ? microcephaly'. The last two originated with Mr Pawson and were not matters which Mrs Wright had raised.
10. Mrs Lillywhite had some discussion with Mrs Wright as to the outcome of the scan and knew that Mrs Wright had not been able to find the brain structures which she wished to find. Mrs Lillywhite made a note of the words 'corpus callosum'. She was very anxious and was concerned that, if she was to have the pregnancy terminated, it should be done as early as possible. She felt she could not wait to see Professor Rodeck on 3 December and so telephoned the Portland Hospital and arranged to see Dr Hylton Meire privately on 29 November. Dr Hylton Meire was consultant radiologist at Kings College Hospital and was also in charge of the ultrasound service at the Portland. He was a specialist in ultrasound scanning, both obstetric and non-obstetric. In 1991 his work was about 70% non-obstetric. He had written widely on ultrasound, and was the editor of a leading text book. He had lectured on ultrasound and Mrs Wright had attended his lectures. He had and has a high reputation.
11. The Portland accepted Mrs Lillywhite without any formal referral but obtained the details of her G.P. Mr. Lillywhite accompanied her to see Dr. Meire. Mrs Lillywhite explained to Dr Meire why she had come, telling him what she could of the outcome of the scan by Mrs Wright. I find that he did not have any written report from the West London Hospital: for Mrs Lillywhite did not have that. It is nonetheless clear that Dr Meire understood that Mrs Wright had failed to find the appropriate structures in the fore-brain. That is what he proceeded in particular to examine though he scanned the whole fetus. Dr Meire has no recollection of carrying out the scan. He would have recorded a large number of pictures, between 20 and 30. These have been destroyed following the policy of the Portland to destroy such pictures after 6 years if they had not been examined in the interval. Dr Meire was unaware of that policy until he requested the pictures to assist with this case. Mrs Lillywhite's evidence was that she told Dr Meire of her appointment with Professor Rodeck on 3 December. Mr Lillywhite's oral evidence supported that. I will revert to this and I conclude that the probability is that Dr Meire did know.
12. Mrs Lillywhite's recollection was that Dr Meire told her that the baby was high in the uterus and he had not got a good view, but overall it looked fine. He told her that he had seen a choroid cyst. Mr Lillywhite's recollection was that Dr Meire was fairly reassuring although he said that he had not got a good view. Mr Lillywhite remembered feeling unhappy that it was costing money but Dr Meire wasn't getting a clear view. He said that he did not feel particularly reassured but his wife was more cheerful following the appointment.
13. Dr Meire wrote a report of his examination as follows:

The fetal size is consistent with a gestation of just over 18 weeks. The fetal head was high in the fundus and imaging was not easy with reverberations partially obscuring the proximal hemisphere. The gross cerebral anatomy is normal and I was able to identify the thalami, septum pelucidum, falx, third ventricle and lateral ventricles which appear normal. There is a small (and probably insignificant) cyst within the left choroid plexus.

If doubt about the cerebral anatomy persists a further scan in about 2 weeks would almost certainly be more informative.

14. It is clear that Dr Meire considered that he had seen echoes representing the cavum septum, the falx and the lateral ventricles. He would have used the echo of what he believed to be the cavum septum to give him the level at which to measure the biparietal diameter. But Alice had no cavum, no lateral ventricles nor did the falx extend into the front of the skull, which is where Dr Meire would have identified it. Dr Meire said that he would have tried to obtain a coronal view as well as the standard axial view. There was some discussion at the trial of the significance of the last sentence in his report, beginning 'If doubt persists …..'. Dr Meire said that this referred to the scan being two weeks earlier than he considered optimal, which was at 20 weeks. (I should say that there has been a shift of opinion as to the optimal time moving from 18 weeks to 20 weeks. Skull thickness does not begin to be a problem until 24 weeks. The downwards factor is the date by which any termination should be carried out.) He also said that it was a routine phrase which was not specific to Mrs Lillywhite. The question arises as to who was to have the doubts if Dr Meire himself was confident – for neither Mrs Lillywhite's GP nor obstetrician was in a position to question his conclusion. If Dr Meire knew that Professor Rodeck was seeing Mrs Lillywhite in four days, it is puzzling that he referred to the possibility of a further scan in two weeks. This has led me to question whether Mrs Lillywhite is right that she told Dr Meire of the further appointment. It seems to me that someone might be reticent in telling one consultant that they were seeing another consultant for the same purpose in a few days. I have also wondered what Mr and Mrs Lillywhite would have done if Dr Meire had told them that he was confident that Mrs Wright was correct: would they have still gone to Professor Rodeck for a third view? On the other hand some explanation was required why Mrs Lillywhite had come to see Dr Meire privately without a proper referral in a situation where it was standard procedure for there to be a referral to a tertiary referral centre. On balance I should accept that Mrs Lillywhite's recollection that Dr Meire knew of her appointment with Professor Rodeck is accurate.
15. Dr Meire stated that his practice in cases where he could not be certain was to offer the patient a further scan without payment. He said that this happened in between 5 and 10% of cases. He said that he did not do that here because he was content in his mind that he had seen the structures he expected to see: if he had been uncertain, he would have offered a further scan. In the situation here, if he had been uncertain, there was also the forthcoming appointment with Professor Rodeck. He did not sound any note of uncertainty to be passed to Professor Rodeck. Nonetheless I conclude that the opening of his report on the scan he carried out and its closing do suggest that the scan was rather less satisfactory than it might have been. Mr. Lillywhite was left with that impression and was less reassured than his wife.
16. Professor Rodeck has been Professor of Obstetrics and Gynaecology at University College London since 1990, and is Head of Department. When at King's College Hospital he had set up what was probably the first unit in the world devoted exclusively to fetal medicine. In 1986 he moved from King's to Queen Charlotte's Hospital where he established a second such unit. He then established the fetal medicine unit at University College Hospital. He has published very widely and has been involved with a number of developments in fetal medicine. He is a man of considerable distinction. In 1971-2 he was a research fellow at University College Hospital in fetal and perinatal pathology, so he is well-grounded in the anatomy of the normal and abnormal brain.
17. Mr Lillywhite was not able to accompany his wife to Professor Rodeck on 3 December. Professor Rodeck has some recollection of the examination despite the passage of time, almost certainly because of his involvement after the birth of Alice. He said that when he heard how Alice was affected it came as a great shock and he went back to his records and had thought long and hard how it might have been possible that he had not diagnosed her condition.
18. The paperwork which Professor Rodeck had, consisted of the referral sheet prepared by his personal assistant, and Dr Meire's report. I can be confident of the latter because it was included in the University College file for Mrs Lillywhite. She had been given a copy of the report at the Portland and must have provided it, or a further copy, to Professor Rodeck. Professor Rodeck had the assistance of Dr Martin Haeusler while he carried out the scan. Dr Haeusler is now consultant obstetrician and gynaecologist at the University of Graz in Austria. In 1991 he was senior clinical research fellow at University College Hospital and worked with Professor Rodeck in the fetal maternal unit from February 1991 to March 1992. Dr Haeusler completed most of the form recording the results of the scan.
19. The record shows that Professor Rodeck measured the biparietal diameter, the head circumference, the distances of the lateral borders of the anterior and posterior horns of the lateral ventricles from the midline as against the distance from the midline to the skull at the same points (10/22 and 9/22 respectively), and the inter-orbital distances (30/14) and the nuchal fold. The record made by Dr Haeusler shows that Professor Rodeck revised his initial measurements for the biparietal diameter and the head circumference, which Professor Rodeck suggested showed the care he was taking. He clearly located what he thought were echoes representing the cavum septum and the anterior and posterior horns of the lateral ventricles. All the measurements were normal. Professor Rodeck said that he would have checked the cavum septum and the anterior horns in the axial and also the coronal planes. It was unusual to take the intra-orbital measurements. If the eyes had been closer than they should have been, which is named hypotelorism, that would have been an indication of semilobar holoprosencephaly. Professor Rodeck said that it occurred in between 2/3s and 3/4s of cases of semilobar holoprosencephaly. The distances were normal. The nuchal fold is increased in a number of abnormal conditions, which might include semilobar holoprosencephaly. In this case was not. Although there is no record, Professor Rodeck would also have found an echo which he took as representing the anterior falx. In addition to measuring the intra-orbital differences Professor Rodeck looked carefully at the echoes representing the face. Facial abnormalities are particularly associated with alobar holoprosencephaly, but may also be present with semilobar holoprosencephaly. Professor Rodeck found no facial abnormalities, and there were none for him to see.
20. Professor Rodeck said that the image quality he obtained was good average: it was not poor or he would have made a written comment. The machine he was using was a Acuson XP128, which was as good as was then available and was better than the machine used by Mrs Wright. The machine would not produce images of the clarity produced today. In his evidence Professor Rodeck referred to the difficulty facing anyone conducting a fetal scan of this nature. If they conclude mistakenly that the brain is abnormal, it is likely that the pregnancy will be terminated with the loss of a healthy child. If they fail to diagnose an abnormality, a severely disabled child may be born to the mother. He said that here, after a long and detailed examination, he could not conclude that the fetus was other than normal. He had seen echoes consistent with the structures I have mentioned; he had found none of the abnormalities which are often associated with holoprosencephaly. He had felt confident in his conclusion. He described ultrasound as an elusive art and stated that there were few conditions that could be diagnosed with absolute certainty. He said that semilobar holoprosencephaly could sometimes be diagnosed. He said later that with ultra sound there was always a small question mark: it might be very small: he would not leave a patient with concerns if there was no real ground for them.
21. Professor Rodeck did not record pictures during the scan. That accorded with the practice at that time at University College Hospital when the diagnosis had been one of normality. This practice was changed by Professor Rodeck following Alice's birth. There are thus no pictures recording any part of the images that were seen by Professor Rodeck and by Dr Meire during their scans.
22. During the scan Professor Rodeck confirmed the presence of the choroid plexus cyst found by Dr Meire. He suggested a further scan in 5 weeks to check it. Because Mrs Lillywhite was visiting Australia it was arranged that the further scan should take place on 18 February 1992. It was carried out by Dr Haeusler. Dr Haeusler came from Austria to give evidence. He had no recollection of either scan with which he had been concerned. The record of his scan shows that he carried out a full scan involving the whole body of the fetus. He measured the biparietal diameter and the head circumference. He took measurements for the posterior horns of the lateral ventricles, but although he noted an 'A' for anterior he did not record a measurement for the anterior horns – he left a blank. He did not measure the intra-orbital distances. He did examine the facial profile. He found that the cyst was gone. His letter to Mr Marwood, Mrs Lillywhite's obstetrician at the West London Hospital, stated that 'Ultrasound examination revealed no obvious fetal malformation.' 'Obvious' must have been used in the sense of 'observable'.
23. In a statement signed on 8 September 2003 Dr Haeusler said that he had scrutinised both the brain and fetal anatomy, that the measurements were reassuring, that he had specifically visualised the posterior horns of the lateral ventricles as this would have been where the cyst was if it still existed. He said it was not his practice to measure the anterior horns unless he suspected a cerebral abnormality, which he did not. On that basis I would not have expected him to have written an A with a space for the measurement. He suspected that he had not specifically sought the fetal facial profile but had obtained a good view and documented it for completeness. In a further statement signed on 28 September 2004 Dr Haeusler said that to measure the biparietal diameter and head circumference, he first identified the cavum septum to get the right level. He said that, if he had not identified it, he would have noted it and referred Mrs Lillywhite to Professor Rodeck. He also said that he was sure that he had seen the anterior horn of the lateral ventricle because, had he not done so, he would have noted it.
24. Dr Haeusler said in his evidence that he had conducted a meticulous scan because he was aware of the referral. He would have been reminded of the referral by the record of Professor Rodeck's scan which was in the adjacent column on the sheet to his own and by the original referral sheet made out by Professor Lillywhite's personal assistant (which he had because he noted his letter to Dr Marwood at the bottom as having been sent with Mrs Lillywhite). Mrs Lillywhite herself recollected that Dr Haeusler took a long time with the scan. He struck me as a somewhat formal but very meticulous man. He said that at 29 weeks the picture would not be as clear as at 18 or 20 weeks – because of the increased skull thickness, but he obtained echoes that he was happy with. He accepted that his knowledge of the outcome of Professor Rodeck's scan could have had a reassuring effect.
25. It was sought on behalf of the claimants to contrast Dr Haeusler's two statements suggesting that it was not credible that he had seen what he referred to in the second but omitted from the first. Given the medical technicalities which the case involves and the difficulties of dealing with a statement by telephone I do not think that the contents of the two statements are surprising. The second elaborates the first, explaining what was involved in the exercise which Dr Haeusler carried out. The only point on which I feel a degree of uncertainty is in relation to the anterior horn of the lateral ventricle.
26. Alice was born on 26 April 1992. The birth itself was without difficulty. But it was later noticed that her head might be small and her forehead unusually sloping. Alice was X-rayed on 27 April. Because Mr and Mrs Lillywhite were unhappy at the treatment she was receiving, they arranged for Alice to be seen by Dr Meire at the Portland on 30 April. He examined her by ultrasound through the fontanelle. He reported as follows:

The corpus callosum is absent and there is partial fusion of the bodies of the lateral ventricles. The anterior horns could not be confidently identified but I suspect are present but contain no csf [cerebrospinal fluid]. The posterior horns are present and normal and contain normal choroid plexus.

The thalami and caudate nuclei are present and appear normal and the third ventricle appears filled with a large massa intermedia.

The cerebellum and fourth ventricle are normal.

There was no discussion at the trial of the ease or difficulty of making findings by this method at such a stage.

27. It is plain that Mrs Lillywhite must have reminded Dr Meire that he had examined Alice as a fetus. He has, however, no recollection of this second examination. He said that he was amazed that he did not remember.
28. It appears from a manuscript note made by Professor Rodeck's personal assistant and addressed to him that Dr Meire telephoned to report the result of the scan. I deduce that from the medical language used in the note and the statement 'Hilton Meire will be at home tomorrow Friday [telephone number] if you need to speak to him'. The note states that Dr Meire had confirmed agenesis of the corpus callosum. This must have come from Dr Meire himself because that diagnosis was not in his written note. The notes held by the University College Hospital were attached for Professor Rodeck. Professor Rodeck stated in his evidence that he did telephone Dr Meire at some point. He had no recollection of their conversation. He thought that they also had a meeting, but again he could not recollect it.
29. Agenesis of the corpus callosum describes a different condition to holoprosencephaly. In this condition the division of the brain into two halves does occur. However the lateral ventricles are widely separated and are attenuated at the front giving them a drawn-out tear drop shape. There is no cavum septum or corpus callosum. The falx is present. The finding by Dr Meire that the lateral ventricles were partially fused appears inconsistent with this diagnosis, but the point was not raised during the trial.
30. It was submitted that if the two men had thought that they had been misled by structures which had genuinely mimicked the echoes of the structures which Alice did not have they would have had much to discuss and that the case might have been written up. It was suggested that they would both have wanted to study Dr Meire's pictures. The point was made on the basis that the two men had each located a cavum septum that was absent, anterior horns that were absent from what should have been the lateral ventricles, and a falx that was absent. At this time, that is April 1992, the diagnosis was not of holoprosencephaly but of agenesis of the corpus callosum. So it was then thought that the anterior horns were present and that the falx was present. I refer to paragraph 3.2 of Dr Twining's report. On that basis the point may carry less weight. It is clear that both Professor Rodeck and Dr Meire were concerned that they had not diagnosed Alice's condition. Such a concern does not point to an appreciation that they had been negligent: it is equally consistent with a responsible approach to their work. Professor Rodeck later used Alice's case in his teaching as a warning of false positives appearing in ultrasound.
31. When Professor Rodeck was informed of the problem with Alice he telephoned Mrs Lillywhite at her home. He made contact with her on 5 May and they had a conversation about which he remembers a little. He expressed his sympathy and said that Alice's condition could not always be detected in utero. Mrs Lillywhite was unhappy with the treatment that she had been receiving and Professor Rodeck wrote a letter of referral to Dr John Wilson at Great Ormond Street Hospital. In that letter he said 'I have spoken to her and had an initial discussion about the difficulty of antenatal diagnosis and also the variability in prognosis. I would be grateful if you would be able to fit her in as soon as possible and to have a word with you beforehand.' On 11 May 1992 Mr and Mrs Lillywhite went to see Professor Rodeck for a discussion of Alice's case. One of the questions which they had prepared to ask him was for his comments on the fact that Mrs Wright had raised the absence of a corpus callosum. In her statement she says that she asked if Alice's condition was detectable antenatally and that Professor Rodeck replied that radiology was an imprecise science: that he was disappointed at the failure to detect the abnormality. Professor Rodeck's concern for Mrs Lillywhite after Alice's birth caused her to write and thank him in December 1992 before she moved to Australia.
32. On 7 August 1992 Alice was examined by means of an MR scan at Great Ormond Street and the diagnosis of semilobar holoprosencephaly was made. No additional abnormalities were found.

The development of the case

33. The claimants' case in its simplest form is and has always been that Professor Rodeck failed to identify the absence of a corpus callosum, of the anterior horns of the lateral ventricles, and of the anterior falx: that just as Mrs Wright detected these abnormalities, so should he. The pleaded defence was that three scans by leading experts (Dr Meire, Professor Rodeck and Dr Haeusler) had failed to detect the abnormalities and that there was no negligence. It was asserted that the echo Professor Rodeck had taken as the anterior horn must have been produced by an adjacent structure. It was pleaded that Professor Rodeck must have seen an echo which he took as the cavum septum. There was a meeting of the experts on 26 August 2004. The experts considered a list of questions. The position of the claimants' experts was that Professor Rodeck should have observed the absence of the three structures and diagnosed holoprosencephaly. The defendant's experts stated that the sensitivity of the diagnosis was not 100% and so failure to diagnose the condition did not equate with negligence, particularly where none of the other abnormalities which often accompany holoprosencephaly were present. They took the position that Professor Rodeck must have seen echoes which equated to echoes of the structures he believed he had identified, but they did not consider what structures could have produced them. They did not do so because they felt that, as they did not know what Professor Rodeck saw, there being no pictures, they should not speculate. By a letter dated 10 September 2004 the claimants' solicitors suggested that the defence should be abandoned. The suggestion was refuted by the defendant's solicitors in their letter of 16 September. They referred in particular to the following matters: the terms of the referral to Professor Rodeck, Professor Rodeck's skill, the equipment used by him, Mrs Lillywhite's weight, technical difficulties and the severity of the abnormality. The letter had not been seen by the defendant's experts in draft. The terms of the referral, Mrs Lillywhite's weight and technical difficulties played no part at the trial.
34. At the trial it was soon apparent to me and, I think, to all involved that on 3 December 1992 Professor Rodeck had conducted an apparently painstaking scan and must have seen echoes which he took to represent the cavum septum and the anterior horns of the lateral ventricles. That followed from the measurements he took. It was not suggested that such echoes could have been 'artefact', that is, a product of the ultrasound alone not representing any actual structure in the brain. In the absence of any pictures of what the Professor saw, it was a matter of considering what structures could have produced echoes mimicking the structures Professor Rodeck was seeking, and whether he should have realised that the echoes were mimics. This question had not been considered by any of the witnesses in the written material served prior to the trial.
35. The first suggestion came from Dr Meire. He suggested in his oral evidence that the echo he took for an anterior horn could have come from the insula – which forms at the side of the brain. This was adopted by Professor Rodeck in his oral evidence, but was later abandoned. Professor Rodeck suggested in his evidence that at 18 weeks the foremost part of Alice's single ventricle might have formed an attenuated arch, whose walls could have produced an echo mimicking that of a cavum septum. That suggestion was not pursued. His second suggestion as the cavum septum was that at the forefront of the ventricle there was in December 1991 a protruding knob, or short piece of a single horn, whose walls could have produced an echo mimicking the cavum septum. This was not pursued in quite that form but was very close to the case which emerged after he and Professor Griffiths had given their evidence and during the evidence of the other four expert witnesses. This was that the cavum septum might be mimicked by echoes from a kind of beak which is observable on the MR scan done on 6 August 1992. The suggestion as to the horn of the lateral ventricle, which was pursued, was first raised in evidence by Professor Rodeck. It was that the lateral horn might be mimicked by an echo which, for want of any other convenient name, I will call the 13-90 echo, referring to figure 13-90 on page 125 of 'The Unborn Patient' by Harrison, Golbus and Filly, published in 1991. There was no clear candidate to mimic the falx, though a line on picture (vi) taken by Mrs Wright was referred to and relied on. Dr Meire had suggested that there might have been an infolding at the front of the brain. That was not pursued.
36. The defendant's case as to the echoes as it then stood was set out in a document served very late on 6 October 2004 at which stage Professor Rodeck had not concluded his evidence in chief.
37. If the approach of mimicking echoes is taken, the question becomes whether it was consistent with the exercise of proper skill and care by Professor Rodeck that he accepted these mimicking echoes as representing the structures which he did. On that the experts were divided. I will come to their evidence and the positions they took in the next section.
38. The position thus was that there was very little in the written evidence prior to the trial to explain what Professor Rodeck in particular might have seen to lead him to conclude that the structures found missing by Mrs Wright were there. I say very little rather than nothing because there was some material introduced by Dr Russell shortly before the trial, but the conclusions to be drawn were not then developed. During the trial a number of possibilities were introduced, many of which were not pursued.

The expert evidence

39. I will set out what the five expert witnesses had to say in what became the important parts of their evidence in some detail because this is a case in which it is far from easy to reach a conclusion. That is in part because of the passage of time and the absence of any pictures showing the scans carried out by Dr Meire, Professor Rodeck and Dr Haeusler. I found each of the expert witnesses to be assisting me to the best of their ability. I should add that I found the same with the evidence of the four factual medical witnesses, and also with Mr and Mrs Lillywhite. I know that those who read this part of the judgment with an eye trained in the appropriate medical science will find infelicities of expression and probably minor inaccuracies, and I apologise: my education has been brief, and I have to achieve a good deal of compression.
40. Professor Paul Griffiths was called on behalf of the claimants. He is Professor in the Academic Unit of Radiology at the University of Sheffield, and was previously consultant neuroradiologist at Addenbrooke's in Cambridge. He did his Ph.D. in neuroanatomy, and is the author of the relevant section on the brain in Gray's Anatomy. He has specialised in the use of MR scanning, initially paediatric and more recently in addition fetal. He is not an expert in ultrasound though he is well familiar with it and between 1988 and 1992 carried out some 20 to 30 pregnancy scans by ultrasound. The first part of his evidence dealt with the interpretation of the MR scan of Alice and her brain structure. In his report he described the fusion of the frontal portions of the cerebral hemispheres and the absence of an anterior falx. He stated that the cleaving process occurs from about weeks 6 to 9 after fertilisation. It followed, he wrote, that by weeks 18 – 20 the abnormality should have been apparent in the absence of technical difficulties with the ultrasound. The cavum septum could not have been present. In his oral evidence he said that Alice's falx was properly formed at the rear but grew less as it came forward, running out at about the line of the ears. He described the shape of Alice's fused ventricle. In the axial plane, that is as seen from above, it was in a horseshoe shape instead of being something more like an 'H' with two separate structures joining on the cross-stroke. At the front there was a peak which dipped down. (This was later called 'the beak'.) He said that it was too far back and too high for any echoes from it to be taken for the cavum septum. Thus it last appeared on image 9 of 16 (starting top left) on the coronal images on the MR scan, whereas the cavum septum would have appeared on images 11 and 12. He described Alice as being at the severe end of semilobar. He did not think that her condition would have been subtle at 18 weeks, but that the relevant structures would have looked very similar to those on the MR scan because they had been formed by that time and could not protrude forward because the frontal lobes had never separated. He said that at 18 weeks the surface of Alice's brain would have been comparatively smooth, and that in any event, her sulci, the wrinkles in the cerebral matter, were later only poorly formed. So there could have been no fold or fissure at the front to give an echo imitating a falx.
41. In cross-examination Professor Griffiths said that the shape of the ventricles would not change much as the brain grew once they were formed. He accepted that the beak on Alice's ventricle was about one third along the mid-line and not far off where the cavum septum would be. But, he said, there was thalamus in front of it, whereas the cavum was in front of the thalamus. He said that a beak had existed in all the cases of semi-lobar holoprosencephaly that he had seen. He was asked about a study with which he had been involved, and I will revert to that.
42. Dr Peter Twining is, as I have said, consultant radiologist at Queens Medical Centre, Nottingham. His main interest is obstetric ultrasound, in particular the detection of fetal abnormalities. Among other writings he is chief editor of, and a major contributor to, a new Textbook of Fetal Abnormalities. His report concluded that Professor Rodeck had seen a cavum septum which was not present and likewise frontal horns of the lateral ventricles. It stated that this fell below even most basic standards and was a clear breach of duty. In his evidence he emphasised that a sonographer must check the relationship between the structures that he thinks that he identifies, and that the echoes need to be in exactly the right location, of the right size, length and density. He did not think that the beak could produce an echo simulating a cavum septum. In cross-examination he said that he considered that Dr Meire had been in breach of duty also. He thought that Dr Haeusler had a more difficult task at 11 weeks further on. He was very adamant that there could have been no echoes which could properly have been interpreted as mimicking the missing structures. He said that Professor Rodeck should have seen the horseshoe ventrical on taking a coronal view. He said that the short mid-line echo on Mrs Wright's picture (vi) could not be a falx nor a cavum septum and so in itself was worrying. As to the 13-90 echo he said that it was a well-recognized pitfall: nobody knew what caused it but nobody should have been confused by it in 1991. He said that in any event at 18 weeks these echoes were not seen. He accepted that such an echo could be seen on a video of a scan done by Mr David Howe (called on behalf of the defendant) but it was faint and would not have been visible earlier. (During the cross-examination of Mr Walkinshaw it was accepted on behalf of the defendant that this echo as shown on the video should not have been taken for the horn of a ventricle because it was much too high.) He stated that the beak was where he would expect the posterior end of the cavum septum. It would be oval on an axial scan, not casting parallel lines, it was too posterior and too high. It could not have moved in its relationship to the thalamus. The cavum septum should extend just beyond the anterior portion of the thalamus.
43. Mr Stephen Walkinshaw is Consultant in Maternal & Fetal medicine at the Liverpool Women. He is the lead provider of tertiary fetal medicine and ultrasound services in Mersey and North Wales. In his report he considered how the diagnosis of holoprosencephaly by ultrasound had progressed since ultrasound began to be used for fetal examination in, if I understood correctly, about 1980. Mr Walkinshaw wrote 'Abnormalities that might be regarded as routinely detectable in 2004 would have been rarely diagnosed even 10 years ago.' Later in the report he stated 'Semilobar holoprosencephaly has been detected with reports from 1984 onwards, though most reports have described severe cases with facial or other abnormalities.' He then referred to the few reported cases up to 1990, in each of which there were also other abnormalities, up to 1990. He referred to the textbook, Prenatal Diagnosis in Obstetric Practice 1995, which states with regard to holoprosencephaly that ultrasound diagnosis is possible but with limitations. He concluded that at that time most cases of semilobar holoprosencephaly went undetected in the antenatal period, and it would not be a diagnosis to be expected to be made. I find that quite striking. For what I have learnt is that identification of the cavum septum is a key part of an ultrasound examination of a fetus, and that it shows up as two short bright parallel lines. It would be easy for me to think that its absence should have been readily detectable even in 1991: compare Detection of Fetal Central Nervous System Anomalies, Filly et al., 1989, Radiology 1989; vol. 172 at page 407 – 'this easily demonstrated structure'.
44. The report then moved on to the task of a consultant on a tertiary referral, where a partial diagnosis or suspicion has already occurred. That allowed the consultant to concentrate on the particular problem, and to use all views – axial, coronal and angled. He wrote that they 'would be expected to take considerable pains to be very sure that there is no abnormality.' He said of Professor Rodeck that he was 'one of the most experienced obstetric sonologists in this country and would have been regarded as one of the most skilled in he international community.' Nonetheless he concluded that, because structures were found that were absent, the scan fell below the standard to be expected on a tertiary referral. In reaching that conclusion he emphasised the number of views which should have been taken and which must have shown the absence of the relevant structures.
45. In his oral evidence he suggested that one had to look to see how the diagnosis was missed and see whether any explanation was reasonable. He said that until Dr Sarah Russell (who was called on behalf of the defendant) had produced 'Case E' he had not been able to come up with any structure to explain what had happened. He had hoped that an acceptable explanation would come up, but none had come from Dr Meire or Professor Rodeck. Case E had been considered at the experts meeting to see if it provided an explanation. He and Dr Twining felt that it was not sustainable. Case E was not relied on at the trial. There had been no discussion of a beak. He understood that the beak was at the level of the thalamus and thought it unlikely to produce parallel echoes. He said that by the time he was training, the early 1980s, the 13-90 echoes were recognised as a pitfall. For them to be present deep sulci in the brain were needed, which Alice never had. He next referred to a video of a scan which Mr Howe had shown in court to demonstrate what a scan looked like in real time, which had shown these echoes. He said that it demonstrated that the echoes were far too high to be interpreted as the wall of an anterior horn. It was accepted on behalf of the defendant that in respect of that echo as shown that this was so. Mr Walkinshaw said that the beak was further back than the position of a cavum septum: if it did produce an echo it would be over the thalamus. He said that he had never seen the production of an echo from a beak described in the literature. None of the witnesses suggested that it had, and Professor Griffiths' growing thought, that a beak is a feature in many, or perhaps most, cases of semilobar holoprosencephaly shows that this is an area of developing knowledge. Mr Walkinshaw thought that a beak could give an echo but the lines would not be parallel. He was referred to Dr Russell's case D, a case of lobar holoprosencephaly, where there was a large beak at the bottom of the monoventrical, larger than Alice's, which had produced two lines which Dr Russell had taken to represent the cavum septum. He considered that in Alice's case any lines from the beak would have been too small and too far back to have been taken for a cavum septum, and that a scanner at the tertiary level should not have been deceived. He concluded his evidence in chief by hypothesising how the failure might have occurred, namely that the beak mimicked the cavum septum, that the 13-90 echoes mimicked the lateral ventricle and an echo for the falx was found hear the top of the head. On that basis he considered the skill to be exercised at a tertiary level had not been exercised, because the scanner had not followed the basic rules of keeping the planes under examination in mind, and keeping the relationships between structures in mind.
46. In cross-examination he said that he had been thinking about the case for several years and had played with his own scanning trying to produce echoes in different parts of the brain. As to the 13-90 echoes he said that they were not produced as early as 18 weeks and in any event Alice had no deep sulci for blood vessels which might give rise to them. But he accepted that no one knew how the echoes were produced. It occurs to me that if they were not produced at 18 weeks they should not in early days have been a problem for scanners as scans would routinely were done at about that time. He said that in the coronal view these echoes extended up to the cranial vault and so could not be confused with an echo from an anterior horn of a lateral ventricle. He could not suggest an explanation for the short line on Mrs Wright's picture (vi), which is seen in front of the echo representing the third ventricle: it was not seen in Mrs Wright's other pictures and might be an artefact. He was asked about the beak and its possible echo. He said that in particular in the coronal view it should have been differentiated from the echo representing a cavum septum: the scanner should see the thalamus and realise that the position was wrong for a cavum septum. In the axial plane the echo would be too high and the landmark of the third ventricle lost before it came into view. He pointed out that the 13-90 echo extended up to the roof of the skull in the coronal view, as shown by 13-88. He was asked about Dr Russell's patient D, where she had been deceived into thinking that there was a cavum septum. He said that the lines overlapped the third ventricle and were too far back : she should not have been deceived. Likewise he did not consider that the two lines shown on the scan of Dr Russell's patient A should have been taken for the cavum septum.
47. Mr David Howe was called on behalf of the defendant. He is consultant in feto-maternal medicine at Princess Anne Hospital, Southampton, where he established the Wessex Fetal Medicine Unit. The majority of his work involves antenatal diagnosis ultrasound as a primary technique. His work with ultrasound began in 1989. In his report he pointed to the improvement in ultrasound since 1991, and to the comparatively low detection rate for holoprosencephaly – five studies between 1991 and 1998 showed a detection rate of 4 in 7. A further study showed 52% between 1985 and 1991 and 86% between 1992 and 1998. He pointed to the lower incidence of semilobar compared with alobar holoprosencephaly and the greater ease of detection of the latter. He considered the standard of care to be exercised on a tertiary referral and concluded from the record of Professor Rodeck's scan that he had carried out the scan with diligence. He suggested that two flecks shown on Mrs Wright's picture (vii) could have been taken for the cavum septum. This suggestion was not pressed at the conclusion of the trial. In dealing with the allegation of negligence he took the line that, for example, Professor Rodeck considered that he had seen a cavum septum and it was thus reasonable to exclude abnormalities inconsistent with its presence. As there was no cavum septum, this approach did not face the difficulty. As I have indicated and as Mr Howe said in his evidence, he felt when writing his report that, as he did not know what Professor Rodeck had in fact seen, he should not speculate as to how he might have been deceived.
48. In his oral evidence he pointed out that in 1991 even at tertiary centres it was unusual to measure the anterior horns of the lateral ventricles, and that it was likewise unusual to measure the intra-orbital distances (both of which were done by Professor Rodeck). He said that in 70 out of 75 cases of holoprosencephaly the intra-orbital distances would be reduced below the normal: here they were not. Likewise, if Professor Rodeck had been concentrating only on a possible agenesis of the corpus callosum, he would not have made the intra-orbital measurements. In the holoprosencephaly cases he had seen, he had always observed some dilation of the posterior ventricles, usually very marked. Professor Rodeck had examined these to observe the choroid cyst and had seen no dilation (nor was any marked abnormality in fact present). Likewise fusion of the thalami was a classical feature of holoprosencephaly. Here there was a degree of fusion only which had not been apparent to Dr Meire when he carried out his post-natal scan. He was asked whether it was possible for a responsible consultant in fetal medicine to exercise all due care and still miss holoprosencephaly at 19 weeks. He answered that he believed it was: the sensitivity of ultrasound even in expert hands is, save for a very few abnormalities, not 100%, which means that some cases will be missed. It was most likely to be missed when there were not the other features typical of the abnormality in question. He relied on Professor Griffiths' study to show that even tertiary scanners could believe they had seen he cavum septum when it was in fact absent. He said that it was likewise possible to think one had seen the frontal horns and the falx. He said that often the view was not as ideal as the scanner would chose, but he had to decide whether it reached his threshold of confidence that he had seen what he was trying to identify.
49. Asked to speculate as to what Professor Rodeck might have seen, Mr. Howe said that he had gone through the process while listening to the evidence of Mr Walkinshaw. He thought that the beak could produce a double echo approximately the right distance apart for the cavum septum, which would be in a position immediately behind that of a normal cavum septum: the probe would have to be angled up. Because the probe was angled up the distance to the skull would be foreshortened and so the echo would appear further forward than it was. The difference between him and Mr Walkinshaw was, he said, that Mr Walkinshaw thought that a much greater angulation of the probe would be necessary and so the echoes of the posterior structures and of the beak could not be obtained together. He thought that a smaller angle would suffice and so all could be obtained in the one plane. He agreed that it would be necessary to be sure to see the thalami.
50. In cross-examination Mr. Howe said that he did not know why Mrs Wright achieved a correct conclusion and Professor Rodeck and Dr Meire were wrong. One possibility is that the baby was in a different position and she did not get the echoes that they did. He said that the classical identification of semilobar holoprosencephaly was a very large ventricle with abnormal thalami which were totally or partially fused: here four experienced sonologists did not identify any abnormal dilation of the posterior horns, any fusion of the thalami, or the monoventricle. It was an unusually difficult diagnosis to make, and it would have been written up if made in 1991 because the diagnosis had not been made previously (the last the part was contested on behalf of the claimants). He accepted what Professor Griffiths had said about the development and structures being complete at 12 weeks, and that their positions and structure would not change thereafter, though the proportions changed. He accepted that the beak was behind where the cavum septum should be found. It was his view that prior to 1991 all described cases of semilobar holoprosencephaly had had additional inter-cranial abnormalities – usually including the posterior horns, abnormally shaped thalami and anterior fusion of the monoventrical. It was put to him that the echoes of the cavum septum and the falx were not subtle: he answered that they could be obscured, which happened quite regularly. He was taken through the movements of the probe which would have been necessary to obtain the mimicking echoes that he was assuming. He did not agree that it should have become apparent that they were mimics. He said that the only way that the scanner knows the angulation within the skull is by reference points on the screen, that is in the axial plane, the posterior horns, the thalami, the cavum septum. Fine movements were involved. The shape of the skull did not help. He said that it was possible for the Professor to have exercised the care to be expected of him: the findings later made in respect of Alice were unlike any other recorded findings for holoprosencephaly. He was confident that the 13-90 echoes were there at 19/20 weeks: he saw them regularly but did not study them.
51. Dr Sarah Russell is consultant radiologist at St Mary's Hospital, Manchester, to which post she was appointed in 1990. In that post she accepts tertiary referrals. Prior to that she was visiting Assistant Professor in Diagnostic Ultrasound at the University of California, where she had worked with Dr Roy Filly and the other authors of the paper in which figure 13-90 is contained. Dr Russell is the author of papers and contributed the chapter on cranial abnormalities in the Textbook of Fetal Abnormalities published in 2000.
52. Dr. Russell was the second expert witness to be called for the defendant. In her report she referred to the Bullen study published in 2001 showing detection rates by ultrasound for alobar, semilobar and lobar holoprosencephaly as 82%, 58% and 33% respectively. Those figures, she said in her cross-examination, would have included some tertiary referrals. She concluded from the reports of Professor Rodeck and Dr Meire that they had carried out their examinations with care, her view being that features potentially diagnosable by scan cannot always be detected.
53. In her oral evidence Dr Russell stated that between 1991 and 1995 her department had identified 15 cases of holoprosencephaly, of which 6 were semilobar holoprosencephaly. She had probably handled two thirds of the scans herself. She referred to Case D where she had failed to pick up a case of lobar holoprosencephaly when scanning at about 20 weeks, thinking that she had identified the cavum septum. The case was referred back to her at 32 weeks because the referring hospital suspected microcephaly. On her second scan she identified the monoventrical. The scan had shown two parallel lines which she had interpreted as a cavum septum, when none was there. She considered that a beak on a monoventrical could cause echoes mimicking a cavum septum. She described the hand eye movements necessary when scanning and the part played by the supposed identification of landmarks such as the cavum septum . She thought it difficult to extrapolate back from Alice's MR scan to say where precisely the beak on her monoventrical would have been situated at 18 months. She thought that it might have been a few millimetres, one or two millimetres, out of position for the cavum septum. In discussing the problem of the falx Dr Russell referred to the small extension of the midline echo on Mrs Wright's picture (vi). She had calculated that on Alice's MR scan the midline stretched 65% of the distances from right to left, which, she said, showed the hazard of extrapolating back and assuming that the growth of each part was linear. She said that the 13-90 echoes were always present and that she had seen them very frequently. Dr Russell referred to Case A, where echoes mimicking a cavum septum were seen. Her view of the Harrison paper (which included figure 13-90) was that it reflected the state of knowledge in 1991, and that the 13-90 echoes were no longer taken as representing the lateral ventricles as had been the case in 1980. I did not understand Dr Russell to be saying that the Harrison paper was breaking new ground here. Certainly it was the view of Dr Twining and Mr Walkinshaw that it was not. I consider that, if it had been, the last paragraph of the right hand column on page 124 would have been worded differently and at greater length. At the end of Dr Russell's cross-examination she stated that it was not fair to accept that in 1991 the pitfall should have been generally known. I should here accept the evidence to the contrary of Mr. Walkinshaw. I think that he is in a better position to judge the knowledge of English consultants in 1991. Professor Rodeck could have said, but did not, that he had not appreciated what the 13-90 echoes were at the time of the scan.
54. Dr Russell agreed with Mr Howe that in Alice's case the beak could mimic the cavum septum and the 13-90 echoes the anterior horns of the lateral ventricles. She thought that the falx was more difficult to explain, but in case A there had been a midline echo which mimicked the falx, and in Mrs Wright's picture (vi) there was the additional mid line I have mentioned.
55. Much of the ground that Dr Russell travelled in her cross-examination was by then familiar. She emphasised that even though an abnormality might be severe, it could nonetheless be difficult to diagnose by ultrasound. It was suggested to her that, consistent with the exercise of due care, she should not have been deceived by the mimicked cavum septum in case D. Dr Russell considered that she had carried out her first scan in that case with appropriate skill. She was asked about case A, where it was suggested that the abnormalities were very different to Alice's. She said that the type of holoprosencephaly in case A was not known, but both the original and tertiary scanners had thought they had found appropriate mid-line structures including the cavum septum. As to the 13-90 echoes Dr Russell said that normally they were distinguished from the lateral ventricles by identifying the latter. In Alice's case the latter were not there to be distinguished. Dr Russell said it was impossible to say whether Professor Rodeck might have picked up Alice's monoventricle with the equipment he had.
56. Substantial time was taken up at the trial with evidence as to how the 13-90 echoes were caused. I have not referred to this evidence because it was inconclusive and in this case it is the existence and position of the echoes which matter rather than their cause. That is not to say that, if their cause was established the knowledge might be of at least assistance, but it was not.
57. I must deal with study reported in the paper 'Comparison of ultrasound and magnetic resonance imaging in 100 singleton pregnancies with suspected brain abnormalities', BJOG Vol. 111, page 792, published in August 2004. Professor Griffiths was one of the authors. The study involved 100 women referred to Professor Griffith's unit in Sheffield by five fetal anomaly units in the North of England, that is to say, they were all cases where a diagnosis had been made at a tertiary level by ultrasound. The summary or head note reads:

Results In 52 of cases, ultrasound and magnetic resonance gave identical results and in a further 12, magnetic ultra resonance provided information which was judged not to have had direct effects on management. In 35 of cases, magnetic resonance either changed the diagnosis (29) or gave extra information that could have altered management(6). In 11 of the 30 cases where magnetic resonance changed the diagnosis, the brain was described as normal on magnetic resonance.'

58. There were seven cases in the study where the absence of cavum septum had not been found by ultrasound on the tertiary referral. Two were cases of holoprosencephaly and seven were cases of agenesis of the corpus colossum. In three or four cases the cavum septum had been found absent when present. These figures were used to suggest that even with the advances of modern equipment, diagnosis remains difficult. How far that follows is dependant on the scope of the study. For the cases were all ones where there had been diagnostic difficulties with ultrasound. The paper stated: 'We acknowledge that this is a selected group where there have been difficulties establishing a definitive diagnosis at ultrasound for patient or technical factors.', and 'Despite the bias and the above assumptions, we suggest that in cases where there are diagnostic difficulties at ultrasound due to patient size, gestational age, fetal lie and technical limitations in utero magnetic resonance should be considered.' Professor Griffiths explained in the majority of cases the sonologists were uncertain of parts of the brain. He gave the example of a woman weighing 135 kg, whose size would make diagnosis by ultrasound difficult, fat being a poor conductor of sound waves. This was not, therefore, a study that showed a number of tertiary sonologists making what they regarded as satisfactory scans and diagnoses, but getting the latter wrong. The scans in the study are to be contrasted with that conducted by Professor Rodeck in that he encountered no difficulties of the types that caused the scans in the study to be referred for MR. While accepting the basis of selection of those included in the study Mr Howe nonetheless relied on it to show that tertiary sonologists could think that they had seen a cavum septum when none was there.
59. Lastly, I must say something briefly about ultrasound itself, which comes not from any one witness but from the evidence as a whole, and I do not think that it is controversial. It must be remembered that ultrasound does not produce the clear pictures produced by magnetic resonance. It produces images which can only be described as messy, are often incomplete and which may require considerable skill to interpret. The clarity of images produced in 1991 were substantially less than of those today. At 18 or 20 weeks the fetal head is very small. Mr Walkinshaw stated in paragraph 6.6 of his report (already quoted in part above) 'Ultrasound diagnosis and expertise is not a static entity. Early machines had limited abilities. Knowledge has changed, and in all circumstances experience is important. Abnormalities which might be regarded as routinely detectable in 2004 would have been rarely diagnosed even 10 years ago.'

The law and its application

60. I do not think that the law provides any difficulty. It was considered by he Court of Appeal in a case which has some analogies with the present in that it was concerned with examination and interpretation of cervical smears, though there the smears were still available for examination. The case is Penney, Palmer and Cannon v East Kent Health Authority [2000] PNLR 323. In the course of his judgment Lord Woolf M.R. quoted the following passages from earlier authorities as setting out the relevant law:

(a) Hunter v Hanley [1955] SLT 213 per Lord President Clyde:

In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.

(b) Maynard v West Midlands Regional Health Authority [1984 1 WLR 634 at 648 per Lord Scarman:

… that a doctor who professes to exercise a special skill must exercise the ordinary skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to another: but that is no basis for conclusion of negligence”

(c) Bolitho v City and Hackney Health Authority [1998 AC 232 at 1158H per Lord Browne-Wilkinson:

“In my view the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendants' treatment or diagnosis accorded with sound medical practice … the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular in cases involving, as the often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable will need to be satisfied that in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

61. There was no dispute here as to the standard of care to be exercised by Professor Rodeck. It was the ordinary skill of his specialty, that is, as a consultant sonologist at a tertiary referral centre. It was accepted that considerable care was required to check whether the structures which had not been identified by Mrs Wright were in fact there or were missing as she had thought. I use the word 'considerable' to emphasise the importance of the exercise that he was carrying out and that he was not carrying out an ordinary scan: this was a case where something was thought to be seriously wrong, and his task was to find out whether it was. So I use 'considerable' as a word of emphasis rather than to denote a particular standard of care.
62. Nor was there any dispute of substance between the witnesses as to how Professor Rodeck should in fact have gone about the scan. It was accepted that the observations and measurements that he had taken showed that he had apparently approached the task in manner to be expected and that in some respects he had taken further steps that would not commonly be taken. As I have described, the disagreement between the expert witnesses was whether Professor Rodeck should have discovered that the echoes he must have taken as representing the cavum septum, the anterior horns of the lateral ventricles and the anterior falx were in fact mimics of those structures and not the echoes of those structures. I say 'must have taken' because there is no record of what Professor Rodeck saw, and it is a matter of deduction as to what occurred. It is the task of the claimants to satisfy me on the balance of probability that, if he had exercised the skill and care to be expected of him, Professor Rodeck would have recognised the echoes as mimics.

Conclusion

63. In approaching the question which I have posed, there are two matters relating to the scan carried out by Professor Rodeck that are most important. The first is that his approach to the scan was a careful one. I know that because he looked at things which a tertiary scanner would not ordinarily look at. It was suggested that because he knew that Dr Meire had already given Mrs Lillywhite the 'all clear' he relaxed and dropped his guard. The record suggests that he did not do so. In his evidence Professor Rodeck said when asked about this that, far from being reassuring, the existence of Dr Meire's report revealed a conflict between Dr Meire and Mrs Wright which needed to be resolved. While it would be easy now for Professor Rodeck to believe that this was his approach on 3 December 1991 I think that it is borne out by the record. The second matter is that while it is clear that Professor Rodeck must have seen echoes which took to represent the relevant structures it is not known what he saw. The only way of hypothesising what he might have seen is by considering the structure of Alice's brain as it was at 4 months when the MR scan was carried out at Great Ormond Street Hospital.
64. The claimants' case was that Dr Meire too should have diagnosed Alice as abnormal. That is alleged in the context that, although Dr. Meire recorded that imaging was not easy, he reached a conclusion and did not ask Mrs Lillywhite to return for a further scan by him. Nor did he refer her to Professor Rodeck saying that he was unable to be certain himself. My impression is that Dr Meire's scan did leave something of a question mark. I saw that because of the reference in his report to 'if doubt … persists', and because of the effect it had on Mr Lillywhite. Nonetheless Dr Meire must have seen echoes which he took as representing the structures which should have been present.
65. The claimants' case in respect of Dr Haeusler's scan was that he was mainly concerned to see whether the cyst was still present and that at 29 weeks skull thickness would have made his task difficult. I am however satisfied that Dr Haeusler carried out a full scan, repeating most of what Professor Rodeck had done, and that he did so in a careful and methodical manner. While he knew that Professor Rodeck had found all in order, he also knew that Mrs Wright had found key structures missing.
66. The position thus is that three skilled sonologists, two with great experience, not only saw echoes which mimicked those of the normal structures but were convinced by them. I consider that this is substantial support for the case that Professor Rodeck was not negligent.
67. Next, what does the evidence that is available suggest that Professor Rodeck may have seen? At the end there was largely agreement between Mr Walkinshaw, Mr Howe and Dr Russell. The only candidates that survived were the echo of the monoventrical beak, to mimic the cavum septum, the 13-90 echoes to which mimic the anterior horns of the lateral ventricles, and the small piece of mid-line on Mrs Wright's picture (vi) for the anterior falx. I have said largely agreed because there was not agreement as to the last. But I do not think that the idea that Professor Rodeck (or Dr Meire or Dr Haeusler) located the forward end of Alice's actual falx bears scrutiny. It ran out at the highest point of the cranium and has disappeared in the last coronal view on the MR scan (9 of 16) where the beak of the monoventrical appears, or, as Professor Griffiths said, at the line of the ears.
68. The evidence of Professor Griffiths, Dr Twining and Mr Walkinshaw was that any echoes which the beak might have provided would have been in the wrong position and of the wrong shape to be taken by a careful sonologist for the cavum septum. I was initially impressed by this: it was clear and forcefully put. It was said that it was over the thalami, which was the wrong place, and the thalami were visible. Dr. Meire recorded that he could identify the thalami but that does not mean that he could see the outline of the whole : the posterior parts may have been visible but not the anterior. The whole does not show up clearly on Mrs. Wright's pictures. So I am unconvinced that I should take the thalami as a rock on which Dr. Rodeck should have built.
69. Taking the evidence as a whole I do not think that the cavum septum always appears as the clear landmark that one might expect from some of what I heard. One line may be missing. The lines may not be sharp and neatly aligned. I have also to bear in mind the size of the brain under examination and the very small distances involved between the position of the cavum septum and the supposed position of the beak at 18 weeks. I fully accept that the structure of Alice's monoventrical was well-established by the time of the scans, but do think that there is at least room for doubt as to where precisely it and its beak was proportionately situated at that time. Several witnesses emphasised the lack of knowledge as to the processes of development of abnormal brains. I think that, if I limit that by saying 'proportional development' there are good grounds for it. I have to bear in mind also Dr Russell's cases A and D, particularly D.
70. Professor Rodeck was asked questions in chief about the paper which contains figure 13-90, and referred to the echoes as a possible mimic of the anterior horns. He was not cross-examined about how he could have mistaken them, perhaps because they had not taken the prominence that they later did or because he was not an expert witness. But there was evidence from Dr Twining and Mr Walkinshaw, which I accept, that by 1991 it should have been known to tertiary sonologists practicing in England that they were to be distinguished from the echoes of the lateral ventricles which they abutted. It is not known what produces the 13-90 echoes. It seemed to be suggested by Dr Twining and Mr Walkinshaw that in any event Alice's brain would not have produced them because it lacked any deep sulci at 18 weeks or at any time. Nonetheless there was agreement between Mr. Walkinshaw, Mr. Howe and Dr. Russell that they are candidates. Also, because they are straight-line echoes, the idea that the echoes come from structures in sulci may have its difficulties. On the basis of the evidence which I heard it is possible that these echoes were produced in Alice's case and no other candidate to mimic the anterior lateral ventricular horns was established. It is not known how they would appear in a case where there were no anterior horns. Further, in the absence of horns it would not be so easy to distinguish them from echoes of the horns: for the contrasting structure is not there.
71. Mr Howe and Dr Russell accepted that the anterior falx was difficult. It is striking that there is a short central line on Mrs Wright's picture (vi) which cannot be explained. There was also a somewhat similar image in Dr Russell's case A.
72. It must be borne in mind that Mrs Wright could not find a cavum septum or the anterior horns of the lateral ventricals. What, if anything, she found as to the anterior falx is unclear. Did she find the mimicking echoes and discard them? It does not appear that she did. In effect she drew a blank. There is no explanation as to how that came about for her but not for the other three. The position of the fetus may have contributed to it.
73. I am not satisfied by the evidence that there was fault in failing to observe that Alice had a monoventrical. My conclusion on the evidence is that this is something which may on occasion be observed, but equally it may not. There were no other features of Alice's condition which were observable. The extra-cranial abnormities which often go with semilobar holoprosencephaly were all missing..
74. I have to put all these matters together in the whole context of the case, and decide whether on the balance of probability negligence is established. My answer is that it is not. I do not want to detract from the wider consideration of the issues which I have set out, but if I try to summarise my main reasons they are that the record suggests that Professor Rodeck approached his scan with particular care, the forceful circumstance that three experienced scanners reached a conclusion contrary to the correct conclusion of Mrs Wright, and that an investigation of what might have produced mimicking echoes has provided possible answers which do not point with clarity to negligence in failing to distinguish them.
75. I find without hesitation that, had a diagnosis of holoprosencephaly been made, or a diagnosis of other serious abnormality in respect of which a termination would have been offered – I include agenesis of the corpus callosum, Mr and Mrs Lillywhite would have chosen to terminate her pregnancy.
76. I am very conscious that my decision will come as a great blow to Mr and Mrs Lillywhite, just as if I had found negligence established, it would have been a blow, though of a different nature, to Professor Rodeck. Whether it may be some small comfort to them to know that Alice's birth was not the result of negligence I do not cannot tell.