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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 March 2007

Mr Justice Mackay:

1. Jacob Antoniades was born at 1913 on the 18 April 2003 at Eastbourne District General Hospital. He was the first child of Karen Antoniades who was 35 years old. It was a vaginal birth and the labour was uneventful and relatively rapid. Up to the time of delivery his heart rate had been normal and the experts agree that he had suffered no ante-natal brain damage.
2. Jacob now suffers from cerebral palsy as a result of profound hypoxia causing hypoxic ischemia, suffered in the 20 or 30 minutes after his birth. The cause of that hypoxia was an obstruction of his trachea by a thick plug of mucus. It is common ground among the experts in this case that by 1930 he began to suffer irreversible brain damage due to the lack of oxygen to his brain. This action focuses, therefore, on the 17 minutes between his birth and the onset of brain damage. It is alleged that the attempts to resuscitate him in this window of time were not just unsuccessful, as plainly they were, but fell short of the standard of care owed to him.
3. I must start by stating the facts as I find them to be in relation to the events immediately following his birth and leading up to the onset of his injury.
4. Jacob was delivered in poor condition. He was described as bluish and floppy but with a heart rate over 100 and making some respiratory effort. By 1914 his Apgar score was given as 2. He was making some respiratory effort at this stage but it was "poor". A Paediatric SHO was called for and arrived in the form of Dr Norman at about 1917. He checked the airway by looking in the mouth which was clear. He listened to the lungs and in his witness statement said he could "not hear any air entry to either lung", even after suction of the mouth. Jacob was making what he described as "gasping respiratory effort" but was blue, limp and unresponsive with a heart rate of less than 60. There was, as the experts on both sides now agree, a cardiac collapse at about 1918 after which Jacob's heart rate was at all times below 100 until some time after oxygenation was eventually achieved at about 1943.
5. The second clinician to arrive was Dr Elmusa who arrived at about 1918. He was the on call Paediatric Registrar. He found Dr Norman and a midwife performing CPR. He assessed that there were difficulties in ventilating the baby so immediately intubated him with an appropriate 3.5mm endotracheal tube ("ETT1"). That produced no immediate improvement so he withdrew it and immediately inserted a further ETT ("ETT2"). This was a sensible action, since ETT1 might have been accidentally mal-positioned, which can be a common and non-negligent cause of obstructed ventilation. A crash call was put out at 1919.
6. There is an issue as to the condition of ETT1 upon its withdrawal. In his witness statement Dr Elmusa described it as "filled with secretions". He was plainly there describing the first and not the second tube. In his evidence, however, he said repeatedly that he was "not aware" that ETT1 was filled with secretions. He thinks that this description was of ETT2, which was, as will be seen, later withdrawn by Dr Debuse. Dr Elmusa's witness statement from which I have quoted was made in November 2005, at a time when the claimant's case was entirely different from that which was presented to me. At that stage the claimant was not alleging that his injuries were due to a blockage of the airways by an obstruction removed too late. The allegation was that the lungs were not inflating by reason of a tension pneumothorax negligently caused in the course of the resuscitation and not detected and promptly treated. Following the close of pleadings and the exchange of evidence it became clear to the claimant's advisors that his case was misdirected and by re-amendment the current claim emerged. All the original witness statements by the defendant's clinicians are addressing a different line of attack, although of course each clinician was under a clear obligation to give a true account of the entire history of the period. I am satisfied that the relevant sentence in paragraph 3 of Dr Elmusa's first witness statement represents the truth and that ETT1 was filled with secretions when he withdrew it. Given the nature of the claimant's current case it is now an embarrassment to him and he wishes to disown it. He was quite a senior Registrar, had been recently trained, and was a close friend as well as a colleague of Dr Ahmed. He realises he should have told other members of the team about ETT1. I am confirmed in this view by Nurse Penfold's evidence that she heard Drs Norman and Elmusa saying there were lots of secretions on withdrawing ETT1. Also if, as is common ground, ETT2 when withdrawn a few minutes later was also blocked with secretions, it seems highly unlikely that ETT1 had not been as well.
7. Crucially, I also find that Dr Elmusa told not one of the clinicians who were later to arrive on the scene that it had been the case that ETT1 was filled with secretions. I found him the least impressive of the clinicians who gave evidence before me. He had made no notes at all of this episode. He cut a fairly sorry figure as a witness, and in my judgment probably took a fairly low profile in the events that followed, despite the fact that he had been on two relevant training courses and had his own copy of the standard training work, the NLS manual, to which I will have to refer later. Before this event he had personally aspirated meconium obstructions by applying suction to the ETT, and had seen it done by others. It was not a particularly difficult process, he thought, and he felt quite capable of following it if there was evidence of "meconium or blood or anything, or secretions" blocking the airway. He did not mention his experience or knowledge to anyone else attending to Jacob. What he says about what he knew reflects standard neonatal resuscitation teaching, which he would have received at his courses, and which he had plainly taken on board.
8. Next to arrive was Dr Debuse. She was an Anaesthetic Registrar, very recently appointed to that post, but she had been an anaesthetist since August 2000. She had been on an adult advanced life support course and a paediatric advanced life support course, but had no neonatal training. She had never been in charge of or even taken part in a neonatal resuscitation by the time of this event. She did not know any of the other Doctors involved. I found her to be an intelligent and straightforward witness.
9. She arrived at about 1920 to find Jacob "floppy, making poor respiratory effort and with no evidence of ventilation" and saw Dr Elmusa who was probably in the final stages of installing ETT2. She introduced herself but was called away pretty well immediately for 1-2 minutes to attend to Jacob's mother who was bleeding in a side room. Having done that she returned to the corridor where Jacob was on the resuscitaire, still being attended to. He was no better. She took over the airway and she bag-ventilated Jacob but could see no chest movement. I am satisfied that as a competent Registrar as a result of her general resuscitation training she would have been looking closely to see whether the chest was moving in response to ventilation, and she saw none. She therefore checked the positioning of ETT2 with a laryngoscope and found it correctly sited. Doctor Norman was attending to Jacob's chest and giving compressions from time to time. He told her that the heart rate was less than 100. His evidence was that it had fallen to 60 prior to the crash call being put out, which was at 1919. As for Dr Elmusa he was attempting to pass an umbilical vein cannula at this time. Having handed over the airway to Dr Debuse he played no further part in attempts to establish an airway nor did he give any advice in relation to that task. He confined his actions to monitoring the IV lines and medication
10. Next to arrive was Dr Ahmed. He was the Paediatric Consultant. He had been involved in more than 150 neonatal intubations. Modern practice, I find, is for the paediatricians to "lead" on the resuscitations of neonates. He too checked ETT2 and was happy that it was properly placed. He left Dr Debuse in charge of Jacob's airway. I find he gave her no specific advice at any time nor any instruction as to how she was to do that; if he had she would have acted on it. Nor did he enquire about her experience or competence.
11. With ETT2 in position adrenaline was administered by the tube and a cycle of CPR delivered. At the end of that Dr Debuse found there was unsatisfactory ventilation and described the chest as "not moving well, with no breath sounds". As to chest movement, that again must have been the result of her own direct observations. This agrees with what Dr Norman records in his witness statement. Doctor Norman may have been the source of Dr Debuse's information at least as to breath sounds, for that was his task. In his witness statement he said he could not hear any air entry into either lung although Jacob was making some gasping respiratory effort. In evidence he said that his failure to hear any sounds may have been due to inexperience. I find there was little or no air entry at this stage or later, until after Dr Steer's intervention.
12. Moving forward to later events, by the time Doctor Steer the Consultant Anaesthetist arrived as the last of the clinicians to attend it was 1940 and 10 minutes of irreversible brain damage had been occurring. He listened for air entry in the lungs and heard only "faint wheezes on each side equal in volume" which he described as entirely inadequate. He said in his witness statement that at least some oxygen was getting past the obstruction, but in evidence he explained that this was plainly inadequate for any function or "as good as nothing". The blood gases at 1932 showed the same picture. I find as a matter of probability that these were arterial blood gases (all the records show this, including Doctor Debuse's note) and the extremely abnormal levels confirm me in the following finding of fact. From 1918 through to 1940, though Jacob was making some respiratory effort, and was not therefore anoxic, he was profoundly hypoxic and his respiratory efforts, such as they were, were insufficient to oxygenate his blood; the reason for that was an almost total obstruction of the lower part of his airway throughout this 22 minute period.
13. To return to the narrative, there is an issue as to when Dr Ahmed arrived. At a time before this issue was as relevant as it now is, in his original statement he said he would have arrived about 2 minutes after receiving the crash call. This would have gone out to him and to Mr Rochester and Dr Steer after the first group of clinicians had been notified. Though in evidence Dr Ahmed sought to suggest that his arrival was more delayed than this I find as a fact that he was with Jacob by 1922. He appreciated that those already there were "struggling with ventilation", and he personally checked that the tube was properly sited. He suctioned the oropharynx which had "tacky, sticky secretions" in it. The purpose of this was to suction round the ET tube where it entered the trachea to visualise it. He described the breath sounds as "present but poor, not optimal". I regard this as an understatement of the problem at the time. Later he described the air entry as present but inadequate which is in my judgment a better description. Though he accepted that it was imperative to establish an airway – the A of the A-B-C-D resuscitation algorithm - the sequence of manoeuvres that he tried was designed to overcome this obstruction, but he said he also had to think of "other potential things" as he put it. There could have been an anatomical abnormality below the level of the trachea. There could have been a pneumothorax and the lungs could have been stiff as a result of a congenital anomaly. He soon eliminated pneumothorax because such chest sounds as there were were equal on both sides.
14. Dr Ahmed assumed control of the operation on his arrival and, as I have said, left Dr Debuse in charge of the airway. He instructed Dr Elmusa to get the intravenous line in and Dr Norman to do cardiac massage and he gave instructions for the relevant drugs and for blood. He too made no later note of these events, although he must have known after the crisis had passed that the likely outcome was that Jacob had suffered significant brain damage at least, as Mrs Antoniades was told.
15. At some stage ETT2 was removed and a third tube ETT3 was inserted. There is an issue as to when this happened. There is a more important issue as to when any suction of the trachea (as opposed to the oropharynx) first took place. It was Dr Debuse's evidence, which I accept, that it was she who decided to remove ETT2 and replace it. When she removed it it was "completely blocked with thick clear secretions". In evidence she called them "thick, not like water". She therefore inserted ETT3, hoping to find that the mere insertion of a clear tube had solved the problem, and she was surprised when it did not. She therefore asked for suction catheters from the midwife who was in attendance and was given two. She then proceeded to suction the trachea through ETT3 three times with narrow bore catheters inserted through the wider diameter of ETT3. This is a procedure which I will call narrow bore suctioning or NBS. Each time she correctly suctioned for a short period, withdrew the catheter, reconnected the bag and attempted to ventilate. Meeting with no success she repeated the procedure. Minor amounts of matter were visible on the withdrawn catheters. She was clear that this had taken place on ETT3 not ETT2.
16. Dr Ahmed for his part said in evidence that NBS was carried out through ETT2 and through ETT3. He said it was done 3 or 4 times through each tube, resuming attempts at ventilation between each suctioning. Paragraph 10 of his original witness statement is ambiguous in this context. It read "The main problem we experienced was one of inadequate ventilation. The oral cavity was filled with tacky sticky secretions which we frequently suctioned out. The ETT was also suctioned out. As such, a third tube was inserted and ventilation continued". It is not possible to resolve this issue completely by reference to that witness statement alone, which is obscure in its meaning, although "as such" suggests that the purpose of inserting ETT3 was to provide a vehicle for achieving NBS. However I prefer the evidence of Dr Debuse on this point. I find that she in fact decided (without any advice from Dr Ahmed who was busying himself on other things) to use ETT2 as the airway for a cycle of CPR (i.e. ventilation alternating with chest compression provided by Dr Norman), having satisfied herself that it was in the right place; that cycle took about 3 minutes or so and was unsuccessful. Thereafter on her own initiative she with drew ETT2 and noticed the blockage; this would be the first time that she or anyone other than Dr Elmusa had noticed a blockage, as he had kept what he saw on ETT1 to himself. She then decided, acting logically, to replace ETT2 with ETT3 and carried out the first cycle of NBS through ETT3. I am satisfied that she did this of her own initiative and without any input from Dr Ahmed, who had simply delegated to her the whole task of establishing a patent airway without any advice or instruction of any specific kind. His attention was directed elsewhere. He said "I looked after the rest [other than airway management and ventilation] with my paediatric colleagues, which included venous access, appropriate drug and fluid administration and overall clinical assessment". This I find is what he was doing between 1925 and 1935.
17. The insertion of ETT3 probably took place at about 1925 and the suctioning process through it took up the next 2 minutes. He paid no particular attention to the fruits of the NBS, such as they were. When it was over at 1927 time was fast running out. Dr Debuse had run out of stratagems, because of her lack of training and experience and probably carried on bagging, but in her own words she had reached the point where she needed further help. Had Dr Elmusa mentioned the knowledge that he had about direct suction on the ETT she would certainly have done it, and so probably would Dr Ahmed. Had she or anyone else decided to use direct suction on ETT3 at that stage there was time to do so and the probability is that the blockage would have been cleared before 1930. I find that 1927 or 1928 is the latest time at which a reasonably competent paediatrician, conscious that the clock was running down, with full knowledge of events up to that point would have decided to do what Dr Steer eventually did at 1943.
18. The next person to arrive on the scene was Mr Rochester; an operating department assistant designated a "Resuscitation Officer". He is not medically qualified but is expert in the techniques of resuscitation which he both practices and teaches. He was called from home and arrived at the scene at about 1932 or 1933. It is highly significant that he was not told at the outset that the problem throughout had been getting an open airway. This, I find, was because the team, or at least its leader Dr Ahmed, had lost the necessary focus on the A of the A-B-C-D of resuscitation, and he had allowed himself to be distracted from the obvious fact that they had failed to pass point A. As to Mr Rochester, he accepted that that meant vital information had not been given to him. He therefore initially concluded that "there wasn't a problem with the airway". He proceeded systematically to ask the team about other aspects of the baby's position.
19. He asked about the perinatal history; he asked if the ETT was OK (in the sense of correctly sited) and was told that it was; he asked if adrenaline had been delivered and was told it had; he asked for a blood gas reading and as he put it in his witness statement "methodically ran through the resuscitation procedures"; he asked for and was given the weight of the child; he asked for an ECG to obtain a heart rate – the first machine did not work so he obtained a second machine.
20. At some stage which is not clear, but which was probably more than 5 minutes after his arrival, he did come to appreciate there were real problems with ventilation. He therefore volunteered the suggestion that by overriding the "pop-off" valve on the ventilator higher inflation pressures should be administered by the ETT. This was because Dr Ahmed said to him words to the effect "we need to improve ventilation". In the circumstances this was a permissible and reasonable action to take, if the clinicians felt that the problem was the anomaly known as "stiff lungs".
21. He had been told that there had been some suctioning down the ETT and that secretions might be a problem, but plainly he was under the impression that there was some ventilation taking place which was "not complete" as he put it in evidence. That belief derived from information from the clinicians on whose views he was dependant. There were a lot of bodies around this resuscitaire, and anyway he was not medically qualified. If, he said, he had been told from the outset that there was a problem with the airway and there was a complete obstruction he would have addressed that without paying any attention to CPR. He had asked at some stage Dr Norman about ventilation and "someone" had answered as he turned away "Yes, we have breath sounds". That cannot have been Dr Norman, because he did not believe he had heard any, and it is most improbable that it was Dr Debuse. Given Dr Elmusa's low profile the most likely person to have said that, as I find, was Dr Ahmed. Therefore at the time of that remark he was happy that Jacob was being ventilated. This in my judgment explains Mr Rochester's concentration on the list of other matters I have set out above. He struck me as a competent expert in this field. An open airway is the first step in any resuscitation attempt. Had he believed that there was not a clear and patent airway he would have focused his attention on that as he knew full well that it was the priority task.
22. Finally Dr Steer the Consultant Anaesthetist arrived from home at 1940. He found a position which he described as "absolutely critical" and he thought it would be a matter of minutes or even seconds before Jacob would be lost. He was told that there had been "several" ETT's deployed and that NBS had been tried "several times". As I have already said he found that oxygenation was plainly inadequate for any function, though he did try NBS himself briefly through a new tube ETT4, simply to check whether or not what he had been told was right. He then decided to apply direct suctioning via ETT4 itself while withdrawing the tube. This technique I will call ETTS. He had performed this manoeuvre previously in the case of an adult patient in surgery with sticky infected secretions in his lungs but otherwise he had never used it. So it was a last resort and they had a minute or so to do anything. He withdrew ETT4 while maintaining suction on it and stuck to the end of the tube upon withdrawal was a clear oval bead of mucus of the consistency of "Uhu" glue, which he described as viscid and too tacky to pass through the tube. He had never seen such a thing before.
23. The result was an immediate improvement in Jacob's condition. Good ventilation was achieved and his colour turned from grey/ black to pink. CPR was continued and the heart rate improved. In due course Jacob became fit to be transferred to the Special Care Baby Unit. His life had been saved but he has severe and permanent damage as a result of the hypoxic ischaemia he suffered between 1913 and 1943 that night.
24. Based on those findings, it is my task to decide whether there was any breach of the duty of care owed to him by any of the clinicians which caused him to be in that condition.

MATTERS ON WHICH THE EXPERTS AGREE

25. The experts agree that there was no ante-natal brain damage and that hypoxic ischaemia began at about 1918 with the cardiac collapse. That damage did not become irreversible until 1930. They agree that the reason was that there was an obstruction of the airway leading to no useful lung inflation, and that drugs and CPR (in the sense of chest compression) have no benefit to bring without a clear airway and chest expansion. They agree that a mucus plug is a very rare event in a neonatal resuscitation as a cause of obstruction; only one expert had encountered it (Professor Weindling). By contrast obstruction by meconium or blood is "not particularly rare" in this setting. They agree that ETTS is a recognised and standard procedure for meconium obstruction where meconium is recognised to be obstructing the airway. The technique of ETTS itself is agreed not to be difficult. The difficulty lies in recognising the situation which calls for it. The key to successful resuscitation is agreed to be identifying a leader of the team which nowadays is almost always a Paediatrician.
26. By the end of the evidence it was common ground that the Newborn Life Support Course of the Resuscitation Council (UK) ("the NLS"), produced by Dr Platt for the claimant, represented a statement of the standard practice for the resuscitation of neonates following birth, and contained standard information given to all health care professionals in this field. It would be taught to all, from nurses to Professors alike (Professor Weindling had been on it in the last 18 months). Dr Elmusa had a copy of the NLS manual issued to him for his course. Dr Ahmed had not been on the NLS, but had been on the Paediatric advanced course which included a neonatal component.
27. The most relevant passage in the 60 – odd page manual, under the main heading of "Meconium Aspiration", read as follows:-

"Removing meconium or other material

Material thick enough to cause airway obstruction cannot be sucked up any catheter small enough to be passed down inside a tracheal tube. If possible the whole tracheal tube should be used as a suction device as illustrated in [a figure]……

It is important to realise that a baby can be born with impacted debris in the trachea even when there has been no passage of meconium before birth. Inhaled vernix [fetal skin debris] can be potentially lethal. Clotted blood and viscid nasopharangeal secretions can also impact in the larynx or trachea".

MATTERS IN ISSUE BETWEEN THE EXPERTS

28. Dr Rennie, a leading and distinguished Paediatrician and Neonatologist, and now sole editor of the standard textbook on the subject (which does not in its chapter on resuscitation deal with Dr Steer's manoeuvre), is of the view that as at about 1922 a reasonably competent paediatrician, in the light of the picture which must have presented itself, as evidenced by the gases taken at 1932, showing profound hypoxia, should have recognised that there was a baby with a low heart rate, floppy and failing to respond to intubation and ventilation. The problem that presented itself was therefore the A of the A-B-C rule of resuscitation. Every effort should have been concentrated on the airway, and the team leader should have taken that task over himself. She would not criticise the initial use of NBS, perhaps for 2 cycles or maybe 3 at the most, quickly administered each taking 20 – 30 seconds. If that failed then there should have been a resort to ETTS. She conceded that if there had been a "reasonable result" from NBS via ETT2 it would have been reasonable to reintubate and try NBS again through ETT3 before applying ETTS to ETT3. But in my judgment in no way could the results of Dr Debuse's efforts at NBS be called anything other than minimal.
29. In her opinion what Dr Steer eventually did was not anything that a competent paediatrician could not or should not have known how to do. The technique is regularly used for other forms of blockage of the airway in neonates, particularly meconium, a thick and viscid substance which sometimes does require ETTS to clear it. At about 2 minutes after re-intubation without response to ventilation he should have realised he was in trouble. That realisation would have been heightened if he had been told that not one but two previous ETT tubes had been blocked by secretions. The problem was a basic one of achieving a patent airway. What was required was only a basic technical skill. Aspiration of thick substances from the airway in the form of meconium is a regular necessity with neonates; with older babies under 12 months it was "not unusual" for a paediatrician to have to aspirate thick mucus secretions. The only unusual feature here was that this was a neonate, within minutes of birth. While therefore a degree of lateral thinking was required to apply ETTS in this situation that should have been done by a reasonably competent paediatrician faced with this problem.
30. Her cross-examination focused on her change of opinion over the course of this litigation. She accepted that it had changed, and radically. Her original view was that the failure of resuscitation was due to a tension pneumothorax, not a blockage of the trachea, these being mutually exclusive theories. The point of this questioning was to show that if she, given time and leisure, and with her much greater knowledge, could not see what had happened, how was it reasonable to criticise those on the ground for their failures given the pressure of time and stress of the heat of battle under which they were operating?
31. She answered by saying that the notes with which she was originally supplied were scanty and uninformative; the defence experts also accepted they were not good. The two junior clinicians made notes and the paediatricians did not. Those she had seen mentioned secretions in the upper airway and did not deal with the time sequence, number of intubations, or attempts at suction. It is true that Dr Rafferty at a meeting with the parents on 9^th June had mentioned a blockage with a mucus plug, but this was of course secondary evidence, and he was not there. It was not until she saw the witness statements of the clinicians, plus Dr Steer's crucial note (made in his personal diary not a clinical note) that she saw clearly what had happened. Those on the ground, by contrast, were there and knew what had happened. Though the point was properly raised by Mr de Navarro QC for the defence and skilfully explored it did not in the end hit the mark, in my judgment.
32. Dr Miles is a retired Senior Paediatrician who had spent half his time on Neonatology and for 23 years had been a Consultant in a District General Hospital similar to that in this case. His view was that after the second tube had produced no ventilation the "overwhelming probability" was that the either the tube was blocked or there was an obstruction below the tube. He said there was nothing magical about sucking up an obstruction through a wide bore tube. Tacky or sticky secretions in the mouth would have put any paediatrician on a heightened level of awareness. The timeline was critical and he should be more keen to get on with direct suction if nothing was coming out as a result of NBS. The answer was to use a wider tube as one does when suctioning the oropharynx. He regarded 8 minutes as a very long time to establish an airway, given the training these practitioners would have in resuscitative techniques. On the performance of that night his view was they would fail the Resuscitation Council's NLS Course, because they ignored the cardinal rule of giving priority to the A of A-B-C.
33. As to realisation of the problem, even without the benefit of hindsight the clinicians must have realised there was a blockage of the airway. 99% of such cases are either due to a misplaced tube or a blockage. Other causes of an anatomical nature are very rare, and, though they may be "potential starters" in terms of differential diagnosis, the correct procedure here is to look at what was remediable. There was nothing to be done if the problem was an anatomical defect. The NLS course and good practice makes clear that you should not move on to the next stage of A-B-C, as this team appears to have done, before getting the basic foothold of a clear airway.
34. Professor Weindling for the defendants a highly expert Consultant Neonatologist at one of the largest hospitals of its kind in the country, and a Professor of perinatal medicine, said in his report that the cause of this respiratory failure was unusual and that staff below the grade of Consultant Anaesthetist "cannot be reasonably criticised for not recognising it". What Dr Steer did was exactly the right thing, but he does not criticise the other clinicians for not adopting that technique.
35. In his report he said that the skills displayed by the team were appropriate and that "the documentation on the resuscitation and its conduct was exemplary" In evidence, having listened to the other evidence given up to that point in the case, he was more circumspect; he said he was not sure about the documentation but that he thought that the resuscitation was "reasonable from the paediatric point of view". He described Dr Steer's manoeuvre as an extraordinary but appropriate technique and a "stroke of genius" on his part. An obstruction at this age other than for meconium, blood or vernix is most unusual; the team could not be blamed for thinking of other alternatives. He did not get the impression that the airway had been abandoned. They had established that the tube was in the right place. There could have been a narrowing of the airway itself. The decision to override the pop-off valve was reasonable, because he thought it was aimed at putting more air into the lungs and thus inflating them, something which they might have been unable to do if they were small or "stiff" lungs. He was not critical of other members of the team attending to chest compression and IV access while the airway was being established. It was quite important to do and continue compression if the heart rate had fallen below 60 or 80. There would have been as he put it "a bit of oxygen getting into the blood".
36. He thought that to replace the tube would be the work of 20 -30 seconds, one minute at most. The process of NBS would take 20 – 30 seconds for each cycle. He would do it a couple of times then replace the tube if there was nothing coming up. Then he would do it again with a new tube. Then as he put it the next step "may be to apply direct suction". Some may, others may not, he said. He gave an account of his own experience as a Consultant in the 1980's when he applied direct suction to an ETT (for technical reasons he had to do it by mouth) and extracted a blob of bloody mucus leading to recovery. He was the only one of the experts with any experience like this.
37. He was a careful and thoughtful witness, but it became increasingly clear to me that he was having fundamental trouble with the proposition that the paediatric team had ever realised there was an obstruction of the airway, at any stage before Dr Steer removed it. Their witness statements (in which they say they did, and from an early stage) he discounted entirely as written in the light of hindsight. He could not see how they could have known of it before it was revealed. As he put it although obstruction was "on the cards" he thinks they thought they had done enough by their [narrow bore] suction.
38. With all respect to him I cannot see how that view survives the evidence, particularly that of Dr Debuse, and my findings of the minimal return from NBS. The only point of NBS is to clear an obstruction, albeit a non-sticky one. She never thought she had solved the problem which everyone else had identified. No improvement followed the end of her NBS cycle, and for the next 10-12 minutes she valiantly bagged away at a white, cold baby with no signs of success. The team certainly did not know what the nature of the obstruction was, I find, but I am satisfied that they knew there was an obstruction, certainly by 1922 or thereabouts.
39. Professor Weindling accepted that the differential diagnoses could readily be eliminated - misplaced ETT, oropharyngeal obstruction, tension pneumothorax (the work of seconds to remedy said Dr Ogilvie), and stiff lungs (not mentioned in Dr Ahmed's witness statements, and not discussed, if it was ever discussed, till Mr Rochester made his suggestion about the pop-off valve at about 1935). One would have to ignore anatomical anomaly, he accepted, therefore all that was left was some material blocking the airway.
40. Though he also accepted that all resuscitation teaching drove home the A-B-C algorithm, in the alternative he defended the team's actions in attending to B and C (indeed he could have added D – drugs) even if they knew A had not been established. Dr Ogilvie also was of this view, saying that even though it was not logical, when at most what would be achieved was some circulation of non oxygenated blood, "few practitioners" would not do so, and that it would be "very difficult" not to start on C even when A was not completed, although he conceded it would be pointless to do so.
41. I have to say this was illogical and unimpressive evidence in my judgment, and both Professor Weindling and Dr Ogilvie were increasingly uncomfortable when tested on it under cross examination. It amounts to saying this, that though what the team did was plainly contrary to established "as taught" practice, and was illogical and useless in physiological terms, most or many other doctors would do the same in an emergency. Given the concessions about the NLS and standard practice I cannot accept this proposition. Of course I must guard against investing a short passage in the manual with too much significance and the course as taught no doubt concentrated predominantly on more commonly encountered problems than this. But the passage from the NLS cited above is no more than a statement of a simple and logical technique. It was commonly used for the commonest form of obstruction, meconium, and it is not unreasonable to expect competent paediatricians to apply it to other apparent obstructions of whatever kind. Significantly that message had got home to Dr Elmusa from the course he had been on and/or his reading of the manual, and he could certainly not be described as possessing skill or professional inquisitiveness above those of the reasonably competent paediatric registrar in a District General Hospital at this time. Dr Ogilvie accepted in any event that you did not need to look at the NLS manual to know that a larger tube was the way to remove particulate matter from the airway.
42. I prefer the evidence of Drs Rennie and Miles, that to have carried on with CPR and drugs in this case was at best useless and at worst a distraction for the team member with the vital job of A. This distraction was not probably causative of any extra damage, but it is important in this sense. It shows that Dr Ahmed, who had originally known from his first arrival that there was an airway which was not permitting ventilation, had allowed himself to lose his focus on that vital fact and be drawn into irrelevant and useless activity around B, C and D It is of a piece with his failure even to mention airway problems to Mr Rochester for 5 minutes or so after his arrival.
43. I have reached these findings with reluctance, given that I make them after a long and detailed investigation of events which took, in reality, only minutes within which the right decisions had to be made (12 for Dr Elmusa, 8 for Dr Ahmed). Mr de Navarro is right to warn me of the benefit of hindsight, in the light of which we are all wise, and to make due allowances for what he rightly called the "heat of battle" in which these doctors found themselves. But it seems to me clear that it is precisely because of that heat, which would cause any untrained person to panic helplessly and fail, that health professionals are trained in the simple and emphatic routine sequence of A-B-C-D, and the techniques available at each of these stages. Judged by the appropriate standards of a trained paediatrician I accept Dr Miles' view that 8 minutes is in fact quite a long time within which to establish a patent airway.
44. Mr de Navarro in argument described as "inconceivable" the proposition that if Dr Elmusa had thought of ETTS, of which he was aware as a technique, as the answer to the airway problem they faced that he would not have told his friend and colleague Dr Ahmed about it. In a sense I agree, save to say that as I find he did know about it, he did not mention it, that he ought reasonably to have done so, and there was time for it to have been applied successfully before the clock moved to 1930, I fear the right adjective is negligent.
45. He also described as a red herring the failure to tell Mr Rochester before 1935, as I have found, that there was a problem with the airway. This failure is relevant to the extent I have set out at paragraph 42 above in the sense that it throws light on Dr Ahmed's thinking before 1930. But I agree that if it was negligent it came too late to be causative of any damage.
46. Mr de Navarro also stresses the rare, all but unprecedented nature of the obstruction found in this case. He is right to do so. But the point is that obstruction as such, whatever its cause, was the only conclusion left to the paediatricians, once the other causes were eliminated as I find they were 1922, or at the very latest by the start of Dr Debuse's cycle of NBS at 1925. It was the fact of obstruction which should at least by then have been obvious, even if the nature of the obstructing agent was not.

CONCLUSIONS

42 Dr Debuse exercised all the skill and care appropriate to one in her position as a junior anaesthetic registrar without any experience of neonatal resuscitation. She applied all the techniques known to her competently and in due time. She was not given by either of the paediatricians the support and advice to which she was entitled and which she needed. No allegations are made against Dr Norman, nor Mr Rochester who in any case was on the scene too late for his actions to have had any causative impact.

43 Dr Elmusa was in breach of the duty of care he owed as a paediatric registrar in two respects, namely failing to report the blockage in ETT1 and failing to advise either Dr Debuse or Dr Ahmed, once NBS had failed to establish a patent airway, of the technique of ETTS about which he knew and had been taught. The first of these failures contributed to a lack of understanding in other team members as to the nature and extent of the airway problem. The second was more serious, and deprived the other relevant team members of the chance to apply a technique which there was time to apply and which would have saved Jacob from suffering any irreversible brain damage.

44 Dr Ahmed was in breach of the duty of care owed by a reasonably competent and careful paediatric consultant in the circumstances in which he found himself, in the respects pleaded at 25.8 – 11 ... save for 25.11 (d) ) of the Re-amended Particulars of Claim, and any allegation relating to any act or omission later than 1930). Those breaches were a significant cause of Jacob's brain damage; indeed had he not been in breach in these respects but acted as he should have before 1930 by administering ETTS or causing it to be administered, Jacob would have survived the experience of his birth neurologically intact.

45 There must therefore be judgment for the claimant in this case on the issue of liability for damages to be assessed.