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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		Claim No: MA 390637 Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2005

McKinnon, J. :

1. In this action, the Claimant claims damages for injury resulting from clinical negligence at the time of his birth. He was born on 12th April, 1985 at 01.38. This is a trial of liability and causation.
2. It is agreed that (i) the claimant suffers from severe choreo-athetoid cerebral palsy with preserved intelligence; (ii) the claimant's cerebral palsy was caused by a prolonged period of bradycardia at the end of labour lasting between 10 and 25 minutes; (iii) the probable cause of the bradycardia was the tightness of the cord around the fetal neck.
3. There are two principal issues:

i) Should the decision have been made at 00.30 on 12th April 1985 to opt for "trial by forceps";

ii) If not, should that decision have been made some 40 minutes later i.e. at least by 01.10 on 12th April, 1985?

"Trial by forceps" is a procedure carried out in an operating theatre: it is a procedure designed so that if delivery is not obtained by use of the forceps, there can be a rapid switch to delivery by caesarean section. It is the claimant's case that if Dr. Allen, the registrar, had made that decision whether at 00.30 or 01.10, the senior registrar, Dr. Wilcox would have been called to attend the trial of forceps: he would have examined the patient in normal circumstances, and the correct position of the baby's head would have been identified. There would then have been successful delivery of the baby using Kjellands forceps. Alternatively, if delivery was not obtained and bradycardia was triggered in the course of the use of forceps, then delivery would have been obtained by caesarean section within ten minutes of the onset of bradycardia.

4. The relevant events which are not in dispute may be summarised as follows. During her pregnancy, the claimant's mother, Ms. Kingsberry, had two ante-natal admissions to hospital. No complaint is made about these admissions and they have no relevance to the eventual outcome. This was Ms. Kingsberry's first pregnancy and she was 22 years old by the date of delivery. She went into labour during the morning of 11th April, 1985. She was admitted to St. Mary's Hospital, Whitworth Park, Manchester at about 14.00 hours. No complaint is made about any matter during the first stage of labour, which continued until 22.20. At this time, a vaginal examination revealed that the cervix was fully dilated, which signalled the beginning of the second stage of labour.
5. During the first stage of labour nothing untoward had occurred. A cardiotocograph (CTG) had commenced at 14.30 which indicated a healthy fetal heart. At about 16.30 rupture of the membranes occurred and a fetal scalp electrode was applied. The CTG continued to be normal. At about 20.30 Ms. Kingsberry received epidural analgesia.
6. An examination at 22.20 by midwife Pond (now Mrs. Moyo) revealed that the cervix was fully dilated, that there was a cephalic presentation 1 cm. below the ischial spines, that the position of the head was right occipital posterior (ROP), that there was no caput or excessive moulding and there was no sensation or urge in the mother to push. Caput is oedema caused by protrusion of part of the fetal head through an incompletely dilated cervix. Moulding is a change in the shape of the skull as a result of pressure from the maternal pelvis on the bones of the vault of the baby's skull. The ischial spines are the prominences at the mid point through the pelvic cavity.
7. At 22.25 active pushing commenced and on examination the head remained ROP and deflexed. At 00.10 there had been no progress in the descent of the head after 45 minutes pushing and the midwife notified Dr. Oelbaum, the obstetrics SHO. At 00.20 to 00.30 Dr. Allen and Dr.Oelbaum were in attendance. Dr. Allen undertook a vaginal examination. Dr. Allen's note of this examination reads:

"00.30.Vaginal examination to assess. Poor progress in second stage.

Vulva and vagina healthy. Fully dilated. Cephalic presenting below spines. SS [sagittal suture] in oblique.

No caput/moulding

Clear liquor

For sitting [Epidural] top-up and re-examination".

Thus, poor progress in the second stage was noted. The presenting part of the fetal head was said to be below the ischial spines and no caput or moulding was observed. Dr. Allen anticipated that a delivery by use of forceps would be necessary, so she directed a top-up of the epidural.

8. At 01.10 Dr. Allen attended and prepared for a forceps delivery. She identified the position of the head as left occiptal anterior/transverse (LOA/T). She attempted a manual rotation of the head to what she believed to be the occipital anterior (OA) position. She applied Simpsons forceps which locked with ease and attempted to deliver the baby but there was no advance of the head. A fetal bradycardia was noted and the senior registrar, Dr.Wilcox, was summoned at 01.20.
9. Dr. Wilcox arrived 01.25. On examination he, too, believed the baby's head was in the LOA/T position. He attempted a manual rotation to what he believed was an OA position. The head reverted to its original position. He applied Kjellands forceps. This type of forceps allows rotation of the fetal head. He rotated to what he thought was the OA position. The baby as in fact born in the occipital posterior position (OP).
10. The baby was born at 01.38 in a poor state as a result of the profound bradycardia at the end of labour.
11. The legal framework is uncontroversial. It is best summarised in the judgment of Lord Scarman in Maynard –v- West Midlands RHA [1984] 1 WLR 634 at 638 (e):

"The case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of Lord President Clyde in Hunter –v- Hanley …can be bettered:

"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 a doctor is whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…" "

Lord Diplock in Sidaway –v- Governors of Bethlem Royal Hospital [1985] AC at 895 B said this:

"In matters of diagnosis and the carrying out of treatment, the court is not tempted to put itself in the surgeon's shoes; it has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect to any preference it may have for one responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion".

McNair, J. in Bolam –v- Friern Hospital Management Committee [1957] WLR 582 at 586 gave this direction:

"How do you test whether this act or failure is negligent?… Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".

Finally, in respect of the Bolam Test, it is necessary to refer to the speech of Lord Browne-Wilkinson from the Bolitho –v- City and Hackney HA [1998] AC 323 at ….: "The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so 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… In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in the rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion the views generally held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scott makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed ".

It is to be noted that the Bolitho approach to the assessment of whether a body of opinion is a responsible one by reference to whether it withstands logical analysis has become a commonplace within the assessment of whether or not a doctor's act or omission is or is not negligent (see Marriott –v- West Midlands HA [1999] Lloyds Law Rep.Med.23 at 27-28, and Reynolds –v- North Tyneside HA [2002] Lloyds Law Rep. Med. 459 at 463 –464, 475). Those cases are illustrative of the circumstances where it is said by a defendant that a practice exists reflecting a body of opinion at the material time which is found to be negligent by the court on the basis that it does not withstand logical analysis because there was a failure to guard against a relevant risk.

12. As to causation, the relevant question is whether the claimant has proved that the wrongful act or omission (here, the failure to conduct a trial by forceps either at 00.30 or 01.10 on 12th April 1985) caused or materially contributed to his injury (see Wilsher –v- Essex AHA [1988]AC 1074, as explained in Bolitho (supra.) at pages 239 – 240. Where the alleged negligence is an omission, rather than an act (e.g. a failure by a doctor to attend, when it is alleged that he should have done), then it is necessary to make findings of fact as to what would have happened if that doctor had attended, and then to ask whether those anticipated, hypothetical acts would have been negligent or not – see Bolitho. If, as in that case, the doctor who should have attended would have acted in a particular way, which was not negligent, but which would nevertheless have resulted in the injury occurring, then the claimant's causation case fails. That is because, even if there had been no negligence, the injury would still have been suffered. It is common ground that the burden of proving negligence and causation is and remains upon the claimant throughout, the relevant standard of proof being one of a balance of probabilities.
13. I heard evidence on behalf of the claimant by the following witnesses:

Julie Kingsberry (Evidence read)

Mr. Roger Clements FRCS(ed), FRCOG, FAE (and reports)

Dr. Peter Buchan BSc, MD, FRCOG, MEW1 (and reports)

Professor Malcolm Levene FRCP, FRCPCH, MILT (and report)

I heard evidence on behalf of the defendant by the following witnesses:

Dr. Susan Oelbaun (Evidence read)

Dr. Paul Donnai (Evidence read)

Dr. Ruth Allen Beatrice Moyo

Dr. Frank Wilcox

Professor James Neilson MD, FRCOG, (and report)

Mr. I. Z. MacKenzie MD, FRCOG, (and report)

Dr. Janet Rennie, MD, FCRP, FRCPCH, DCH (and report)

As well as agreed medical records, medical illustrations and cardiotocograph, there were some 593 pages of medical literature. I had before me the obstetric experts joint statement. The relevant parts of all that material appear in the course of this judgment.

14. The claimant's principal case is that Dr. Allen attended at 01.10 and was faced with a number of facts which were known or should have been known to her, which made it sub-standard for her to proceed to forceps delivery on the ward. It is submitted that the alternatives opened to Dr. Allen consistent with reasonable competent practice in 1985 were (i) to call her senior registrar to attend; (ii) to proceed to caesarean section; (iii) to set in motion a trial of forceps in theatre with her senior registrar in attendance. In any of those scenarios, it is the claimant's case that delivery would have occurred within 10 minutes of the onset of any bradycardia. It was the agreed position of the obstetric experts that trial of forceps was an accepted obstetric management technique by 1985 and was to be employed when the operator recognised or ought to have recognised that the prospects of successful delivery were uncertain. The claimant says that the first issue to address is whether in prospect to the reasonably competent registrar there was uncertainty as to outcome. If there was, the experts had agreed in the joint statement and in the course of evidence that a trial of forceps was appropriate. It is submitted that Professor Neilson's evidence that this was not the practice in 1985 was plainly in error. The relevant facts or factors before Dr. Allen were as follows:

(1) There was a transverse arrest in the second stage for some two hours and fifty minutes;

(2) There was no progress of station of the fetal head during the course of the second stage;

(3) This was necessarily going to be a mid-cavity forceps delivery;

(4) In view of the transverse position (whether ROP/T or LOA/T) it was a delivery requiring rotation whether manually or instrumentally;

(5) The CTG trace was pathological, indicating the presence of fetal distress and was characterised by three abnormalities: a base line tachycardia, reduce variability and variable decelerations – a complicated tachycardia:

(6) In the event of failure of forceps delivery, Dr. Allen would not be able to rescue the claimant by means of Kjellands forceps if a long rotation was required and/or would have had to order an emergency caesarean section.

It was that constellation of six factors which rendered it sub-standard for Dr. Allen to have taken the course that she did at 01.10. It will be necessary to consider each of those factors in turn but factors (1) (2) (3) (4) and (6) were effectively not in dispute. As to (5), there was a large measure of agreement between the experts save that Professor Neilson changed his approach somewhat in his evidence and Mr. MacKenzie adopted a different approach. As to the defendant's suggestion that there was a practice in the circumstances of this case not to perform a trial of forceps in 1985, the claimant says that that is not a practice in accordance with a responsible body of obstetric opinion in 1985 and does not withstand logical analysis. It would involve needless exposure to risk for the sake of administrative convenience. If the proper risk benefit analysis applied in 2005 required a trial of forceps, then it applied equally in 1985.

15. It is the defendant's case that the CGT trace was not pathological; the fetus was experiencing stress, but was not severely distressed. It was in need of delivery and Dr. Allen acted reasonably in preparing for forceps delivery in the delivery room and in not deciding to set up a trial of forceps. Further, it is submitted that it was not the practice in 1985 to carry out a trial of forceps in the operating theatre.
16. As to causation, it is the claimant's primary submission that, once Dr. Allen had set up a trial of forceps, and called for Dr. Wilcox, Dr. Wilcox should have proceeded to a trial of forceps in the operating theatre. He would have correctly identified the position of the fetal head under anaesthesia and by the application of Kjellands forceps he would have delivered the claimant within ten minutes from the application of the forceps. That would have meant that the claimant would have been delivered undamaged.
17. The defendant's submission on causation is that, even if there had been a trial of forceps in the operating theatre, the claimant would still have been delivered damaged because Dr.Wilcox would have been present only as an advisor and, thus, not scrubbed up and gowned. Once Dr. Allen had failed to deliver the baby by forceps, Dr.Wilcox would have had to prepare himself and would taken some thirteen minutes to carry out delivery by Kjellands forceps. Thus the ten minute rule would still have been exceeded. Brain damage normally occurs after ten minutes of bradycardia.
18. It was agreed between the obstetric experts that trial of forceps was an accepted obstetric management technique by 1985 and was to be employed when the operator recognised or ought to have recognised that the prospects of successful delivery were uncertain. Thus, the first issue on breach of duty is whether in prospect to the reasonably competent registrar there was uncertainty as to outcome. If there was, the experts agreed in the joint statement and in the course of evidence that a trial of forceps was appropriate (subject to Professor Neilson's evidence as to what the practice was in 1985 which will be considered later).
19. The six relevant factors will be considered in turn.

The sixth factor would result in further delay and the exposure of the claimant to unnecessary risk as a result of fetal distress. In summary, Dr. Allen was, for the purposes of mid-cavity instrumental delivery, an inexperienced and insufficiently skilled operator, requiring "senior direction and supervision".

20. There was a possible additional seventh factor, if it should have been recognised by Dr. Allen that her assessment that the position of the baby's head was in fact ROP/T should have been open to significant doubt by her. If so, that would have been a further factor indicative of an uncertain outcome.
21. As to the first factor (transverse arrest in the second stage), this is common ground between the experts. It is a predictor of difficulty with forceps delivery. It is most commonly associated with the OP position of the fetal head. It indicates that there is likely to be a relative cephalo-pelvic disproportion [CPD]. The duration of the second stage is significant because it further indicates that relative CPD was likely to be problematic. There had been no spontaneous progress (in terms of descent of the fetal head) over a lengthy second stage, both during the latent and active phase of the second stage. This is consistent with relative CPD and an OP position of the fetal head because the largest diameter with a deflexed presentation was yet to pass the ischial spines, even where the head is said to be engaged.
22. As to the second factor (absence of progress), again this is common ground. The head was recorded to be one centimetre below the ischial spines at 22.20 and remained so at 01.10 and 01.25. By definition, this meant that there had been no progress over the entire second stage. There was some discussion as to whether Dr. Allen was entitled to conclude that there had been some progress over the second stage because of a recording at mid-night that the vertex was visible. It is, however, entirely clear that there had in fact been no progress in terms of descent of the fetal head.
23. As to the third factor (mid-cavity forceps delivery), there is no dispute about this factor. It is common ground that mid-cavity forceps delivery is associated with a higher risk of failure than with low cavity forceps delivery. The relevance of the midcavity level of the fetal head was that it had arrested in that position in the second stage and remained arrested in a transverse position, predicting relative CPD. This was not what was described as an "outlet" or "lift-out" forceps delivery or a low cavity forceps delivery that could be safely undertaken by a junior doctor such as Dr. Allen on the ward. In such a straightforward delivery, rotation would not be required and there would be no issue of relative CPD.
24. As to the fourth factor (rotational delivery), there was also no dispute that in view of the transverse position (whether ROP/T or LOA/T) this was a delivery requiring rotation whether manually or by instrument. Rotation can fail, resulting in failed delivery either because the head can only be rotated to a sub-optimal position for delivery (i.e. OP) or because the head reverts to the transverse position, (as happened to Dr. Wilcox) requiring rotation by some other means – in this case, Kjellands forceps. The method adopted by Dr. Allen, namely, manual rotation, was more likely to fail than rotational forceps. Dr. Allen would not perform a rotational forceps delivery, but would have called her senior because of her lack of training in that regard. She elected a less favourable method of rotation (regardless of whether the fetal head position was ROP/T or LOA/T) with no ready and immediate means of rescue should either the rotation fail or the subsequent forceps delivery applied fail. It is the claimant's case that Dr. Allen could not properly and responsibly be confident that she would succeed in prospect either to rotate or subsequently to deliver. The need for rotation required senior input because rotation by whatever means was associated with a risk of failure, as in fact occurred. It is for that reason that Mr. Clements and Dr. Buchan were of the view that senior assistance was required for a rotational delivery.
25. As to the fifth factor (the CTG trace at 01.10), it is the claimant's case that from 00.30until the onset of the bradycardia, the CTG trace was pathological, indicated the presence of fetal distress and was characterised by three abnormalities: (i) a base line tachycardia, (ii) reduced variability and (iii) variable decelerations – a complicated tachycardia. In the view of Mr. Clements and Dr. Buchan it would be associated with a probability of acidaemia. It had been agreed in the experts' meeting between Professor Neilson and the claimant's experts that for the period 00.30 to 01.15 there was (1) a persistent tachycardia of 170 to 180 beats per minute (bpm); (2) there was reduced base-line variability and (3) repeated late deceleration (although Professor Neilson noted that between 00.50 and 01.06 there were no decelerations).
26. In his report Professor Neilson states that:

"It is after this note [00.30] that the trace becomes clearly abnormal, with reduced variability, a base-line tachycardia of 170 bpm, and repetitive late decelerations – a picture suggestive of fetal hypoxaemia".

Later in his report, he states:

"The pattern at 00.55[said in evidence to be 00.45] of recurring late decelerations and base-line tachycardia and reduced variability is sufficiently well established as to require medical review."

He further states in his report:

"At around 00.38 consideration of forceps delivery for "failure to progress" should have been entertained. At around this time, there was marked deterioration in fetal condition as evidenced by the CTG. These changes should have been recognised by 00.55 ….. and Dr. Allen recalled".

No distinction was drawn in Dr. Neilson's report between the trace from 00.30 to 00.50 and 00.50 to 01.10 in the way drawn in his evidence. Indeed the Defence was amended to reflect the views of Professor Neilson as reflected in his report.

27. It is the claimant's case that this late qualification of Professor Neilson's opinion should not be accepted because it is wrong and the Court should accept that the relevant section of the trace had to be looked at as a whole, and not chopped up into little segments of time. Looked at as a whole over the period from 00.30, it remained abnormal with the features described by the claimant's experts. The absence of frank late deep decelerations from midnight did not detract from that. Professor Neilson had ignored the fact that even after 00.50 there were two decelerations i.e. at 00.56 and 01.02 to 01.04. It was not suggested by Professor Neilson that this was anything other than a complicated tachycardia throughout from 00.30 to 01.10, at worst pathological, at best non-reassuring. The claimant asked the Court to note that a premise for Dr. Rennie's views on causation and why ten minutes of bradycardia would have resulted in irreversible brain damage rather than fifteen minutes as contended for by Professor Levene was that there was a fetal acidaemia as a result of a complicated tachycardia prior to the onset of the bradycardia; indeed, the cross-examination of Professor Levene proceeded on that premise. As the claimant put it, Professor Neilson gave no good reason for the qualification now added in his evidence. The claimant submits that the evidence as to abnormalities of the CTG present from 00.30 to 01.10 from Mr. Clements and Dr. Buchan should be accepted. It was cogent and consistent. Subject to Professor Neilson's qualification as to the appearance of the trace from 00.50 as non-reassuring, he agreed with them that it was pathological. That, as the claimant submits, was hardly an indication of fetal health or a guarantor of fetal health, and was a factor accepted by Professor Neilson as "making the situation more complex".
28. The claimant submits that the evidence of Mr. MacKenzie as to the trace between 00.30 and 01.10 lacked any credibility and was not even consistent with the evidence of Dr. Allen, when asked to review the trace twenty years later (as to which see below). Mr. MacKenzie found himself in a minority of one as to the interpretation of the CTG and, as the claimant submits, clearly his was not a view shared by the defendant for the purposes of its own Amended Defence, which was predicated on Professor Neilson's report. The claimant submits that Mr. MacKenzie's view is to be rejected as wrong.
29. Dr. Allen accepted in cross-examination that the CTG showed fetal distress, a point Mr. MacKenzie did not accept. Dr. Allen did not suggest that there was a change in the pattern from pathological to non-reassuring at 00.50. The following exchange in the cross-examination of Dr. Allen is to be noted:

"Q: Would you agree that this trace indicates fetal distress?

A: Perhaps the development of some signs of fetal distress but the liquor is still clear.

Q: Does the trace indicate the development of fetal distress?

A: Two or three late decelerations, tachycardia and some reduction in variability.

Q: You agree that those three features show fetal distress?

A: Yes they are showing features of fetal distress.

Q: Do you refer to the CTG in your note?

A: No.

Dr. Allen thus now recognises that the trace showed fetal distress. The true question, as the claimant submits, is of what relevance such fetal distress is to the decision making process at 01.10 as to the mode and place of delivery. The claimant submits that it is clear that, in the presence of fetal distress, mid-cavity forceps delivery should only be attempted as a trial. That was not because bradycardia would be predicted (although the claimant submits that it would be recognised as a rare risk) but because failure to deliver would put the baby at risk as a result of delay. The claimant submits that safe obstetric practice in 1985 or 2005 could not be predicated on taking such a risk; that is what happened in this case and it was an entirely foreseeable risk, as the claimant submits.

30. As to the sixth factor (the experience and skills of the operator), it is clear that in the event of failure of forceps delivery, Dr.Allen would not be able to rescue the claimant by means of Kjellands forceps in the event that a long rotation was required and/or would have to order an emergency caesarean section, with resultant further delay and the exposure of the claimant to unnecessary risk as a result of fetal distress. It was not open to question that Dr. Allen was not a "senior experienced obstetrician" as required by the editorial written by B.D. Paintin in the Journal of Obstetrics and Gynaecology 1982 volume 89 pages 495 – 500. Paintin said this:

"What are the conditions for safe mid-cavity forceps delivery? The first condition is the involvement of a senior experienced obstetrician. Several years practice are necessary. Skill must not be gained at the expense of the patient. Junior obstetricians may perform the delivery but they must have senior direction and supervision".

As the claimant submits, Paintin was describing what was required at the time he wrote his editorial. Dr. Buchan and Professor Neilson agreed that Dr. Allen was for the purposes of mid-cavity instrumental delivery an inexperienced operator requiring "senior direction and supervision". Mr. MacKenzie as the claimant submits, misunderstood Dr. Allen's level of experience at the time. Mr. Clements clearly regarded Dr. Allen as requiring senior input. As the claimant submits, to permit an inexperienced operator without the requisite skills to rescue the baby should rotational forceps be required was to court difficulty and expose the baby to unnecessary risk at the very least.

31. The claimant submits that the constellation of factors here called for a trial of forceps; the Court should accept Dr. Buchan's opinion that an obstetrician at registrar level in 1985 who did not anticipate this to be a forceps delivery which may be difficult to the extent that trial of forceps would be required, would be ill-advised, under-trained and not acting competently. As Dr. Buchan put it, "in obstetrics we have to have contingency plans. That is where Dr. Allen fell down. She did not have a second plan".
32. Professor Neilson recognised the situation as one of "amber lights". That, as the claimant submits, hardly suggested a decision of certainty. The question was not, as Mr. MacKenzie eventually accepted, whether Dr. Allen did or did not have doubts as to the prospects of successful delivery by her chosen method at 01.10 (manual rotation followed by mid-cavity forceps delivery) but whether she should have done so.
33. As to whether a trial of forceps would or should have been carried out in 1985, Professor Neilson made the following concessions in cross-examination:

"Q: Would you agree, in this case, whether viewed at 00.20 or 01.10, this was a mid-cavity forceps delivery which may have been difficult?

A: Yes.

Q: And if this recommendation had been followed, it would have been a trial of forceps?

A: This recommendation has eventually been followed and in 2005 this would have been a trial of forceps but that was not the situation in 1985."

The "recommendation" referred to appears in the Paintin editorial in 1982 as follows:

"All mid-cavity forceps deliveries that may be difficult should be performed in an operating theatre prepared for caesarean section".

34. The claimant agrees with Professor Neilson's concessions but submits that he was plainly in error in suggesting that it was not the practice in 1985 to have a trial of forceps. As the claimant submits, a trial of mid-cavity forceps may have been a less frequent occurrence in 1985 than in 2005, but the indications for it were completely unchanged. It follows that, if it was indicated in 2005, it was indicated in 1985. As the claimant puts it, ubiq uity of practice was not to be confused with the indication for a trial of forceps. The claimant refers to the fact that all the contemporary text books state that this was the appropriate management technique for mid-cavity instrumental delivery where prospectively there was uncertainty as to outcome. The relevant extracts are usefully collected as an appendix to Mr. Clement's report. He refers to C.J. Dewhurst (1981), Chapter 28, Obstetric Operations and Procedures (Literature Bundle page 471), I. Donald (1979) Chapter XIX Technique and Pitfalls of Instrumental Delivery (Literature Bundle page 648) and D. Llewellyn Jones (1977), Chapter 50, Forceps (Literature Bundle page 377). The claimant relies on the Paintin editorial in 1982 which describes the standard of care then applying and effectively agreed by the experts that "all mid-cavity forceps deliveries that may be difficult should be performed in an operating theatre prepared for caesarean section" [Literature Bundle page 301]. No text book expressing a contrary view had been advanced by either party. It was agreed by all the experts that it was an accepted obstetric management technique in 1985. The only question therefore, as the claimant submits, is whether trial of forceps was indicated because the prospect of success was uncertain. That question was answered affirmatively by Professor Neilson and by the claimant's experts. Mr. MacKenzie failed to engage with the question properly. The Johanson Paper in 1989 (Literature Bundle page 586) did not cast doubt upon that proposition. It was not a paper looking at the indications for trial of mid-cavity instrumental delivery. It addressed an entirely different question, namely, the efficacy of ventouse against forceps delivery in two district general hospitals. It provided no insight as to how many were mid-cavity deliveries with the combination of circumstances applicable here and which were not performed as trials and why. The paper could not be used to undermine the premise which was accepted by both obstetric experts for the defendant (that a mid-cavity delivery by trial of forceps was indicated in 1985 where the prospects of success were uncertain).
35. The claimant's case is that in 1985 reasonably competent obstetric practice was that all mid-cavity forceps deliveries where the prospects were uncertain required to be performed as a trial where the factors identified above operated. That was neither all instrumental deliveries nor was it all mid-cavity instrumental deliveries. It was thus not correct to say that if a trial of instrumental delivery was indicated in the present circumstances, then all instrumental deliveries would have to be conducted as a trial.
36. The only "downside" advanced in relation to the application of the practice contended for on the facts of this case is that it would require the senior registrar to be called. The claimant submits that that did not bear scrutiny. The system at St. Mary's Hospital was specifically designed to provide a senior registrar on call in the hospital. He was on call to deal with cases of difficulty. The claimant seeks a finding that Dr. Allen was negligent in proceeding to deliver by manual rotation and forceps delivery on the ward and failing either to call Dr. Wilcox before going any further or in failing to proceed to caesarean section or to set in motion a trial of forceps in theatre with her senior registrar in attendance.
37. It is the claimant's case that, if it is asserted that there was a practice in the circumstances of this case not to perform a trial of forceps in 1985, then that is not a practice in accordance with a responsible body of obstetric opinion in 1985 and does not withstand logical analysis. It would involve needless exposure to risk as a result of administrative convenience. If the proper risk benefit analysis applied in 2005 required a trial of forceps, then it applied equally in 1985 and the defendant would still be in breach of its duty of care owed to the claimant.
38. As to the possible additional seventh factor (that Dr. Allen should have realised that her assessment at 01.10 of the position of the fetal head was open to significant doubt), the claimant submits that at the very least at 01.10 Dr. Allen's assessment as LOA/T should have been open to significant doubt by her and that this was a further reason to anticipate difficulty and call for review by her senior registrar, Dr. Wilcox. That was because everyone agreed that it was extremely unlikely that the occiput crossed the mid-line during the course of labour, from left to right. Further, it was documented by the midwife at 22.20 and 23.25 that the position of the head was ROP. If Dr. Allen did not define the position as ROP at 00.20, then she had to conclude either that the occiput indeed crossed the mid-line or that the midwife was wrong not only on two previous occasions at 22.20 and 23.25, but also the first midwife who defined the occiput as on the right at 14.15, albeit in an ROA position. That would have been a most improbable conclusion and open to significant doubt. Mr. MacKenzie would have expected Dr. Allen to think "hold on" and double check. As the claimant submits, the minimum required in those circumstances was for Dr. Allen to call her senior registrar to check the position because it would be open to doubt. Dr. Allen could not safely conclude that she was right in circumstances where she had to be as sure as she could be before embarking on forceps delivery, particularly where the position would affect the degree of rotation required. The claimant submits that there is no evidence upon which the Court can rely to suggest that Dr. Allen had excluded the inevitable doubt on the matter herself. The contemporary documentation did not identify the manner in which she sought to define the position of the fetal head. She did not describe by what method she sought to define the position. The claimant seeks a finding that the matter was in prospect open to significant doubt.
39. The defendant did not dispute factors 1, 2, 3, 4, or 6. The fifth factor (the trace from 00.30 to 01.10) was very much in issue. There was no agreed description of the trace which was not surprising given the widely differing views which research had demonstrated that the interpretation of CTG traces can produce. The defendant relied upon the views of their experts.

Professor Neilson said:

"From 00.30, there were some signs of fetal distress….. At 00.44, 00.46, 00.49….. there were signs of fetal compromise… The trace then in fact improved somewhat. The late decelerations stop after 00.50 but the heart rate until 01.05 is above 160 bpm so it is a little fast. There is also some reduction in variability. In my judgment, the baby would be experiencing some degree of compromise, not severely distressed but in need of delivery".

Then in cross-examination:

"I said at the experts' meeting that the pattern of abnormalities was sufficiently well established that by 00.50 the midwife should have recalled Dr. Allen….. The epidural top-up is at 00.30. The first thing of note is the deceleration at 00.37… Shortly after that, the base line returns to 170…. Certainly by 00.45 or 00.48, I would accept a base line tachycardia of 170 –180. By then there are repeated late decelerations. There is a loss of variability although the pattern is mixed. I would agree that this sequence is worrying. At 00.50, the midwife should have called Dr. Allen back. Dr. Allen should have decided that there was evidence of fetal distress. By 00.50 there was evidence of fetal distress. It improves after that, but in the 15 minutes prior to 00.50 it shows evidence of fetal distress. The sequence from 00.50 to 01.05 is not normal but is better than the sequence from 00.35 to 00.50. There is a borderline tachycardia of around 160. Between 00.55 and 01.05, it is between 160 and 170 bpm. So there is a mild tachycardia. There is some reduction in variability, not a loss in variability. There are no late decelerations and that is why I think it is better than the preceding trace. In the experts' meeting, I note that there are no decelerations after 00.50 until 01.06. I would accept signs of fetal compromise. The baseline rate has increased and variability has reduced but there is not evidence of frank fetal distress… Between 00.50 and 01.05, the chances of asphyxia if delivered then were really quite small…. The fact that variability was normal after 01.06 gives some reassurance that, although the baby was compromised, he was not severely distressed. The trace from 00.50 to 01.05 is nonreassuring in the sense of not showing positive signs of fetal health but is less so than from 00.30 to 00.55."

In his evidence, Mr. MacKenzie said:

"…. If Dr. Allen looked at the pattern intervening between 00.30 and 00.55, I would have expected her to have noted variable decelerations and a tachycardia between 00.55 and 01.100 so there was a change in the pattern from previously. I would refer to the pattern up to 01.00 as suspicious… I would have interpreted the fetus as being under some stress. Not distressed. A situation which is described as fetal stress. If left unattended, it would lead to distress….. My interpretation of the trace does differ from some of the other experts…..My views are not consistent with the other three experts in this case… Nothing is precise in the interpretation of CTG… ".

And then in cross-examination:

"As to 00.30 to 01.00/01.10, I do not agree with Mr. Clements and Dr. Buchan that this is a pathological trace. There is not reduction in variability to less than 5 bpm… There is a tachycardia which rises to about 170 bpm by 01.00 … There are some late decelerations but some are early. Therefore they are variable…. I disagree with Professor Neilson's interpretation that the trace was pathological until 00.50.The abnormalities that are seen could well be attributable to the epidural top-up".

40. Thus, as the defendant submits, the conclusions of the defendant's two experts are: Professor Neilson: the baby experiencing some degree of compromise, not severely distressed but in need of delivery; Mr. Mackenzie: the fetus under some stress. Not distressed. The situation which is described as fetal stress. If left unattended it would lead to distress. If a blood sample had been taken at that stage, it would have shown distressed results.

Each, as the defendant submits, is clearly of the view that action is required on this trace, because the fetus is experiencing stress, but is not severely distressed. It is in need of delivery.

41. The defendant submits that the central questions are: confronted with this situation at 01.10/01.15, was it now mandatory for Dr. Allen to (i) involve her senior registrar, Dr. Wilcox and (ii) take the mother to theatre and (iii) set up a trial of forceps or was it Bolam reasonable for her to conclude that she must get on with preparing delivery by forceps, within the delivery room, without the need to seek permission from her senior, Dr. Wilcox?
42. In the defendant's submission, this Bolam question (would no responsible body of registrars, with this experience, in this setting, in 1985, have reached the same conclusion as Dr. Allen, and proceeded promptly, on her own, to the forceps delivery) should be answered in the defendant's favour if the Court considered that Mr. Mackenzie was accurate and reliable when he said:

"If I had been in the room at 00.20/00.30 with Dr. Allen, my management would not have been any different. At 01.10 I would have done the same as Dr. Allen giving her findings and her interpretation of the fetal position".

Reliance is also placed upon Professor Neilson's view:

"I was a senior registrar in 1985 and practice in many ways was quite different then. I do not recollect ever doing a trial of forceps during that time… In answer to the question, was it mandatory to do a trial of forceps in theatre in these circumstances, the answer is no. I do not agree that Dr. Allen had to call the senior registrar…. At that time registrars were expected to do mid-cavity forceps deliveries by themselves unless they anticipated particular difficulties. I have borne in mind, in answering, the factors of alleged fetal distress and the need for rotation…".

43. As the defendant submits, Professor Neilson's evidence demonstrates that the claimant's experts overlooked two matters; (i) that the calibre and experience of registrars has reduced since 1985 and (ii) as a result, trial of forceps is much more widely used now than it was then.
44. The evidence of Dr. Allen and of Dr. Wilcox was also relied on by the defendant. Dr. Allen said:

"….In 1985 trial of forceps was not common practice …. Now it is common practise. It was not then. It would not be normal practise then to have a senior registrar in attendance for a forceps delivery…..".

Dr. Wilcox said:

"Trial of forceps was not a procedure done at this hospital at that time….. Labour rooms were very well equipped and almost universally delivery was done in the labour room….I cannot recall any trial of forceps in my whole time at St. Mary's. It was not an established practice at St. |Mary's…"'

Dr. Allen also said, in cross-examination, that looking back at the case, she would still not have called a senior registrar in all the circumstances.

MY CONCLUSIONS ON BREACH OF DUTY

45. In my judgment, the six factors relied upon by the claimant did exist. I accept the claimant's submission as to the significance of the CTG trace. It is clear that from 00.30 until the onset of the bradycardia, the CTG trace was pathological and indicated the presence of fetal distress. It was characterised by three abnormalities: (i) a baseline tachycardia, (ii) reduced variability and (iii) variable decelerations. It was a complicated tachycardia. I do not accept the very late qualification introduced by Professor Neilson in his evidence as to the distinction between the trace from 00.30 to 00.50 and 00.50 to 01.10. There is no such qualification in his report or indeed in anything that appears in the joint experts' meeting. And there is no reason now proffered for this late qualification. 1As I see it, the evidence of Mr. Clements and Dr. Buchan as to the proper interpretation of the trace should be accepted and I accept it. That is an interpretation which is now accepted by Dr. Allen herself. She agreed in cross-examination that the trace by 01.10 did show features of fetal distress. It seems to me important that the defendant chose to rely upon Professor Neilson's report in drafting the Amended Defence. That pleading is based upon Professor Neilson's report (obviously without the very late qualification in his evidence) and does not (as it seems to me) rely upon Mr. Mackenzie's minority view. Having seen Mr. Clements, Dr. Buchan, Professor Neilson and Dr. Allen and having studied the CTG trace, I am of the firm conclusion that I can safely reject Mr. Mackenzie's view as wrong. The essence is, as I find, that there was here clear evidence of fetal distress. This was clearly, as I find, a case in which in prospect to the reasonably competent registrar, there was uncertainty as to outcome. As I find, trial of forceps was an accepted obstetric management technique by 1985 and was to be employed, as all the experts agreed, when the operator recognised or ought to have recognised that the prospects of successful forceps delivery were uncertain. As there was undoubtedly such uncertainty as to outcome, a trial of forceps was mandatory. That is what would have happened in 2005. Everyone is agreed about that. Why should that not have been the position in 1985? I accept the evidence of Mr. Clements and of Dr. Buchan that, for all practical purposes, there was no difference between 1985 and 2005 in their experience. Just as a trial of forceps was called for here in all the circumstances, as a result of the six factors referred to in 2005, so, all other things being equal, a trial of forceps should have been mandatory in 1985. As it seems to me, no good reason has been advanced as to why, a trial of forceps being called for, that should not have been the procedure adopted in 1985. It is said that there was a practice in 1985 not to perform a trial of forceps in the circumstances of this case. I find it extremely difficult to accept that as a matter of evidence. Even if it is right that there was such a practice in certain hospitals then, most exceptionally, I am driven to the conclusion, as it seems to me, that such a practice is not in accordance with any responsible body of obstetric opinion in 1985. Further, it does not withstand logical analysis. I accept the claimant's submission that such a practice, which I would label as indefensible, involves needless exposure to risk in the apparent interests of administrative convenience. It seems to me that the claimant is right that the proper risk benefit analysis applied in 2005 did require a trial of forceps and, indeed, a trial of forceps would have resulted in this case. That being so there is no sensible reason, as it seems to me, why such an approach should not apply equally in 1985. I cannot accept that the reasons put forward for the alleged 1985 practice such as registrars then being given more responsibility satisfactorily explains why, when the procedure of trial of forceps was undoubtedly called for, it did not then take place.
46. I find that Dr. Allen was negligent in proceeding to delivery by manual rotation and forceps delivery on the ward and in failing either to call Dr. Wilcox before going any further or to proceed to caesarean section or to set in motion a trial of forceps in theatre with her senior registrar in attendance. I therefore find breach of duty in favour of the claimant.

CAUSATION

47. I now come to causation which is divided into two parts. The first part may be called the "Bolitho" part of causation. That requires the court, if breach of duty is found in relation to an omission (here the failure to set up in theatre a trial of forceps) what would have happened had that negligent omission not occurred. The second part of causation requires the court to consider whether the claimant has established any injury flowed from such negligence.
48. I deal with the Bolitho part of causation first. It is the claimant's case that Dr. Wilcox would have attended and would probably have correctly identified the position of the fetal head. Dr. Wilcox should have proceeded to a trial of forceps in theatre. With the correct identification of the position of the fetal head under anaesthesia and by the application of the Kjellands forceps, Dr. Wilcox would have delivered the claimant within ten minutes from the application of the forceps. There was a gap of at least four minutes between the application of forceps and the onset of the bradycardia. There was no reason why that gap should not have subsisted in a trial of forceps. Dr. Wilcox took some 13 minutes from his arrival to deliver the baby. It is accepted that he would not have taken as long in a trial of forceps having diagnosed the position of the head correctly. Even if he had taken 13 minutes to deliver the baby from the moment he applied the forceps then the baby would have suffered only 9 minutes of bradycardia up to the moment of delivery within the ten minutes which are generally accepted a baby can suffer before sustaining brain damage.
49. It is the defendant's case that if Dr. Allen had taken the mother to theatre and called for Dr. Wilcox to attend, the result would have been the same. Once the bradycardia set in (with Dr. Allen applying traction to her forceps), Dr. Wilcox would have had to start from scratch, scrub up, prepare and then proceed, there being no reason why he should then have taken less than the 13 minutes which he in fact took.

MY CONCLUSIONS AS TO CAUSATION

50. In my judgment, Dr. Wilcox would have attended. He would probably have identified the correct position of the fetal head. He would have been in the position of conducting a trial of forceps in theatre. There is no reason to believe that he would have taken more than 10 minutes from the moment that bradycardia set in - accepting, as I do, that it would not have set in until 4 minutes had elapsed from the moment that the forceps were applied. Even if, which is most unlikely, Dr. Wilcox was unsuccessful in a Kjellands forceps delivery, the baby would have been delivered well within the ten minutes by caesarean section.
51. The defendant relied upon an answer by Dr. Wilcox as follows:

"If Dr. Allen had taken the baby to theatre for trial of forceps and I was present, I believe I would have been there in a supervisory capacity, not to do the delivery. I would imagine I would have allowed Dr. Allen to perform the delivery but I would have been there to assist in case of difficulties. If the bradycardia had started, I would not already have been scrubbed and would then have had to make my own preparations and do my own vaginal examination which I would not have done already. If the delivery process were the same, the timing would have been the same as it was in real life except for the 5 minutes it actually took me to attend the labour room. That is about 13 minutes".

This answer relied upon by the defendant seems to me to be a denial of what a true trial of forceps amounts to. A true trial of forceps, as I find, means that the trial of forceps is carried out in theatre with all relevant operators, whether registrar and/or senior registrar, being ready, scrubbed up, to perform their role, if or as and when they are needed. As I find, Dr. Wilcox having been summoned and having attended would most probably have examined the mother there and then and would then most probably have identified the correct position of the fetal head. He would then most probably have delivered the baby by Kjellands forceps. If there had then been any difficulty in achieving delivery, the baby would have been delivered, very swiftly, by caesarean section. I do not accept that Dr. Wilcox and Dr. Allen, in setting up a trial of forceps, would have so conducted the trial as to arrive at a position in which the baby would suffer more than 10 minutes bradycardia. As I find, from the moment of the application of the forceps there were available 13 minutes in which to deliver the baby unharmed and without any brain damage – the 4 minutes from application of the forceps to the onset of bradycardia plus the 9 minutes to arrive at the overall 13 minutes which it took Dr. Wilcox, in real life, to deliver the baby.

52. There was considerable discussion in evidence about the 10 minute rule. The 10 minute rule reflects conventional wisdom that it is possible for a fetus to survive without acquiring brain damage after ten minutes of bradycardia have elapsed. Professor Levene would extend the 10 minutes to 15 whereas Dr. Rennie for the defendant would keep it at 10 minutes as there was nothing in the case to take it outside the general rule, there being here a strong reason for going in the opposite direction because it was clear that the trace from about 00.35 onwards indicated a stressed fetus and therefore one whose reserves (and therefore ability to cope for the full 10 minutes) were depleted. As a result of my findings, it is not necessary to consider whether the 10 minute rule can be "extended" as explained by Professor Levene. I am entirely clear that all the probabilities show that if there had been a trial of forceps, as I have found there should have been, then the baby would have been delivered within (and I would say well within) the 10 minute rule. I therefore find that, if there had been a trial of forceps, the baby would have been delivered within 10 minutes of the application of the forceps. I find that as a result of the negligent failure to conduct a trial of forceps, the period of bradycardia which the claimant could have survived without permanent brain damage has been exceeded. There is no reason why, if there had been a trial of forceps, the baby should not have been delivered well within 10 minutes from the beginning of any bradycardia. Therefore, in my judgment, the Claimant (on the second part of causation) has established that his brain injury flowed from Dr. Allen's negligence.
53. I have not found it necessary to consider the position as at 00.30 or whether the position was affected by caput or moulding, assuming in the defendant's favour that it was not.
54. I find breach of duty and causation in favour of the claimant. I invite Counsel to draw up an appropriate order dealing with the question of costs and any directions as to the determination of any further matters in issue.