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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Nottingham District Registry

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2011

MR JUSTICE WIKIE:

1. On 5 April 2011 I handed down a Judgment on liability in this matter as far as I was able given the evidence and argument presented in that hearing. At paragraph 222 I concluded that the Defendant was in breach of duty by failing, on 1^st November 2002, to decide to admit Mrs Sherwood to hospital on Sunday 3^rd November so as to proceed first thing on Monday morning with a planned controlled delivery involving a consultant, either by induction followed, if need be, by a semi elective caesarean section or by an elective caesarean section.
2. Before deciding finally on liability, I required further evidence and argument on causation - whether the outcome would have been different in the event such a course had been adopted.
3. I have on 16^th and 17^th November 2011 received such further evidence and argument which I summarise below:

Further Evidence of Fact

Michelle Sherwood Second Statement:

4. She said that the final entry on her fetal movement chart was at 4:00pm on Sunday 3 November. She started feeling tightenings which she assumed were contractions during the 3^rd November which were erratic and followed no particular pattern. They were uncomfortable rather than painful. She told her husband before they went to bed at around 10.00 or 11.00 pm. She had a slightly disturbed night because of general discomfort. By Monday morning her contractions had become more regular and painful, by 11.00 am they were coming about every 5 minutes. She rang the hospital but was told to stay at home whilst the pain was bearable. During late morning and early afternoon they became noticeably more painful and slightly more regular. By 3.00 pm the pain was such that she rang the hospital again following which she was admitted.
5. In relation to the first major deceleration which occurred at 17.11pm her recollection was that she was sitting up rather than being in a supine position.

Mary Brocklehurst

6. Is and was employed by the Trust as a midwife. She made a telephone attendance note at 11.00 am on 4^th November in relation to Michelle Sherwood, whose expected date of delivery was 27^th October. She records Mrs Sherwood reporting that she was having moderate contractions every 5 minutes and that fetal movement had reduced earlier but that the baby was moving normally now. She gave advice that Mrs Sherwood should come in when she felt that she needed pain relief or was no longer tolerating her diet.

Mrs Curtis

7. The coordinating midwife on 4^th November, she recollected speaking to Mrs Sherwood at 3.00 pm on 4^th November and advised her to come into hospital. She had not made any note on the telephone record sheet that fetal movements were absent or reduced. Mrs Curtis did not make a telephone note of her conversation with Mrs Sherwood.
8. As for Mrs Sherwood's recollection of sitting up when first deceleration occurred at 17.11, she agreed that, for a vaginal examination, sometimes women are asked to recline to a slightly lower position, semi recumbent rather than fully supine, and that was Mrs Sherwood's position when Mrs Curtis conducted the vaginal examination at 17.00. Following the examination Mrs Sherwood was encouraged to sit back up a bit, but would still be in a slightly reclined sitting position. The CTG monitor would be clearly visible to Mrs Sherwood.
9. The fetal heart rate did not drop during the vaginal examination but did so at 17:11, after the examination had been completed and Mrs Sherwood was sitting up more. Such a delayed response is common. The altered physiology as a result of supine hypotension does not always lead to an immediate response in the fetal heart but can be seen within minutes. She agrees that Mrs Sherwood would have been "more sat up" when the deceleration occurred than she was during the examination.
10. She confirmed that she turned Mrs Sherwood onto her left side to respond to the fetal deceleration and she remained in that position until she was moved to theatre.

Dr Jane Rutherford

11. Dr Rutherford is currently a consultant obstetrician at Nottingham University Hospitals NHS Trust. She has held that position since 1^st January 2004 having joined the Trust as locum consultant on 2^nd February 2003. Prior to that she was employed by the defendant as a specialist registrar in obstetrics and gynaecology. She was serving her 3 months notice period on the 4^th November 2002.
12. She was on duty on 4^th November between 8:00 and 17:00 hours. She was involved in an emergency caesarean section in theatre. The patient arrived at 9.15, the operation started at 9:40, delivery occurred at 9:50 and the operation concluded at 10:45. She also had an elective caesarean section where the operation started at 11:20, the baby was delivered at 11:58 and the operation concluded at 12:30.
13. On admission at 16:00 hours Mrs Sherwood had reported a history of irregular contractions all night. It was likely that this history would have been reported overnight or in the morning of the 4^th November had she been admitted on the evening of the 3^rd November.
14. Under the local induction of labour protocol which was effective at the time, Mrs Sherwood would have fallen within list B because of her medical conditions. She would not have been induced on Sunday evening but would have been reviewed on Monday morning at 8:00 am when she would have reported the history of irregular contractions overnight. She would have had a CTG performed by a midwife and her contractions would have been assessed. She would have expected the CTG to have been started around 8:15 am. She normally met the consultant Mr Pickles at around 9:00 am to review each patient and decide which he needed to see (the board round). Mrs Sherwood would have been seen on the ward round which began at 9:10. It was likely that a midwife would have reported Mrs Sherwood's tightening and she would have asked the midwives to perform a vaginal examination to assess her cervix which would probably have been done around 9:30 – 10:00 am.
15. In view of the history of irregular contractions, she would have been reluctant immediately to start induction, which is contra indicated if a woman is entering labour spontaneously, Usually observation for a number of hours would enable one to decide how strong the contractions are and, therefore, whether she was entering labour spontaneously.
16. She would have expected the vaginal assessment to have been performed by 10:00 am and it would have shown the cervix to be unfavourable. They would have continued the CTG to see whether she was contracting and, if so, the frequency of the contractions. They would review the CTG, no more than an hour later at 11:00 am. If she did not appear to be in labour there would be a further vaginal examination an hour after that.
17. Dr Rutherford would have had a chance to review Mrs Sherwood between 10:45 – 11:15 am. The cervix would have remained unfavourable. She would have kept the CTG running, with a further review and vaginal assessment two hours after the first one, that is to say at around 11:30 – 12:00. A two hour review is sufficient time to see if there is any significant change and is in accordance with her usual practice so as to enable her to determine with confidence whether she was in effective labour.
18. After her first review at around 10:45 – 11:15 she would have consulted Mr Pickles to discuss her plan.
19. Between 11:30 and 12:00 the midwife would have conducted another vaginal examination which would have been unfavourable. Having had that reported to her she would have concluded that Mrs Sherwood was not in labour and that it was appropriate to begin induction. That would have been decided round about 12:30, given Dr Rutherford's involvement in other cases.
20. Under the protocol, once the initial insertion of Prostin had occurred, the CTG would have continued for two hours and she would have been further reviewed at 6 hours, that is to say, between 18:30 and 19:00 hours.
21. Given that Mrs Sherwood, in fact, reported contractions becoming more painful at 16:00 hours it was likely that a similar pattern would have occurred after the insertion of Prostin at around 12:30 and it was likely there would have been a review at around 16:00 hours by the midwife, as actually happened. It is likely that what happened thereafter would have been the same as what actually happened.
22. Dr Rutherford made a further statement addressing certain matters raised by Mr Forbes in his report. She did not agree with Mr Forbes' suggestion that they should have been aiming for delivery well before the end of the working day (17:00 hours). That seemed an arbitrary and artificial cut off point. Many women induced, using prostaglandins, may not deliver until 12, 18 or even 24 hours, thus there was a significant likelihood that delivery would not be achieved by 17:00 hours. Whilst there was a staff handover at 17:00 hours the medical staff present on the labour ward on duty would remain the same, in the sense that she would hand over to another specialist registrar who would be on the ward. As for the consultant, whilst he would be within the hospital during the day, thereafter he would be on call at home.

Mr Clive Pickles

23. He made a supplementary witness statement having read Dr Rutherford's likely history for the 4^th November, with which he agreed. He would have expected Dr Rutherford to have managed the process without further input from him after the initial consultation in the morning at 9:00am and up dating him at around 10:45 – 11:15 about her plan, with which he would have been content.

Expert Evidence

Mr Forbes for the Claimant

24. His second supplemental report was posited on the basis that Mrs Sherwood was still reporting fetal movement as late as 11:00 am on 4^th November and had regard to the further witness statements to which I have referred.
25. His conclusions can be summarised as follows.
26. Following her admission on the evening of 3^rd November some, but not all, reasonable obstetricians would have decided to conduct an elective caesarean on the morning of the 4^th November as a result of her clinical history. A CTG on admission would have been normal. It would have been discontinued with a plan for induction in the morning of the 4^th. By the morning of the 4^th the fetal movement would have been reduced. The pre-induction CTG would have shown fewer accelerations than previously. If that continued, there would have been sporadic decelerations due to intermittent cord compression with oligohydramnios, which would have led to caesarean section rather than induction.
27. If not, there would have been two possible approaches to management. First, Prostin might be withheld in light of the uterine activity. In that case, in view of the lack of change in the cervix between the 3^rd November and the morning of the 4^th, despite contractions overnight, there would have been no logical alternative to a caesarean section that morning.
28. Alternatively, Prostin would have been administered at 8:30 am on 4^th November, contractions stronger than Mrs Sherwood in fact felt would have ensued. These would have led to a pattern of increasingly significant variable decelerations in which case:

i) a caesarean section would have been performed because of a pathological CTG in non-established labour, or,

ii) An artificial rupture of the membranes (ARM) would have been attempted; if impossible, a caesarean section would have been performed. Alternatively, if successful it would have revealed thick meconium or an absence of liquor and a caesarean section would have been performed in the afternoon of the 4^th November.

29. There is no reason to believe there would have been prolonged decelerations akin to those seen at 17:11 and 17:38. The baby would have been delivered before then. Should there have been such decelerations earlier then the response would have been more urgent and proactive. Ellie would have been delivered more than 10 minutes more quickly than occurred in the event. There was, therefore, no reasonable sequence of events and of treatment which would have led to a delivery being delayed until damage occurred.
30. Mr Forbes agreed that Mrs Sherwood would be under list B. Under the protocol it would not have been appropriate to give her Prostin on the evening of the 3^rd.
31. He proposed a management plan which would have included delivery to be achieved at the latest during normal working hours on 4^th November if at all possible.
32. Mr Forbes commented on the factual evidence from which he drew the following:

a) Mrs Sherwood's fetal movement chart shows she did not feel her 10^th movement of the day until 4:00pm on 3^rd November; movements reduced at some point between the 3^rd and 4^th November but were described as normal at 11:00 am on the 4^th.

b) She started feeling irregular contractions overnight, but once every 5 minutes on the morning of the 4^th causing her to telephone at 11:00 am. Those contractions continued and by 17:00 hours were shorter and not as strong.

c) The base fetal heart rate was 150 on the 1^st November.

d) The cervix was unchanged between the 1^st November and 4^th November.

e) The only deliveries by medical staff during that day were an emergency caesarean section between 9:40 and 10:45 and a planned elective caesarean section at 11:55.

33. The mechanism of cord compression, which was the cause of the prolonged bradycardia, could have occurred in a number of ways.

a) Nuchal cord (cord around the neck): There is no evidence that there was any such and this mechanism is not regarded as relevant.

b) Other cord entanglement around the fetus: would tend to produce decelerations in the fetal heart rate when the baby moved but there was no record that this was the case.

c) Cord prolapse: the evidence is inconsistent with this.

d) Cord lying between the fetus and the uterine wall but not entangled: does not usually affect the circulation through the cord when the uterus is relaxed and when there is adequate fluid around the baby, however, when there is no fluid to cushion, two things can cause cord compression:

(i) Uterine contractions which, in the absence of fluid, can cause direct pressure on the cord causing a deceleration in the FHR as a chemical reflex;

(ii) Physical compression by gravity due to the weight of the fetus pressing on a segment of cord which lies beneath the fetus in the posture adopted by the mother at the time. This may cause a deceleration of the FHR which may persist until relieved by altering the maternal posture.

Mr Forbes believes that this was the most likely mechanism consistent with Mrs Sherwood being in a sitting up position when it occurred at 17:11 and then slowly recovering when she was told to lie down on her left side.

34. Mr Forbes poses the question whether Prostin would have been administered first thing on the 4^th November in the light of Dr Rutherford's suggestion that it would have been withheld in light of the uterine activity. Mr Forbes agrees that it is not possible to be dogmatic about this position one way or the other. Concern about the possibility of hyper stimulation of the uterus, if Prostins are given whilst the uterus is contracting, is a proper concern. He suggests that the issue is more to do with whether to give a second dose when the first has failed to achieve enough dilation to allow ARM.
35. Given that there would have been a vaginal examination on admission on the 3^rd November, as per the protocol, and that a further vaginal examination on 4^th November at about 8:30am, after the CTG had been running for 30 minutes, would have demonstrated no change in the cervix, there would have been no need for the delays which appear to have been built in to Dr Rutherford's construction of the likely sequence of events.
36. Where an induction is planned and there is a protocol of management, the process does not have to be initiated by on call medical staff. The earlier the process starts the better.
37. Mr Forbes says that, if Prostin were not administered, then Mrs Sherwood would need a semi elective caesarean section that day, probably in the morning, in the light of the fact that there would have been no discernable change in the cervix after 8 to 12 hours of contractions. If a further vaginal examination were planned 4 hours later, at 12:30, there still would have been no change despite painful contractions. At that point a semi elective section would have been performed in the afternoon of the 4^th November achieving delivery well before the end of the working day.
38. Mr Forbes believes, for a number of reasons, that there would have been fetal heart rate decelerations which would have been variable, sporadic and/or postural. First, there was oligohydramnios; second, cord compression was the most likely cause of the final collapse; third, cord compression can occur as a result in changes in the maternal or fetal posture and with inter-uterine pressure or contractions; fourth, it was not logical to assume that the significant deceleration at 17:11 on the 4^th November was the first to occur. It was the first to be detected. Even healthy babies can show isolated decelerations, often movement related, and they are many more times likely where there is oligohydramnios.
39. Mr Forbes considers what would have happened if Prostin were administered about 8:30 due to the lack of change in the cervix between the vaginal examination performed the previous evening and at 8:30 on the 4^th. This would have allowed a further assessment at 14:30 and a non urgent semi- elective caesarean section that afternoon if the cervix were not then suitable for ARM.
40. Mr Forbes posits that painful contractions would have been present, one in three minutes, within 90 minutes of administration of the Prostin, particularly given the spontaneous uterine activity. The contractions would have been stronger than the spontaneous ones. The CTG would have shown a stress response to these contractions. That would have included increasingly prolonged spells of reduced variability and variable decelerations, possibly late decelerations, or both. These would not be the same as the bradycardias which occurred at 17:11 and 17:38 as they would only last for the duration of the contractions whereas the cord compressions at 17.11 and 17.38 were not associated with contractions.
41. In his opinion, on a balance of probabilities, a caesarean section would or should have been performed within 4 hours of the administration of the Prostin because, if ARM were attempted, it would have failed or, if it had succeeded, it would have demonstrated thick meconium and/or a severe lack of liquid. Thus Ellie would have been delivered before 17:00 hours.
42. Mr Forbes also considered the response and outcome had bradycardias occurred identically to those of 17:11 and 17:38. In his opinion those events were brought about, not by contractions, but by entrapment and compression of the cord as random events. There was no reason to believe that exactly the same situation would have come about earlier, under different circumstances. Mr Forbes says that, had this occurred during a planned admission with a view to induction, the high risk nature of the pregnancy would have been clear to all. There would have been a clear management plan not only to deliver the baby on the 4^th but to do so during the working day with full consultant participation.
43. He first considered the situation where, prior to the prolonged bradycardia there had been prior decelerations. In that case the prolonged bradycardia would not have been regarded as the first deceleration but a major development in a high risk situation and arrangements would have been made to proceed immediately to a grade 1 caesarean section which would have resulted in delivery being achieved in time to prevent damage.
44. If the prolonged bradycardia occurred without prior deceleration then it would have been regarded as the first deceleration. In his opinion, as this would have been in the context of an active induction of a high risk labour, a further vaginal examination should have been performed to break the waters (ARM) with a view to attachment of a fetal scalp electrode and to see the colour of the liquor; to have done nothing would have been illogical and unacceptable. If ARM were possible, thick meconium would have been evident which should have led to a decision by 17:23 to proceed with a caesarean section category 1 emergency. The apparent recovery of the FHR could not be relied upon in these circumstances. Thus, the outcome would have been a delivery well before the time at which the damage occurred.
45. Finally Mr Forbes comments on the likely outcome if a caesarean section would not have been thought necessary until the second bradycardia, by which time a fetal scalp electrode would have been in place as a result of the response to the earlier deceleration. Under a planned regime, in the light of the previous alarming deceleration, the Registrar would have been immediately available, if not actually present, and the decision to go for a section would have been immediate, that is by 17:39. In those circumstances a general anaesthesia would have been preferred which would have saved up to another 5 minutes and delivery would, or should, have been achieved within 25 minutes from the decision, that is to say, by 18:04 at the latest, 13 minutes before the actual time of delivery.

Mr Mackenzie

46. In his opinion, given Miss Makepeace's wish to avoid a caesarean section for Mrs Sherwood, she would have recommended labour induction rather than a section on the 4^th November. That would have been made more probable given the reporting of some contractions on the 3^rd.
47. He assumes that the cervix would have been unfavourable on the evening of the 3^rd and the following morning, as it was at 17:00 on the 4^th.
48. He notes that the local guidelines for managing labour induction recommend giving Prostaglandins at 09:00 hours with two hours CTG monitoring and reassessment after six hours. The usual recommendation when treating with Prostaglandins is around 20 - 30 minutes fetal heart recording prior to and after administration of the Prostaglandins. When regular uterine contractions start thereafter it is usual practice to recommence continuous monitoring and to maintain this until delivery.
49. He agrees with Dr Rutherford's description of what she would have done. It is what he would have expected the management to be in the circumstances.
50. Thus, a review at 16:00 hours, three and a half hours following Prostaglandin treatment, is a reasonable expectation. An earlier review than at the protocol's six hours would be indicated if Mrs Sherwood appeared to be establishing labour. But, given her circumstances, she was unlikely to establish labour before 16:00 hours.
51. In his opinion there was no reason to suspect that the CTG recording would have shown premonitory fetal heart decelerations. The recording made from 16:28 hours on the 4^th November, when she was contracting, did not show repeated decelerations prior to the vaginal examination at 17:00 hours. The initially reduced variability shown on the graph would be indicative of an episode of a fetal sleep and does not represent a sinister feature given the fact that the variability spontaneously improved by 16:45 hours.
52. The vaginal examination would have been the same whether performed at 17:00 hours or earlier. He agrees that the most likely mechanism for the deceleration remains cord compression. The vaginal examination would have provoked an increase in the uterine contractility, a recognised response following a vaginal examination during labour. If a loop of cord were situated between the presenting head and the uterine wall and maternal surrounding pelvis there would be a risk of compression when the next, increased strength, contraction occurred. That would be greater with oligohydramnios. Turning Mrs Sherwood on to her side would have relieved the pressure on the loop of cord resulting in the recovery from the deceleration.
53. There were no further decelerations between 17:18 and 17:36. Contractions were occurring at between 3 and 5 minute intervals and the absence of decelerations during that 18 minute period supports the view that there would not have been repetitive decelerations, warning of impending cord compression. He concludes that, on a balance of probabilities, the damaging decelerations which followed the vaginal examination would have occurred if Mrs Sherwood had her labour induced on the 4^th November and if the vaginal examination had been performed earlier in the day.
54. Furthermore the immediate management of the initial deceleration would have occurred in the same way, whether by Dr Wood or by Dr Rutherford, had it occurred earlier in the day.

Dr Richard Miles – Consultant Paediatrician

55. It is accepted that the actual cause of the Ellie's brain damage was a period of profound asphyxia caused by a period of cord compression which occurred immediately prior to birth at 18:17 on 4^th November. He assumed a number of different scenarios.
56. First: if there had been no induction but an elective caesarean section then no cord compression was likely to have occurred and Ellie's brain damage would have been avoided.
57. Second: if there had been a Prostin induction, giving rise to stronger contractions and continuous monitoring, then, on the basis of Mr Forbes' view that the cord compression was not due to the contractions but due to the relative positions of the fetus cord and maternal structures and a matter of chance, and if, as Mr Forbes posits, a caesarean section would have been carried out earlier because of possible CTG changes that may have occurred, Ellie's brain damage would have been avoided.
58. Third: if the cord compression occurred as a result of a chance event, peculiar to the circumstances present at the particular time, but there would be close monitoring of the high risk induction, and an emergency caesarean section would have been carried out after the first deceleration, this would have avoided Ellie's brain damage as delivery would then have been achieved before the collapse of the circulation and profound asphyxia.
59. Fourth: if the decision for a caesarean section was not made until the second deceleration, but delivery time would have been reduced from the actual time of 33 minutes to between 21 and 25 minutes then Ellie would have been born 13 – 17 minutes before her actual time of delivery. In his report of May 2010, Dr Miles expressed the opinion that it was necessary to achieve delivery by 18:00 hours to avoid damage. If Ellie was born 13 minutes earlier than the 18:17 actual delivery time (i.e. by 18:04) it is probable that she would now have mild dystonic athetoid cerebral palsy, would have been ambulant about the house but needed transport for any distance outside. She would have been clumsy and needed some support for daily activity; she would have had normal cognition.

Dr Keith Pohl - Consultant Paediatric Neurologist

60. In his report in September 2011 he expressed the opinion that it was most likely that, at the maximum, the very last 10 minutes before delivery, plus a few minutes after birth is likely to have been the period over which Ellie's brain insult was sustained. Had she been delivered and resuscitated prior to that point it is likely that all her brain injury would have been avoided. If there had been a planned admission and induction then, only if the subsequent events had differed and resulted in delivery and resuscitation without the period of damaging hypoxia and ischaemia, i.e. something in the region of the last 10 minutes, would Ellie's brain injury and subsequent disability have been prevented.

Joint Expert Report Mr Forbes and Mr Mackenzie

61. They agree that they would have expected induction to have commenced on 4^th November by 9:00am or thereabouts. Mr Mackenzie accepts there would be a delay to assess whether labour was establishing spontaneously. They agreed that it was not uncommon for women whose labour is induced to be in labour for 12, 18 or 24 hours.
62. They were asked what CTG monitoring throughout the 4^th November would have shown.
63. Mr Forbes said that in the light of the apparent reduction in movements before 11:00, the base line would have been 150; baseline variability would have been greater than 5 for the majority of the time with accelerations only when there was a flurry of movements. As time passed there would have been sporadic decelerations of 3 types, post accelerative, random/unprovoked, and variable decelerations accompanying stronger contractions. It is very likely from the staining of the baby and cord that meconium was passed several hours before 17:11. There is no MRI evidence of damage caused by chronic hypoxia. It is therefore likely that there were decelerations before monitoring commenced at 16:28. Had Prostin been administered at around 9:00am there would have been stronger contractions causing transient variable decelerations due to cord pressure which were different from prolonged decelerations due to cord entrapment. However, a picture would have evolved through the day of variable and random decelerations which, in light of the high risk nature of the pregnancy and the unfavourable state of the cervix, would have led to obstetric intervention in the form of a caesarean section. The decelerations would not have been the same as those which occur in the event at 17:11.
64. Mr Mackenzie, based on the initial 30 – 40 minutes of CTG recording on the afternoon of the 4^th November, together with Mrs Sherwood reporting normal fetal movements on that morning, said there would, on the balance of probabilities, have been a reassuring CTG pattern with accelerations.
65. They were asked if it was agreed that delivery, by way of elective or semi elective section prior to 17:00, would have led to the claimant being safely delivered in good condition.
66. Mr Forbes agrees. Mr Mackenzie says that if delivery had been by elective caesarean section the claimant would have been delivered in good condition without brain damage. As to semi elective, if performed once contractions had established, a vaginal examination would have been performed before ratifying the decision for a semi elective section. In that event, what actually occurred after 17:00 hours would have occurred, whatever time that examination was performed.
67. Asked about the likely cause of the decelerations at 17:11 and 17:38, Mr Forbes confirms that they were brought about by the entrapment and compression of the cord. Mr Mackenzie agrees but says the initial deceleration was probably provoked by the increase in contractions strength stimulated by the vaginal examination shortly after 17:00 causing cord compression, probably exacerbated by her being moved to a more upright position. Having been turned onto her side some relief was temporarily obtained until the increasing contractions' strength once more caused a sustained pressure on the cord with obstruction to the circulation.
68. They are agreed that entrapment and compression of the cord is a random event dependent on the particular positions of mother, fetus and cord at any particular moment. The risk is increased in pregnancies where there is reduced liquor volume.
69. They were asked if they agreed that there was no reason to believe that exactly the same combination of positions would have occurred at the same moment in the event that Mrs Sherwood had been admitted on the 3^rd November. Mr Forbes agrees. Mr Mackenzie says that when the vaginal examination is performed the maternal position would very probably be similar to that adopted after 17:00. The resulting stimulus of the vaginal examination, leading to an increased strength of uterine contractions would have occurred, with the same resulting decelerations.
70. They were asked what difference would have been made if the same bradycardias had occurred at the same times if Mrs Sherwood had been admitted on the 3^rd November.
71. Mr Forbes says a bradycardia occurring at 17:11 would not have been the first deceleration observed. The CTG would have been running all day. When it was apparent at 17:12 that there was no immediate recovery the obstetric registrar would have been present almost immediately at 17:13. He would have been aware of the high risk status of the pregnancy and aware of the entire CTG. He might have performed a vaginal examination and found that Mrs Sherwood was not in labour. He would then have ordered a crash section by 17:16 calling in the consultant, who would have been on the labour ward, to review the situation. They would have achieved delivery 30 – 35 minutes earlier than was achieved in the event. That decision would not have been revoked in light of the apparent recovery of the fetal heart rate.
72. Mr Mackenzie says that the midwife would have called the senior registrar urgently on noting the deceleration, encouraging Mrs Sherwood to lie on her side and give her oxygen. Logically the same sequence of events would have followed as in fact occurred on the 4^th November.
73. Mr Forbes says it is intuitively unlikely that mother, fetus and cord would have been in identical relationships if the vaginal examination had been performed earlier. The 17:38 deceleration could have been caused by the mechanism of physical entrapment because neither mother nor fetus would have been immobile after turning her on her side and a further episode of cord compression was quite likely given the lack of fluid and the thinness of the cord.
74. Mr Mackenzie says gravity alone could not be the explanation as it would have resulted in a sustained bradycardia and fetal death at some point much earlier as Mrs Sherwood was in a sitting upright position at most times prior to 17:11. The second deceleration militates against gravity being a relevant factor as by that stage Mrs Sherwood was in a different position, on her left side.
75. They were asked whether the management described by Dr Rutherford is what they would have expected. Mr Forbes said no, it does not conform to the unit's own protocol. It would have been obvious from the records that the cervix had not changed at all in several days let alone overnight. Dr Rutherford's view about the contra-indication to Prostin by reason of the reported contractions is not valid. Mr Mackenzie agrees that Dr Rutherford's description of management is what he would have expected. Mr Forbes says that such management as she has described would not have been reasonable and responsible. Mr Mackenzie says it would.
76. They both agree that, given insertion of Prostin at 12:30, a midwife review at 16:00 would have been a reasonable expectation.
77. They were asked whether the CTG would have shown premonitory fetal heart decelerations, whether discontinued two hours after Prostin insertion, or maintained continuously. Mr Forbes says there would have been and, in any event, the CTG would not have been discontinued because Mrs Sherwood was having contractions. Mr Mackenzie says that, based on the CTG recording made following admission at 16:00 hours and the likely explanation for the two decelerations that had occurred at 17:11 and 17:38, premonitory decelerations would have been very unlikely.
78. They were asked if they agreed that the likely mechanism for the cord compression was a loop of cord being compressed between the presenting head and the uterine wall and surrounding maternal pelvis when the next contract occurred. The strength of such contraction having increased as a result of the vaginal examination having provoked an increase in uterine contractility.
79. Mr Forbes says no. The cord could have been anywhere, because the lack of fluid made it vulnerable as did its thinness. There was no evidence that there was an increase in uterine contractility 11 minutes after the vaginal examination. There was no mention in the operating notes of the cord being found beside the head or below it when the head moved up out of the pelvis.
80. Mr Mackenzie says yes. It is a consequence of the Ferguson Reflex. Mr Forbes comments there was no evidence of any prolonged contractions to explain the prolonged bradycardias if this were the mechanism.
81. They were asked if they were agreed that cord compression would have been relieved, as it was following the 17:11 deceleration, by turning Mrs Sherwood onto her side thereby relieving the pressure on the loop of the cord.
82. Mr Forbes says cord compression is usually relieved by adopting a lateral position. In this case relief was not apparent immediately, but the fact of recovery does not give an indication of the position of the cord. If it were behind, in front, or to the right of, the fetus the left lateral position would have been helpful. Mr Mackenzie says that the first cord compression would have been relieved and that the second deceleration, with the patient lying on her left side, adds weight to the mechanism responsible being the increased strength of the uterine contractions consequent upon the vaginal examination.
83. They were asked whether they agreed that the absence of any decelerations between 17:18 and 17:36 indicates that there would not have been a repetitive decelerations warning of impending cord compression had the vaginal examination been carried out earlier.
84. Mr Mackenzie agreed, and added that this was a convincing argument. Mr Forbes did not agree. In the light of the terminal events, the absence of liquor and the thick meconium suggesting earlier decelerations, and the earlier contractions it was not logical to infer that there would not have been previous decelerations. It was very likely that there would have been recurrent decelerations.
85. They were asked if they were agreed that, on a balance of probabilities, the damaging decelerations would have occurred in any event if her labour had been induced on the 4^th November and a vaginal examination performed earlier.
86. Mr Forbes did not agree. Earlier induction would on a balance of probabilities have been associated with decelerations which would not be unduly prolonged and would be relieved by the relaxation of the uterus between contractions. With proper management Ellie would have been delivered before damage.
87. Mr Mackenzie agrees with the proposition.

Oral Evidence of Lay Witnesses

88. Mrs Michelle Sherwood agreed that Mrs Curtis' further statement recorded the positions she was in.
89. Dr Rutherford received a letter of appointment as consultant on 5^th December 2002 but probably knew of her appointment before that, having been told at the interview, and she may well have given notice at that earlier stage.
90. She agreed that Michelle Sherwood would be a list B patient on the protocol because of her medical conditions. She agreed that Michelle Sherwood presented a high risk situation based on her clinical notes. She said that on the initial board round, conducted with the consultant, they would not review the records. They would be given an update by the co-ordinating midwife and she would look at the records on the ward round when she would review each patient in detail and would look at the clinical records.
91. On that day the records show that an emergency caesarean was admitted at 9:15. That would have interrupted her ward round, possibly before she had seen Michelle Sherwood, as she would look first at those patients who were in labour rather than those booked in for an induction, even if high risk. It was up to Mr Pickles to decide if he needed to see her himself on a ward round.
92. After the first baby had been delivered at 10:40 or thereabouts she would recommence her ward round and would then look at the clinical records. She agreed that those records included a clear warning by the anaesthetist as early as August that she should not be induced out of working hours (page 366/Bundle 2).
93. She was taken through what Mr Forbes said should have been included in a management plan; numbers 1 – 4 were not controversial. As for paragraph 5 she said that if the CTG was pathological and it was not possible to rupture the membranes, so she could not obtain a fetal blood sample, she would proceed to a caesarean section.
94. Having embarked on an induction she would not, assuming that the monitoring remained normal, intervene until the following morning. The possibility of a semi elective C section the following day would have arisen. If the CTG was pathological and they were unable to obtain a fetal blood sample because it was not possible to do an ARM, it would become an emergency C section to be done as soon as possible.
95. She confirmed that, as Mrs Sherwood reported having tightening overnight, she needed to assess whether she was in labour before starting induction.
96. Mr Pickles said that Dr Rutherford had extensive experience and training and he had full confidence in her abilities.
97. If Mrs Sherwood had been admitted on the 3^rd November he would have attended the labour ward at 9:00 am on the 4th for a board round, with the co-ordinator and Dr Rutherford. In the case of Michelle Sherwood he would have asked to see the medical records at that stage. He would want to know the ins and outs of her case and would then decide whether he would see her, dependant on the experience of the registrar. He would, in this particular case, more likely have allowed Dr Rutherford to see the patient. He said that it would be very unusual for a consultant to write a management plan, certainly one involving a specific time to complete the delivery, particularly as Miss Makepeace was trying to avoid a caesarean.
98. It being reported that Mrs Sherwood was having contractions overnight, he would keep a close watch on her, in particular her CTG. He would not want to give her Prostin at that stage. He would watch her for an hour or two, even if the cervix was not then dilated. If Dr Rutherford wanted to discuss her management plan, having completed her ward round, he would have been content for her to do so.
99. He did not accept that there should have been a blanket policy of proceeding to a caesarean section anytime an induction looked likely to go beyond the ordinary working day of 9 – 5. A judgment would be made on each particular case, particularly where there was no evidence that there were any abnormalities arising during the induction.
100. He would look at the CTG and, if that was pathological and they were unable to do a fetal blood sample, they would intervene by performing a C section, but he would not normally consider induction to have failed until the following day. If all was normal then there would be no reason not to continue with the induction.
101. Maria Curtis, the co-ordinating midwife, carried out the vaginal examination at 17:00. The Bishop score was 4. She would have inserted one or possibly two fingers into the vagina and, in particular, the cervix. At the time of the birth at 18:17 the thick meconium was fresh meconium.
102. Before the vaginal examination Mrs Sherwood was sitting up. She was put in a semi recumbent position for the vaginal examination. Her position, having sat up again would not have changed.

Oral Evidence of Experts

Mr Forbes

103. Asked about the contents of his management plan, point number 5, he would have included that in writing as it went against the protocol not to embark on a second dose of Prostin after 6 hours.
104. Point 6, requiring delivery by the 4^th November during work hours, was there for two reasons. First, because no body of professional opinion would accept prolongation beyond the end of the 41^st week. Each day which passed would add to the risk. Furthermore, for this kind of high risk delivery, a delivery out of hours without a full complement of medical staff and with a consultant outside the hospital would not be advisable particularly where, as here, the anaesthetist had warned specifically against delivery out of hours. Michelle Sherwood was not just obese she was, with a BMI of 55, very significantly above the level at which obesity starts.
105. He agreed that concern about giving Prostin to a person having contractions was a reason for delaying inserting Prostin. Once administered, she would have had stronger and more regular contractions which would become apparent up to a couple of hours afterwards. The literature suggests that, after 90 minutes, the mean is 1 in every 3 minutes.
106. Once the stronger contractions were established it would have an effect on the CTG in that the pressure inside the womb would be significantly greater. Once established in labour it was mandatory to keep the CTG going.
107. The crucial factor in this case was the lack of liquor. If there is a normal amount it cushions the impact of contractions and distributes the pressure so the cord is less likely to be compressed. In his opinion, one potential effect on the CTG would be to show a variable deceleration. The evidence found after the delivery by the paediatrician (Bundle 4 page 642) coupled with the description of the meconium as fresh, that is produced on that day, leads him to believe that some meconium was present at least 3 hours prior to the delivery. He infers that from the description of the cord as being dark yellow or green. In addition, because the cord looked thin, it was vulnerable to the effects of increased uterine pressure. Meconium is produced as a response to fetal distress. If produced some hours prior to delivery, the most obvious source of fetal distress would be cord compression.
108. The CTG findings would determine what action was to be taken. If there was variable deceleration, in response to contractions, there would be a serious concern that the fetus would begin to suffer a lack of oxygen. He refers to the NICE guidelines: a non reassuring CTG in relation to decelerations would be represented by a variable deceleration, or a single prolonged deceleration of less than 3 minutes. A pathological CTG is described as comprising 2 or more non reassuring features, or one or more abnormal feature. An abnormal feature, in relation to deceleration, would comprise a single prolonged deceleration of more than 3 minutes.
109. In light of the evidence, particularly the evidence of the cord stained with meconium, he would expect there to have been two non reassuring features namely, variable deceleration and variable acceleration of less than 5 for 40 plus minutes, such that the CTG would have presented as pathological.
110. In the light of that and the unfavourability of the cervix, such that ARM would be very difficult, at that stage a C section should have proceeded, the trigger being the pathological CTG and the presence of thick meconium. In those circumstances there would be no option other than to proceed to a C section.
111. Furthermore, intuitively, he says that the bradycardias at 17:11 and 17:38 were extremely unlikely to have arrived out of the blue as the first decelerations. It was very likely that there were earlier decelerations of a sporadic nature.
112. If the CTG had been reassuring, it would have been difficult to justify a C section save for the need to ensure that the delivery did not occur at night and, because Mrs Sherwood was at 41 weeks plus, he would have drawn a line at the 4^th November. He would have proceeded to a semi elective caesarean during the working day when there was a full complement of staff. He agrees that others would take a different view. It's a matter of balance.

Cross Examination

113. He agrees that he was wrong in his initial assumption that there had been no fetal movement on 3^rd November. This was contradicted by the telephone note of midwife Brocklehurst. As a result he rewrote his addendum report. It is very difficult to predict these things.
114. He was asked why he said that both the decelerations were attributable to the action of gravity given that there had been no deceleration in the 43 minutes before 17:11. He said that, although she was apparently in the same position, sitting up, she was not immobile. Subtle movements may be enough to trigger a cord compression and deceleration and she had, in any event, been moved twice to facilitate the vaginal examination - by being put in a semi supine position and then raised again to a sitting position.
115. He was asked why, when she had been moved from a sitting up position on to her left side, he was prepared to say that the same cause, namely gravity, had caused both cord compressions resulting in significant deceleration. He again said that the relationships between fetus, maternal structure and cord were infinitely variable within the confined space, and she was vulnerable to cord compression especially when there was little liquor.
116. He had difficulties with Mr Mackenzie's explanation that the Ferguson Reflex, following a vaginal examination, resulting in increased strength and frequency of contractions, was the explanation for the 2 cord compressions. He agrees that the literature describes the Ferguson Reflex as continuing and increasing once established. He says that is so where there is established labour but here labour was not established, nor was she even in early labour. Furthermore, uterine contractions are transient, operating in waves, from which the patient recovers and then there is an onset of a second contraction. That would not explain the duration of the decelerations at 17.11 and 17.38.
117. As for delaying insertion of Prostin for a patient reporting contraction, he accepted that practices vary and were different at this hospital at that time.
118. He agreed that his view about proceeding to a C section on the 4^th November, absent any abnormal CTG, was informed by the premise that delivery had to be achieved on the 4^th November during the working day. If that was not the premise, he agrees it would have been acceptable to leave the things to progress normally after the first Prostin, provided the CTG was reassuring.
119. He was asked why he said there would have been a record on the CTG of variable decelerations when, during the period from 16:28 until 17.11, there had been no variable decelerations. He said that the variable decelerations he was describing would be random triggered by contractions and/or the positions of the mother, the fetus and the cord. They might not be very frequent, would be provoked by maternal and fetal movements, but he relied on the evidence relating to meconium which had been there for three hours to support his proposition that there must have been a prior distressing event which he said was most likely to have been a deceleration connected to a contraction. Furthermore, Michelle Sherwood, at 16:00 when examined on admission said the contractions were becoming more painful but at a point before 17.00 had said that the contractions were not as strong as they had been. She had come in to the hospital because at 3:00pm she had reported contractions were becoming more painful than they had at 11:00 am when she had first reported that the contractions were becoming painful.
120. He agreed that the baby had undergone a profound circulatory collapse and whilst that would have explained the passage of some meconium, there was a lot of it, (++). The fact that some of it was produced as a result of that catastrophic event did not preclude the passage of meconium earlier which had caused the discoloration of the cord noted by the paediatrician on delivery.

Mr Mackenzie

121. He explained the presence of thick meconium ++ after delivery as caused by the distress caused by the first and/or the second deceleration. The colour of the cord observed could be because the midwife had wiped the baby of meconium but not the cord. It would not be unusual for a 41 week fetus to pass meconium during gestation regardless of fetal distress.
122. The Ferguson Reflex is particularly triggered upon digital vaginal examination upon the cervix causing a release of oxytocin and local prostaglandins. He had assumed that Mrs Curtis had used her fingers in her examination, as she had.
123. He referred to the article by Professor Turnbull supporting his evidence of the likelihood that the decelerations at 17.11 and 17.38 were caused by increased contractility stimulated by the release upon vaginal examination of oxytocin and prostaglandins. In labour, once the excitation system has been activated it leads to an accelerating labour progress. In this case, though labour was never established, by analogy, this was a patient who had been having contractions for a lengthy period so this observation in the literature supported his contention. The fact that there was a gap of 18 minutes between the first and second deceleration was explained by the fact that contractions vary in strength.
124. Thus, whenever the vaginal examination had taken place, the likelihood was that the same effect with the same consequences would have occurred.

Cross Examination

125. He agreed that Miss Makepeace would have discussed with Mrs Sherwood what would be likely to occur upon her admission on the 3^rd and 4^th November and would have made some notes in the medical records. However he did not accept that there would have been anything more prescriptive than a general statement that she was to be admitted with a view to induction on the 4^th November. The rest of Mr Forbes suggestions were either routine, not requiring to be noted, or were based on an erroneous premise that delivery within the working day on the 4^th November was mandated.
126. He did not accept the Forbes explanation for the cord compression at 17.11 because of the non appearance of any deceleration in the CTG between 16.28 and 17.11.
127. He agreed that thick meconium is usually evidence of fetal distress. He also agreed that the thinness of the cord increased its vulnerability to compression. He agreed that if the cord was stained the colour observed upon delivery it would evidence meconium had been passed some hours before of the order of six hours.
128. He confirmed that, if there were two non reassuring features present at the same time, that would signify a pathological CTG which would, in turn, trigger a vaginal examination to see whether ARM could be performed. If it could not, you would go to an emergency C section. If it could, and there was meconium present, you would attempt to take a fetal blood sample. If that could not be done you would go to a C section. If it could, and the blood showed evidence of fetal hypoxia, again you would go to a C section. If it did not you would monitor the situation.
129. In Professor Turnbull's article he agreed that, in describing the position in late human pregnancy it was said that the release of the chemicals by vaginal examination was transient not permanent, but he said the fact that Mrs Sherwood was already contracting, though not in labour, meant that the effect would be repetitive.
130. He agreed that on the CTG the bottom line, the tocograph, did not show any contractions after 17.00 but it didn't show them before that time either. The mechanism for that measurement, by affixing a belt round the mother's stomach, is hit and miss and liable not to pick up contractions, so the absence of a measurement of contraction on that graph is not significant.
131. When it was suggested that the physical entrapment explanation of Mr Forbes answered the problem with his explanation - that the decelerations were of a much more lengthy duration than could be explained by contractions, - he found it hard to accept that the basic mechanics of Mr Forbes' explanation could explain two decelerations 18 minutes apart when Mrs Sherwood was in such different positions.
132. On the 4^th November, when Mrs Sherwood was admitted, the midwife did not have full knowledge of her condition. Dr Woods had noted that she was 39 weeks whereas she was 41 weeks plus, there was no suggestion that Dr Woods would have known of the anaesthetist's warning about possible difficulty with such an obese patient. Nonetheless, he did not accept that the presence of a full complement on site would necessarily have meant that they could drop everything and run when the emergency presented itself. In his opinion the likelihood is that the same time frame would have operated for a response to the second deceleration, even had she already been admitted on the 3^rd.

Submissions

The Defendant's written submissions in its Supplementary Skeleton Argument

133. I am invited to accept the evidence of Dr Rutherford as to the course which she says she would have adopted had Mrs Sherwood been admitted on the 3^rd November with a view to commencing and induction on the 4^th.
134. She would not have been induced on the Sunday evening. On the morning of the 4^th she would have been brought to the labour suite at around 8:00am and would have reported a history of irregular contractions overnight.
135. A CTG would have been started around 8:15 by the midwife. She would have been discussed briefly in the "board round" at 9 o'clock between Dr Rutherford, Mr Pickles and the labour suite co-ordinator. In light of Mr Pickle's evidence, at that stage they would have looked at the medical records.
136. She would have been seen by Dr Rutherford on her ward round. That may have been interrupted by an emergency caesarean which commenced at 9:15 until about 10:40 but, in the meantime, Dr Rutherford would have asked the midwife to perform a vaginal examination. That would have been unfavourable.
137. In accordance with Mr Pickles' evidence, they would have agreed to monitor Mrs Sherwood for a couple of hours to see whether she was entering labour spontaneously before commencing induction by the insertion of Prostin. The CTG would be run throughout the morning until about 11:30 to 12:00 at which point there would be a further vaginal examination which would still have been unfavourable. At that point Dr Rutherford would have concluded that Mrs Sherwood was not in labour and that it was appropriate to begin induction which would, given her commitment in theatre, have begun shortly after 12:30. Under the protocol the CTG would have continued for a further 2 hours. She would have been due for a further review 6 hours from the insertion of Prostin. However, given what Mrs Sherwood reported, giving rise to her admission at 16:00 hours, it is likely that there would have been a review at 16:00, as in fact occurred.
138. In support of the adoption of that course of proceedings I am invited to rely on Dr Pickles who approved Dr Rutherford's stated plan and Mr Mackenzie, who also approved it as proper and appropriate.
139. The defendant submits that events would then have continued as they did on the 4^th November, that is to say the first bradycardia at 17:11, dealt with appropriately by Midwife Curtis leading to the recovery noted, and 18 minutes later the final bradycardia leading to an emergency caesarean section and delivery in accordance with the time frame which actually occurred.
140. The defendant submits that I should accept the evidence of Mr Mackenzie that there would, from the CTG, have been no cause for anxiety from reduced variability or premonitory decelerations. This was the case from the CTG on the 4^th November starting at 16:28.
141. I am in invited to conclude that the first and second bradycardia were induced by the Ferguson Reflex following the vaginal examination at 17:00 and that it is more likely than not that a vaginal examination at around that time, or earlier, would have had the same results. The defendant invites me to reject the suggestion by Mr Forbes that the cause of both bradycardias was gravity deriving from the random, chance, relative positions of the fetus, cord and maternal structure. I am also invited to reject the contention that it is intuitively unlikely that precisely the same set of circumstances would have occurred had she been dealt with as an admitted patient with vaginal examinations at different times. It is said that Mr Forbes' explanation cannot explain why there would be two bradycardias both rising from physical compression, as Mrs Sherwood was in very different positions, respectively, at 17:11and 17:38.
142. If the cause were gravitational, the first when Mrs Sherwood was sitting up, it would not explain why there was no fetal deceleration noted between 16:28 and 17:11 when she was in the same position. Furthermore, the literature concerning the Ferguson Reflex indicates that, if that is the mechanism following vaginal examination, in a case such as that of Mrs Sherwood who was having contractions, the cord compression deriving from the increase in the strength of contractions would be repeated as was the case here.
143. The defendant invites me to reject the contention of Mr Forbes that, had she been admitted, and had a CTG been run during the bulk of the day, sufficiently serious variable decelerations would have occurred randomly, and would have been recorded, so as to satisfy the NICE definition of a pathological fetal heart rate trace. Reliance is placed on the fact that during the 43 minutes prior to 17:11 there was no evidence of a variable deceleration.

The Claimant's written submissions in her Supplemental Skeleton Argument

144. The claimant invites me to consider whether, as she contends, there should have been a specific plan tailored to meet her particular concern rather than treating her under the standard list B protocol.
145. I am invited to consider whether CTG monitoring would have led to the revelation of a fetal heart abnormality, such that a non emergency caesarean section would have been performed.
146. I am asked to consider whether the progress of induction would have been so slow, in the context of the specific anaesthetist's warning against delivery outside normal working hours, that a non emergency caesarean section should have been performed on the 4^{th in} any event.
147. I am asked to consider whether, if the induction had proceeded, the damaging decelerations would have occurred in the same way following a vaginal examination, whenever conducted, or whether the decelerations which did occur were random events and therefore unlikely to recur.
148. Finally, I am asked to consider what, if any, difference there would have been in the speed with which an emergency caesarean section would have been performed had the foreknowledge and preparations appropriate to a high risk patient have been in place rather than what happened on 4^th November.

Oral submissions

Defendant's submissions

149. The burden is still on the claimant to prove that the breach I have found caused the injury suffered. The question is what would have happened if an event which, by definition did not occur, had occurred. I also have to consider whether what would have happened would have involved a further breach of duty by the defendant. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some further breach of duty thereafter. (Bolitho v. City and Hackney Health Authority1997 H.L.[1998] AC 232).
150. It is contended that the remaining issues remain for decision.

1. What would the CTG have shown between 12.30 and 16.28?

2. What is the likely mechanism for the decelerations at 17.11 and 17.38?

3. Has the claimant proved that the outcome would have been different if there had been a vaginal examination at some different point between 16.00 and 17.00?

4. Should the induction have been commenced earlier than the 12.30 Dr Rutherford has stated?

151. The credibility of Mr Forbes is criticised. He made an unreliable prediction about the movement of the fetus ceasing on 3^rd November before he was aware of the telephone note of the 4^th which revealed that movement had continued until the 4^th. In addition, it is said that he was cavalier about the accuracy of his description of supportive evidence by citing the staining of the baby with meconium, whereas that was not observed by the paediatrician and recorded in his notes.
152. On the first question, the only CTG we have, from 16.28, does not reveal any prior deceleration. The initial reduced variability spontaneously recovered. Mr Forbes, in the joint statement, explicitly stated that any spell of reduced variability would not have exceeded 40 minutes so as not to fall within the NICE definition of a non reassuring feature. Nor was the evidence of meconium on the cord necessarily evidence of prior pathological fetal distress, it is not uncommon in a 41 week fetus. Thus it is said there is no evidence to support a finding that it is more likely than not that the CTG would have been pathological during that period so as to have triggered an earlier caesarean section.
153. On question 2. The explanation of Mr Mackenzie chimes with the vaginal examination at 17.00 in a pre labour, contracting mother leading to increased contractility and repeated, stronger, contractions, though of varying severity, leading to cord compressions at 17.11 and again at 17.38. The alternative explanation does not fit with the evidence. Why was there no cord compression between 16.28 and 17.00 when Mrs Sherwood was in the same position she was subsequently in and how is it that there is a second cord compression from that cause 18 minutes later when her position is completely different and has contributed to relieving the initial one? The absence of contractions after 17.00 measured on the tocograph is of no relevance as that is not a reliable record.
154. It would not have been a breach of duty to delay the commencement of induction until 12.30 rather than 10.45 given Dr Rutherford's other commitments.
155. Whenever the decelerations occurred, the response to the second one would not have been any different. It would still have been an emergency and there is no evidence that Dr Rutherford, an experienced specialist, would have responded any quicker or differently to Dr Woods, another experienced specialist.
156. The claimant's oral submissions
157. Agrees with the guidance in Bolitho.
158. Maintains the previous criticism of Mr Mackenzie as unduly rigid in his views.
159. Emphasises the seriousness of Mrs Sherwood's condition, of which Dr Rutherford would have been aware, from the medical notes and which would have been added to by Miss Makepeace in notes, in however abbreviated a form of the following features: obesity (bmi of 55); hypertension; gestational diabetes; and the fact that, at the start of the 42nd week, she was past the latest acceptable time for delivery. She would have known that it was important for the birth to be as soon as practically possible.
160. It was mandatory for Mr Pickles to see Mrs Sherwood himself so he would have been available to commence the induction at 10.45 not 12.30. There would have been a continuous CTG since 8.15 so as to inform a decision to induce earlier than 12.30.
161. The sequence of events would have revealed an earlier pathological fetal heart rate. It would have shown two non reassuring features at the same time: increasingly prolonged periods of reduced variability and variable decelerations. In support of this, reliance is placed on: the fact that Prostin insertion would have increased the number and strength of contractions; the fact that there already was reduced liquor; the thinness of the cord; and thick meconium, staining the cord, all evidencing fetal distress hours prior to the relevant decelerations. There was evidence of reduced variability already occurring when recording began at 16.28 which may or may not have lasted more than 40 minutes. On that basis a caesarean section would have occurred following an attempt to achieve an ARM which would either have failed, or would have evidenced meconium in the liquor.
162. On the mechanism of the decelerations, the Ferguson Reflex does not adequately explain them. In late pregnancy they are transient not permanent. In any event they occur in waves which is incompatible with the second deceleration which lasted continuously from 17.38 until 18.17. On the other hand, the explanation of physical compression occurring randomly is consistent with these two decelerations. Mrs Sherwood would not be immobile in the position she was in after the vaginal examination at 17.00 and after being moved on to her left side at 17.18. She would move about and even a small movement would be capable of triggering a compression given the vulnerability of the thin cord in a reduced level of liquor and the evidence of prior fetal distress. Thus the decelerations would not necessarily have occurred in the same way.
163. Furthermore, if the first deceleration had occurred at 17.11, in the context of a planned admission in the circumstances described, that would have triggered an immediate Caesarean section which would have resulted in Ellie being delivered safely.

Findings of Fact and Conclusions:

164. I accept as truthful the evidence of Dr Rutherford and Mr Pickles as to what course they would have adopted. In my judgment what they described would be a course open to medical practitioners acting reasonably and in accordance with accepted practice. There are, plainly, differences of view as to how to proceed but the way in which Mr Forbes suggests they ought to have proceeded is not mandatory.
165. Accordingly, I conclude that, had they proceeded in that way and had there been no evidence of a pathological fetal heart rate, the events after 4:00 pm through to the first bradycardia would have unfolded in the same way.
166. I am satisfied, on the balance of probabilities, that the cause of the bradycardias at 17:11 and 17:38 was as described by Mr Forbes. In my judgment, whilst the explanation of Mr Mackenzie is, with a stretch, consistent with a recognised process described in the literature, namely in respect of a non labour but already contracting patient, and the first bradycardia is consistent with its proximity to the vaginal examination at 17:00 hours, the problem with Mr Mackenzie's explanation, which cannot be adequately explained away, is the fact that, if both bradycardias are related to contractions, which come in waves, the explanation does not describe a deceleration which starts at 17.38 and continues, unabated, until 18.17.
167. In my judgment these two lengthy decelerations are only explicable by cord compressions caused by physical entrapment of the cord between the fetus and the maternal structure. The fact that the first was initially relieved by moving Mrs Sherwood on her side is not inconsistent with that explanation. The relocation of Mrs Sherwood on to her side initially freed the trapped cord, but it became trapped again, by virtue of some marginal change of her position thereafter. The evidence that such entrapments can occur randomly is consistent with this explanation, as is the fact that the cord was particularly vulnerable to entrapment by reason of its thinness and the reduced level of liquor. So too is the evidence, based on the observation post delivery by the paediatrician, of the cord being coloured deep yellow/green. This is consistent with meconium staining the cord from being passed hours earlier. That in turn is consistent with a prior occasion of fetal distress.
168. I accept the evidence of Mr Forbes that subtle movements of the position of the mother can trigger such decelerations. There is no evidence that Mrs Sherwood was immobile at the relevant times albeit remaining in similar positions, respectively, sitting up and on her left hand side.
169. I do not accept the proposition of Mr Forbes that there was a requirement that delivery be achieved by the end of the working day on the 4^th November. What was required was a managed and controlled procedure with a view to, potentially, an induction and/or delivery by caesarean section to be commenced first thing on the Monday morning after admission overnight on the 3^rd November. If, in the normal course of events, the induction did not commence until about 12.30 and went beyond 5:00pm on the 4^th and was allowed to run in to the 5^th that would be in accordance with reasonable practice. In my judgment, cutting short induction or not starting it by reason of a preordained cut off point at 5 o'clock on the 4^th November, was not mandated by what I indicated in my first judgment.
170. However, I do find that, given that the fetus was, on the 4^th November, already one day beyond the end of the 41^st week, the maximum safe period for gestation in such a case, there was a need for the baby to be delivered as soon as was practically possible following the commencement of the process first thing on Monday morning. I find that these facts and that requirement would have been included in the medical notes which Miss Makepeace would have written following upon her decision to proceed in the way that I have found she should have.
171. I do not find that, on the balance of probabilities, there would have been a pathological fetal heart rate earlier than 17.11. In order for there to be such, in accordance with the NICE criteria, there would have to be two non reassuring features at the same time or one abnormal feature. Mr Forbes has agreed in the joint statement that there would not, on the balance of probabilities, have been a non reassuring reduction in variability as he has said that any such reduction would not have been for in excess of 40 minutes.
172. Furthermore, whilst there is evidence of fetal distress occurring some hours before delivery, there is no evidence that, if its cause was cord compression, it would have caused a deceleration that would have lasted longer than 3 minutes so as to make it abnormal.
173. I do find, however, on a balance of probabilities, at some point after 16.00 there would have been a deceleration of the same order as that which occurred at 17.11 caused by a physically occasioned cord compression. I find that on the basis of the following facts. The cord was vulnerable to compressions for the reasons already rehearsed. Mrs Sherwood had a bmi of 55. There is evidence (the cord staining from meconium) that there was, in fact, previous fetal distress which, on a balance of probabilities and for the same reasons, I conclude was caused by a previous cord compression. Mrs Sherwood was, in fact, subject to two physically occasioned cord compressions, the first at 17.11 and the second within half an hour despite being moved on to her side to relieve the first.
174. When that deceleration occurred, the medical staff would be aware from the medical notes of all the high risk elements already described, including the fact that there was a need, given that the fetus was already in excess of 41 weeks, for it to be delivered as soon as practically possible. They would also be aware from the continuous CTG of a previous non-reassuring, though not necessarily abnormal, feature, namely a single prolonged deceleration. A deceleration of the order of that which occurred at 17.11 on the 4^th November would be of such a duration that it would be regarded under the NICE guidelines as abnormal.
175. Given all these elements, in my judgment, on the balance of probabilities, had Mrs Sherwood been admitted as she should have been, such a deceleration of that order, at about 17.11, would have triggered an attempt to conduct an ARM and hence, whether or not that failed, a caesarean section resulting in a delivery before Ellie suffered any damage.
176. In those circumstances, in my judgment, the claimant has proved, on the balance of probabilities, that an admission on the 3^rd November with a view to a managed and controlled delivery starting on the 4^th November would have resulted in a caesarean section being performed, otherwise than in the emergency circumstances which pertained following the second bradycardia at 17:38pm. Delivery would have been sufficiently earlier and in sufficiently different circumstances that, in accordance with the paediatric evidence, the damage to the claimant would have been entirely avoided.
177. In those circumstances, in my judgment, the claimant has established that the defendant is liable.