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

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

		The Law Courts Winchester, Hampshire SO23 9EL
		07/08/2015

Mr Justice Dingemans:

Introduction

1. This is a claim for clinical negligence made by Georgina Wells ("Mrs Wells") and Bradley Smith ("Mr Smith") who are the parents of Layla Wells ("Layla"). Layla was born and died at the Princess Anne Hospital, Southampton ("the hospital") on 20 July 2010. Layla died as a result of meconium aspiration about 35 minutes after her delivery at 1153 hours.
2. The claim is against University Hospital Southampton NHS Foundation Trust ("the NHS Trust") which operates the hospital. It is contended that given the readings on the cardiotocograph ("CTG") and the clinical picture, the caesarean section ("C section") which was carried out at 1153 hours should have been carried out by 1050 hours. It is contended that Layla probably aspirated the meconium after 1050 hours, and that if the C section had been carried out by 1050 hours Layla would not have died. The NHS Trust says that it interpreted the CTG properly and denies liability and contends that the care given to Mrs Wells was of an appropriate professional standard.
3. It should be noted that this case is not a case about failing to provide advice to Mrs Wells about the risks of continuing with the pregnancy and not having an earlier C section, compare Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 WLR 768. Some evidence at trial suggested advice should have been given to Mrs Wells about the risks of continuing with the pregnancy, which would have been balanced against the risks of having a C section. An example of this evidence was answer 20 of the joint statement and there was some oral evidence at trial to the same effect. A Montgomery type claim has not been pleaded, and there was no evidence from Mrs Wells about what she would have done had she been given any such advice. It was confirmed at trial that such a claim was not being pursued.
4. Mrs Wells and Mr Smith claim damages for bereavement as a result of Layla's death in the sum of £11,800 and funeral expenses of £1,049.95. The quantum of these claims is agreed if liability is established.
5. Mrs Wells and Mr Smith also bring claims for psychiatric injuries, namely an adjustment disorder of mild to moderate degree lasting 6 months, suffered as a result of the death of Layla, and £500 for the cost of 3 sessions of bereavement therapy. The NHS Trust accepts that Mrs Wells and Mr Smith suffered an adjustment disorder, but deny liability for that injury and dispute the quantum of the claim made for the psychiatric injury. There is a dispute between the parties about whether Mrs Wells is a primary or secondary victim for the purposes of the claim for psychiatric injury and whether Mr Smith (and Mrs Wells if she is a secondary victim) can satisfy the preconditions for such a claim.

Amendment to the Particulars of Claim

6. At the beginning of the hearing Mr Neil Davy on behalf of the NHS Trust submitted that part of the claim as advanced in the Claimants' Skeleton Argument had not been formally pleaded. The NHS Trust was able to deal with the point and it was common ground that permission should be given to Mrs Wells and Mr Smith to amend the Particulars of Claim. This was to plead reliance on what were said to be repetitive shallow decelerations, and that the fact that the nadir of the decelerations was below 100 beats per minutes ("bpm") as supporting the requirement to have carried out an earlier C section. The costs of that amendment were reserved.

The evidence at the hearing

7. The evidence from Mrs Wells and Mr Smith was not challenged, and so their witness statements stood as their evidence.
8. I also heard oral evidence from: David Howe ("Mr Howe"), the consultant in feto-maternal medicine employed by the NHS Trust who was the obstetric consultant on duty for the labour ward on 20 July 2015; and from Alexander Taylor ("Mr Taylor") who was the specialist Registrar (or formally the specialist Trainee Year 6 in Obstetrics and Gynaecology) on duty on 20 July 2015 and who is now a consultant employed by Plymouth Hospitals NHS Trust.
9. I heard oral expert evidence about the management of Mrs Wells' pregnancy from Edwin Chandraharan ("Mr Chandraharan"), a consultant Obstetrician and Gynaecologist at St George's Healthcare NHS Trust in London, who has worked for that NHS Trust since 2005. He is also the lead for clinical governance in Obstetrics and Gynaecology and he is clinical director for Women's Services. He has particular expertise in fetal monitoring and conducts courses on CTG for consultants and midwives. He has written chapters in textbooks on CTG and has written a number of peer reviewed articles on CTG, reference to some of which was made in the evidence. I also heard oral expert evidence on the same issues from Duncan Irons ("Mr Irons") a consultant in the department of Obstetrics and Gynaecology at University Hospital of North Durham and who was clinical director for the period 2001-2006. He is a reviewer for National Institute for Clinical Excellence ("NICE") guidelines.
10. Mr Chandraharan and Mr Irons had produced a joint statement dated 13^th April 2015, and Mr Chandraharan produced a further clarification of his position on 5^th June 2015.
11. There was a post mortem report from Dr Holden, a consultant paediatric pathologist dated 4 November 2010. This report had been prepared for the Coroner for the purposes of an inquest into Layla's death, and it was relied on by the NHS Trust in its own internal inquiries which led to the production of its Root Cause Analysis Investigation Report. The Claimants' solicitors served a hearsay notice in relation to that post mortem report, noting that the NHS Trust had relied on the post mortem. No counter notice was served, and it appeared that the findings in the post mortem report were likely to be common ground at trial. In the NHS Trust's Skeleton Argument it was suggested that an important conclusion of the post mortem to the effect that Layla had suffered hypoxic insult "at least one hour prior to death" and therefore at least 30 minutes before birth by C section was wrong. Mr Mark Lomas on behalf of Mrs Wells and Mr Smith suggested that I should take little account of the challenge, because the NHS Trust had not asked for Dr Holden to attend and had only challenged it late. Mr Davy on behalf of the NHS Trust suggested that I should give little weight to the post mortem report because I had not heard Dr Holden give evidence. My approach to the post mortem report will be to do the best that I can, knowing that this was a report produced by the NHS Trust and relied on by the NHS Trust for the purposes of the inquest and its own inquiries, but recognising that a late but important point about the compatibility of the findings in the post mortem report with the cord gas analysis has been raised. In carrying out this task I have the disadvantage of not having seen Dr Holden give evidence or having had the benefit of any further explanations that Dr Holden might have been able to give.
12. I also had reports and answers to written questions from Dr Morgan O'Connell, a psychiatrist, on the adjustment disorder suffered by Mrs Wells and Mr Smith. Dr O'Connell's report and answers was agreed. Dr O'Connell had been a consultant psychiatrist at the Royal Navy Hospital in Haslar and is now in private practice.
13. In addition to the medical notes set out in the trial bundle at the hearing I was also provided with a copy of the CTG trace which commenced at 0827 hours and which continued (albeit for some interruptions which will be addressed below) until about 1119 hours.
14. I will set out material parts of the evidence when addressing the issues raised by the claim.
15. The case was listed for two days, having regard to issues of proportionality and cost, and it was completed in two (very full) days with oral submissions supplemented by written submissions. I am very grateful to Mr Lomas on behalf of Mrs Wells and Mr Smith and Mr Davy on behalf of the NHS Trust, and their respective legal teams, for their submissions and assistance.

Relevant guidance

16. Both sides made reference to the NICE quick reference guide "Intrapartum Care: Care of healthy women and their babies during childbirth" issued in September 2007 ("the NICE Guidance").
17. The NICE Guidance provided details of: what maternal factors might contribute to an abnormal trace; what to be done when there was meconium stained liquor; what features of a trace would be reassuring, non-reassuring and abnormal; and what actions should be taken in the event that traces were pathological. I will refer to the relevant passages when dealing with the evidence. Both sides made the point that the CTG needed to be looked at as a whole, and that the NICE Guidance provided important guidance but could not provide a complete answer to what ought to be done and what was being shown by the emerging clinical picture.
18. Reference was also made to "The Use of Electronic Fetal Monitoring" evidence based clinical guideline number 8 issued by the Royal College of Obstetricians and Gynaecologists ("the EFM Guidance").
19. There was further reference to a number of articles including an article written by Mr Chandraharan with Professor Arulkumaran headed "Prevention of birth asphyxia: responding appropriately to cardiotocograph traces. Best practice & research clinical obstetrics and gynaecology".

Relevant principles of law relating to claim for negligence

20. The relevant principles of law which relate to the claim for negligence are common ground between the parties, and I am therefore able to summarise them very shortly. The doctors owed a duty of care. Mrs Wells and Mr Smith have the obligation to show, on the balance of probabilities, both a breach of duty of care on the part of the doctors and that the breach of duty caused loss. The NHS Trust is vicariously liable for the actions of the doctors against whom complaint is made.
21. A doctor is liable if he fails to act with the reasonable care and skill expected of a reasonable, prudent and competent doctor. A doctor does not act in breach of duty if he acts in accordance with a proper, responsible and logical practice merely because there is a body of opinion which takes a contrary view.

The admission and subsequent events on 20^th July 2015

22. Much of the factual background was common ground and I have set out material parts of the background below, which unless indicated otherwise are my findings of fact. Mrs Wells went into labour at 0300 hours on 20^th July 2015. She began to experience contractions which were regular and the baby was moving vigorously. Mr Smith was with her, and the hospital was phoned at 0700 hours to warn them that Mrs Wells was coming in. Mrs Wells had blood on her underwear and brought that in to show the midwife.
23. Mrs Wells and Mr Smith arrived at the hospital at about 0800 hours, having been driven in by Mrs Wells' father and stepmother. The evidence establishes that the ward was busy that day and Mrs Wells was taken to a corner room which just had a bed in it. Carrie Packwood ("Ms Packwood") was Mrs Wells' midwife.
24. A CTG was started at about 0827 hours, and it is common ground that this was an appropriate response to the vaginal bleeding. The CTG showed that Layla's heart rate was about 155 bpm which was within the normal range but higher than the previous reading of 130 bpm at a clinic attended by Mrs Wells. Ms Packwood had also written "? fetal tachycardia" referring to the possibility of an increased FHR. There was a deceleration at 0840 hours.
25. A vaginal examination was carried out at 0855 hours and showed a cervical dilation of 1-2 cm. Mrs Wells was seen by Mr Taylor but there is not an exact note of the time at which he saw Mrs Wells. The notes of this visit were written up by Dr Rust, who was the career senior house officer and who was scribing for Mr Taylor. He recorded "BP prev raised – now settled. Asked to R/V trace". Further notes showed a diagram of Mrs Wells' abdomen and noted what proportion of the head was palpable. It was recorded that there was no more vaginal bleeding. The CTG was analysed, and it is apparent that this analysis must have taken place after 0856 hours because there is a reference to the drop in the FHR which occurred after 0856 hours when there was a deceleration, and when the FHR recovered only to 120 bpm. It was noted that there had been a significant drop "now 120 from 160 after vomiting and decel." Variability was noted to be greater than 10, acceleration was present, deceleration was occasionally variable, lasting 2 minutes, overall it was noted that the trace seemed to have settled, and Mr Taylor was happy with the trace. The plan was to continue and an IV cannula was inserted in case of an emergency developing, with a review after theatre with an unrelated case.
26. It is common ground that the CTG trace showed a deceleration starting at 0856 hours and that the precipitating cause was vomiting. It was agreed at the joint meeting that this deceleration lasted for 6 minutes, followed by a recovery. In his oral evidence Mr Irons said that he had now had access to the original trace, and that it might be 2 periods of deceleration of 2 minutes duration rather than 6 minutes, although he was still happy to agree the 6 minutes with which he had agreed at the joint meeting. I saw the original trace, and there is no doubt that it is easier to read than the photocopied trace, but Mr Lomas was right to point out that there did not appear to be any particular feature which was not on the photocopy which was on the original trace. I therefore find that there was a deceleration, precipitated by vomiting, which lasted for 6 minutes. The FHR did not return to its earlier level until 0928 hours and there is a dispute about how this should be characterised and I will address this when making my findings on the expert evidence.
27. Mr Howe, who had started duty at 0830 hours that morning, reviewed Mrs Wells at 0950 hours. His note recorded that a vaginal examination had been carried out at 0855 hours. He also recorded "clear liquor draining".
28. The issue of whether there was clear liquor draining is relevant because Mrs Wells and Mr Smith rely on it as showing that if clear liquor was draining at 0925 and meconium was recorded at 1000 hours, the meconium must have been passed between those times. There was some suggestion that, notwithstanding the notes, there could be no certainty that there was clear liquor draining. Mr Howe said that he had noted a report that was from a midwife and that the note on the trace made by the midwife at about 0925 was "? SROM". It is common ground that this meant "query spontaneous rupture of membrane". This suggests that the midwife might have been less confident of the report that there had been clear liquor draining than Mr Howe had previously understood. The notes also show that the membranes were ruptured at 1000 hours which also suggests that they were not fully ruptured before. There was evidence showing that it is possible to get false reports of liquor draining, and that it is possible to get some drainage of liquor from a partial rupture, which might then get blocked by movement of the fetus. In my judgment the best that I can do is to rely on the note which was made at the time, which does report that there was clear liquor draining, and I find that there was clear liquor draining at around 0925 hours. This must mean that the meconium was passed after 0925 and before it was noted at 1000 hours.
29. Mr Howe also recorded that the CTG showed a variable baseline which was initially 150 bpm and then 140 bpm. Mr Howe said that at 0900 hours there had been a drop to 110-120 bpm following vomiting by Mrs Wells. He also noted "Good STV" meaning good short term variability. Mr Howe recorded at "9.45 ? loss of contact, ? deceleration". Mr Howe noted that there had been a better pick up since 0950 hours but increased short term variability. His plan was "Plan VE and FSE" meaning vaginal examination and fetal scalp electrode ("FSE").
30. Mr Howe signed the trace at 0950 hours. It is now common ground that the plan for a vaginal examination and to place a FSE so that a better trace could be obtained was reasonable.
31. The vaginal examination was carried out by Sister Purkiss who found the membranes intact and ruptured them so that a FSE might be applied. At about 1000 hours Mrs Wells' waters were broken and there was significant meconium in the water but Mrs Wells was again reassured. Mrs Wells reported that she had been transferred to a different room that was properly equipped.
32. Mrs Wells was seen by Mr Howe again at 1020 hours, although Mrs Wells put the time at approximately 1025 hours. Mr Howe explained that he had returned to review the trace once the quality of the reading was better. He signed the trace, and noted that it had improved with a baseline rate of 150-155 bpm, normal variability, accelerations present and no decelerations since Mrs Wells had been last seen. After FSE applied the FHR showed good variability.
33. The visit was recorded by Dr Rust who was accompanying Mr Howe. Mr Howe said that he did not consider that meconium present in labour was an indication for an early caesarean section and referred to the NICE Guidance which provided that "significant meconium-stained liquor" and the action which was "advise continuous EFM" which was being undertaken. Mr Chandraharan contends that a C section should have been asked to be carried out at 1020 hours, which would have meant delivery by 1050 hours, and I will address this point later.
34. At 1028 hours there was a deceleration but a recovery. Mr Taylor reviewed Mrs Wells at 1030 hours and noted 1 deceleration, good variability, contracting well, thick meconium, 3 centimetres, a suspicious CTG and "we need to keep close vigilance over next 30-40 mins". Mr Taylor said that the CTG was suspicious because of isolated decelerations in the fetal heart rate, but was reassured by the good variability of the CTG.
35. Mrs Wells thought it was just after 1030 hours that the midwife became concerned because the CTG was abnormal and reported to Mrs Wells that she would press the emergency buzzer and that Mrs Wells would be going to theatre for a caesarean section shortly. In fact the CTG trace shows that it was at 1040 hours that there was a deceleration with a sloped recovery which showed variability.
36. Mrs Wells recalled that some doctors arrived and Mrs Wells thought that she was given medication in readiness for a caesarean section, but in fact the notes on the trace show that had happened a bit before at around 1025 hours. Mrs Wells said that she continued to be sick and was very uncomfortable throughout.
37. The notes show that at 1045 hours Mr Howe reviewed the CTG again. He recorded "contracting spontaneously 4-5/10" being a reference to the frequency of Mrs Wells' contractions. The note continued "Since FSE applied, baseline 150 bpm. STV 10-15 bpm. Thick meconium draining. 2 decelerations @ 10.28 and 10.40. Second deceleration – slow, recovering over 3 minutes. Rpt VE by Dr Rust – 4 cm dilated. Thick cervix. Head still high. Baseline now recovered to 150 bpm. Need FBS".
38. It was common ground that at this stage the trace was pathological. The NICE Guidance suggested that a Fetal Blood Sample ("FBS") should be obtained and this was the action which Mr Howe directed should be carried out, but whether a FBS should have been carried out was an area of controversy between Mr Chandraharan and Mr Irons, and I will address this point later.
39. At about 1100 hours Mr Taylor arrived to do what Mrs Wells understood was a scratch test to Layla's head which was the FBS. Mr Howe said that he understood that Mr Taylor made two attempts to obtain a FBS. Mr Taylor said that he had been involved with a major gynaecological emergency in the recovery area of theatre at the time but had arrived within 15 minutes of notification and attempted to obtain the FBS. Mr Taylor said that he had considerable experience of obtaining a FBS and he said that after attempting to do the FBS in this case he did not pursue it. In his note timed at 1115 hours Mr Taylor recorded that he was unable to obtain the FBS because of hair, high head and meconium. In the post mortem it was noted that the FBS had caused a mark and haemorrhage. It was also suggested on the evidence that this might have been caused by natural pressure during contractions but I consider it more likely than not to have been caused by the FBS. This is because the extent of the area was more compatible with having been caused by the FBS than with natural pressure on the then available opening during contractions.
40. Mr Taylor discussed the inability to obtain the FBS and because the trace remained suspicious due to recurrent decelerations he decided that Layla should be delivered by C section. His note recorded that his impression was the CTG was non reassuring for under 2 hours, there was thick meconium, there was the inability to get the FBS and that this was a category 2 C section.
41. At 1120 hours Mrs Wells recalled that she was told that she was going to have a caesarean section and she was given the appropriate paperwork to sign. Mrs Wells was taken to theatre, given an epidural and Layla was delivered at 1153 hours.
42. Mr Taylor recorded in his retrospective note of the caesarean section that "fast delivery of baby (easily delivered in 2 mins)".

Events after delivery

43. Mr Smith was with Mrs Wells. After delivery Mr Smith thought that he heard Layla gasp, although Mrs Wells thought that Layla did not make any noise when she was born. The note recorded immediate cord gases venous pH was 7.329 and 4.8 arterial pH. Dr Rust noted in the caesarean section that the baby was corded once.
44. Mr Taylor gave evidence that the cord was loose around Layla's neck and that Layla came away easily.
45. The evidence shows that when born Layla was blue, her muscles had poor tone, and there were no signs of respiratory effort. In these circumstances I do not consider that whatever it was that Mr Smith heard was a gasp from Layla.
46. Layla was taken to be examined, and more doctors came to work on Layla. Approximately 30 minutes after she had been born Mrs Wells and Mr Smith were told that Layla had died. Mr Taylor recorded in his note that there was an "unexpected poor response of baby to resuscitation".
47. After being sutured Mrs Wells was taken back to a private ward and Layla was laid on her bed. Mrs Wells, Mr Smith and Layla were left alone for about 30 minutes. Mrs Wells was deeply upset. Mr Smith contacted his parents to explain what had happened.
48. Mrs Wells and Mr Smith were told that the doctors wanted to perform a post mortem to find out why Layla had died. The doctors wanted to take Layla but Mrs Wells and Mr Smith wanted and were given more time, cuddling Layla and taking foot and hand prints. Mrs Wells spent all night with Layla and she was released for a post mortem the next morning. Mrs Wells was discharged on 22^nd July 2010.

Later events

49. Returning to the flat was, as Mrs Wells put it, "a horrendous experience", and Mr Smith reported that both Mrs Wells and he were "horrendously upset". The funeral was very difficult. Mrs Wells and Mr Smith became reclusive, but were assisted by their families.
50. Mrs Wells, who is a hairdresser, felt unable to work until 9 months after Layla's birth. When she returned to work she felt unable to cope with questions about Layla. Mr Smith said that he turned to drink to dull the pain.
51. Mrs Wells and Mr Smith have subsequently had a son in July 2011 and a girl in November 2013. Mrs Wells has returned to work.
52. Mrs Wells stated that she wanted an admission by the NHS Trust that they caused Layla's death and an apology. Mr Smith said that what both Mrs Wells and he wanted was an admission from the hospital that they should have delivered Layla much earlier and that had that happened, Layla would have lived.

Was there a breach of duty on the part of the doctors?

53. Mr Chandraharan considered that at 1020 hours a C section should have been required to be carried out. Mr Chandraharan considered that there was a failure to recognise evidence of ongoing hypoxia to the central nervous system on the CTG trace and to recommend delivery by 1020 hours so as to accomplish delivery by 1050 hours. He stated that this constituted substandard care. He referred to two signs of hypoxic events and stress namely a deceleration at 0840 hours and from 0856 to 0924 hours; the trace showing repetitive shallow decelerations; and thick meconium which was the likely product of fetal hypoxic stress and which he considered changed matters. He noted that Mrs Wells was still in the early stages of labour and birth could be 8 hours off and that all factors indicated urgent delivery.
54. Mr Howe at 1020 hours considered that the trace had improved and resolved to continue labour. Mr Irons considered that this was a proper response to the trace. It is necessary to consider a number of factors which led Mr Chandraharan to his opinion.
55. There was a considerable dispute between Mr Chandraharan and Mr Irons about whether account should have been taken of the fact that the FHR had been reported at 130 bpm at the last clinic attended by Mrs Wells before 20 July 2010. It was common ground that FHR in a maturing fetus might be expected to fall and so it might be expected that the increase from 130 bpm to 155-160 bpm would be of significance. However the evidence also showed that when the FHR was measured in a clinic it not would be done by CTG trace, and the measurement would only be for a very short period. This meant that there might be a false comparison, for example if the measurement had been taken during a deceleration, and in this respect it might be noted that there were earlier and higher readings taken at earlier clinics. The literature and guidance did not seem to suggest that it was normal practice to compare FHR from a normal measurement taken in a clinic (as opposed to a measurement taken by CTG in a clinic) and Mr Howe, Mr Taylor and Mr Isoms were all clear that this was not a normal practice. In these circumstances I conclude that there was no requirement to take account of the earlier reports of FHR from the clinic.
56. Mr Chandraharan considered that at 0848 hours the CTG trace had a "wavy" unstable baseline fetal heart rate indicating ongoing hypoxia to the central nervous system. He also said that there was an absence of cycling. Mr Chandraharan referred to shallow repetitive decelerations. Mr Chandraharan suggested that an ordinary skilled obstetrician should have been aware that the absence of a stable baseline fetal heart rate and reassuring variability indicated hypoxia to the central organs and was associated with fetal acidosis. By contrast Mr Irons considered that the baseline heart rate was normal and the baseline variability was normal. Mr Irons considered that a flat CTG would have caused concern, not the CTG which was present. I will address this dispute when considering the effect of the deceleration which started at 0856 hours.
57. I turn next to the effect of the deceleration at 0856 hours. The position was complicated by Mrs Wells vomiting, which is recorded on the CTG, but as set out above I find that there was a deceleration which lasted for 6 minutes. Mr Chandraharan noted that the trace showed a drop from 160 bpm to a base or nadir at 80 bpm at 0900 hours and that although precipitated by vomiting, he considered that there was a sustained umbilical cord compression at the time as maternal vomiting would not lead to a prolonged deceleration with salutatory pattern. The fetal heart rate did not recover to its original baseline until 0928 hours, but there was a dispute between the experts about whether there could be a new baseline. Mr Chandraharan said that as vaginal delivery was not imminent he said a category 1 caesarean section call should have been activated.
58. In his oral evidence at trial Mr Chandraharan was very critical of this response to the CTG trace at 0856 hours. At one stage, albeit when being prompted in cross examination by Mr Davy, Mr Chandraharan contended that every reasonable doctor should have caused a C section to be carried out in response to the 0856 hours deceleration and that it was negligent for the doctors not to have done so. He later made it clear in further questioning that he did not maintain that stance, and that a reasonable prudent and competent doctor would have looked for signs of a recovery of the CTG, which there were within the relevant time.
59. The suggestion that every reasonable doctor should have carried out a C section in response to the 0856 hours deceleration was unsustainable because: (1) vomiting is a well known cause of an abnormal trace and its effect on the CTG needed to be taken into account; (2) there was a recovery of FHR to 120 bpm, which although not at the pre-existing level was within the normal range; and (3) the CTG showed good variability and it was common ground there were 4 contractions every 10 minutes, which was the expected frequency of contractions.
60. As to the first point Mr Howe noted that maternal vomiting was recognised as a factor which might result in a change of trace. Under the heading "Continuous EFM" in the NICE Guidance and in the box headed "Maternal factors that may contribute to an abnormal trace" is the statement "woman has been vomiting or had a vasovagal episode". Mr Irons said that a new baseline was established at about 0902 or 0903 hours which marked the end of the deceleration, and there was a logical explanation for the deceleration namely the vomiting. Mr Chandraharan noted that the fetus had its own autonomous nervous system and that vomiting would not lower the heart rate of the fetus on a continuous basis. This raised an issue as to the second point, about whether it was possible to have a new baseline.
61. As to the second point the FHR did recover to 120 bpm. This was within the normal range and in my judgment it is possible to have a changed baseline. This is because the EFM Guideline at page 11 under definitions defines "atypical variable decelerations" as "variable decelerations with any of the following additional components … continuation of baseline rate at lower level" (underlining added). The EFM Guideline therefore specifically contemplates the possibility of a new baseline. As Mr Irons pointed out, if there had been a prolonged deceleration from 0856 hours to 0928 hours it would have been essential to have rushed Mrs Wells for a C section there and then but, apart from when Mr Chandraharan was being pushed in cross examination, no one suggested that should be the case.
62. As to the third point Mr Irons noted that there was good variability on the CTG, and this certainly appears to be the effect of the CTG.
63. Mr Chandraharan's changing evidence on whether all reasonable practitioners should have carried out a C section in response to the 0856 hours deceleration gave me no confidence that he had appreciated the differences between: practices which he considered to be best practice; practices which he considered to be reasonable; and practices which no reasonable practitioner would carry out. This was particularly so in circumstances when it was apparent from Mr Chandraharan's evidence and his articles that he has a particular skill in the interpretation of CTG traces. It is apparent that Mr Chandraharan thought he could detect, albeit with the benefit of the hindsight of the final outcome and the post mortem report, changes which he considered led through to the final result. An example of this was his identification of repetitive shallow decelerations which are not highlighted as a problem in the NICE Guidance. However in my judgment he was not able to set aside that hindsight and look at the CTG trace through the eyes of reasonably competent and prudent doctor when reviewing it in the course of the morning. The need for care before relying on Mr Chandraharan's criticisms of the care provided to Mrs Wells is further supported by his approach to the issue of fetal blood samples ("FBS") set out below.
64. In my judgment Mr Chandraharan's reference to the "wavy" nature of the CTG trace seemed to me to have been formulated with the benefit of hindsight. There was nothing in the NICE Guidance to suggest that the "wavy" nature of the CTG was likely to be a problem.
65. The same is true of Mr Chandraharan's reference to the absence of cycling on the trace. Mr Chandraharan took this as a warning of the problems that would later occur. However again there was nothing in the NICE Guidance which suggested that the absence of cycling, as explained by Mr Chandraharan, was a problem. It is well known that fetuses will go through stages of being awake and asleep, and that being asleep may be an explanation for a flattened baseline for up to 40 minutes as indicated in the guidance, but Mr Chandraharan was suggesting that there should be cycling as he explained it, and its absence was a problem. This was all evidence produced with the benefit of hindsight, and was not indicative of any real appreciation about how a reasonable doctor might interpret the CTG trace on the relevant morning.
66. Mr Chandraharan also said that the CTG had become saltatory, meaning an increased baseline fetal heart rate variability of greater than 25 bpm. It was agreed that there was a brief saltatory pattern shown for 4 minutes between 0856 and 0920 hours. Mr Chandraharan, in further comments after the joint meeting, contended that there were other saltatory patterns and periods. Mr Chandraharan suggested that Mr Howe should have understood that the saltatory pattern was due to a rapidly evolving hypoxic stress and activated a category 1 caesarean section as vaginal birth was not imminent. However the reference to a saltatory pattern was neither in the NICE Guidance nor indeed in the 2014 update of the NICE Guidance. Mr Chandraharan identified some parts of the trace as saltatory when they did not show variability of greater than 25 bpm. In my judgment Mr Chandraharan's reliance on the saltatory nature of the CTG was very interesting, and may be the basis for further research in the understanding of CTG traces but it is not a basis on which there can be any fair findings against Mr Howe or Mr Taylor.
67. In these circumstances in my judgment there was no sustainable criticism to be made of the care provided to Mrs Wells during or in response to the 0856 hours deceleration.
68. Mr Chandraharan relied on decelerations occurring at 0922 hours, 0928 hours and 0940 hours. However Mr Irons noted that these were all periods where there were interruptions to the trace. Having looked at the periods, and having heard the evidence about them it is in my judgment impossible to draw any reliable inference from the 0922 reading because a continuation of the trace at the top of the chart shows, according to the evidence, that the machine was not reading, although it looks as if there might have been a deceleration, there was a proper response namely an adjustment of the transducer. The further readings at 0928 and 0940 show that it was difficult to get proper readings, but they did not form the basis for criticising the care provided. There was a proper and reasonable response to the difficulties in getting readings, namely the use of the FSE.
69. Mr Chandraharan particularly relied on the fact of meconium as making it necessary to carry out a C section because birth was some 6-8 hours away. The evidence established that meconium occurs in about 20 per cent of deliveries, and that the NICE Guidance shows that once there is meconium there should be monitoring by CTG trace. This was occurring. The suggestion that once there was meconium everything changes ignored the NICE Guidance. The fetus was being supplied with oxygen through the umbilical cord, and meconium is very unlikely to cause problems unless it is ingested in utero through gasping caused by hypoxia. However even with all the matters identified above there was in my judgment no indication apparent to the reasonable practitioner of hypoxia.
70. Mr Chandraharan was very critical of the decision to carry out the FBS. Mr Chandraharan considered that no responsible body of obstetricians would support performing a FBS in view of the given clinical picture, stage of labour as well as the presence of thick meconium staining of liquor. He considered that there was no evidence that a FBS improved outcomes, and he considered that it should never be obtained. The NICE Guidance set out that the proper response to a pathological trace was to obtain a FBS. Mr Chandraharan relied on the evidence collated and analysed in a document called the "The Cochrane Collaboration" which suggested, as part of a subgroup analysis in the review, that FBS did not improve outcomes. As a result of his reliance on the Cochrane Collaboration Mr Chandraharan considered that the 2008 NICE Guidance was wrong to suggest that FBS should be obtained once that research was out there, and he maintained his position notwithstanding the fact that the 2014 NICE Guidance, which postdated the events which gave rise to this case, repeated the advice. Mr Chandraharan was critical of a member of the team producing the NICE Guidance who he considered to have had a disproportionate influence on the Guidance. The effect of this approach is that Mr Chandraharan was saying that there was a practice by a body of doctors who were acting in accordance with the NICE Guidance who were negligent. It is obviously possible to show that a body of practitioners acting in accordance with accepted standards are negligent, see Bolitho v City and Hackney HA [1998] AC 232, but it is necessary to show that the accepted standards had no logical basis, or were not based on a proper understanding of risks and benefits, or had reached no defensible conclusion. In this case taking a FBS allows the doctors to have a much better idea of the actual condition of the fetus, so that the best decision can be made. There is a logical reason for having the best evidence relating to the state of the fetus because, as the evidence shows, a C section carries risks to a mother. In order to make a fair assessment good information is required. The fact that the Cochrane Collaboration did not show that outcomes were very different with the FBS did not mean that it was not a reasonable practice to undertake one. The fact that the NICE Guidance in 2007 and the same Guidance in 2014 had suggested a FBS should be taken was strong evidence of the reasonableness of undertaking the FBS.
71. In the Claimants' written closing submissions it was suggested that the NHS Trust could not have it both ways, relying on NICE Guidance for one thing (going on to perform FBS) but not for another, which is not treating the whole of the period of 0856 hours to 0928 hours as a prolonged deceleration. I do not consider that to be an accurate representation of the position. The NHS Trust is relying on the NICE Guidance for the purposes of taking the action of a FBS where there was a pathological trace. As to the issue of a response to the deceleration at 0856 hours if there was a prolonged deceleration from 0856 hours to 0928 hours there should have been an urgent birth. However there was not a prolonged deceleration within the meaning of the NICE Guidance because it is possible to have a new baseline for the reasons given above. Further Mr Chandraharan accepted (see above) that reasonable practitioners might not carry out an urgent birth in response to the CTG at 0856 to 0928 hours.
72. In all these circumstances I do not accept the criticisms made by Mr Chandraharan of Mr Howe's actions at 1020 hours, or the criticisms made of Mr Taylor. This is because Mr Chandraharan has been influenced by hindsight and placed interpretations on the CTG which would not have been shared by a reasonable practitioner at the time. Mr Chandraharan has been inconsistent about what would have been a reasonable response to the 0856 hours trace. Mr Chandraharan has shown that he is willing to condemn as negligent all doctors who accept and follow NICE Guidance on FBS in circumstances where there appears to be a logical reason to take FBS. I accept the evidence of Mr Irons that the actions of Mr Howe and Mr Taylor were in accordance with reasonable practice. The taking of the FBS was in accordance with reasonable practice. There was no breach of duty on the part of Mr Howe or Mr Taylor, or the NHS Trust. For these reasons I will dismiss the claim.

Causation

73. I will address the issue of causation in case it becomes relevant. The NHS Trust rely on the venous cord gas analysis and arterial cord gas analysis, showing oxygenated blood, to show that there was no hypoxia before birth, and that any delay in carrying out the C section did not cause the aspiration of the meconium.
74. This raises an issue about whether the cord gas analysis was measuring Layla's blood or the cord was so tightly wrapped around Layla's neck that the cord gas analysis was in fact the measurement of Mrs Wells' blood. The evidence shows that Layla was "corded" once, and Mr Taylor, who was present when the caesarean was performed, supervising Dr Rust, said that the cord was loose around the neck. I accept this evidence from Mr Taylor. Although Mr Chandraharan suggested that the cord might get tightened during contractions, he did not demonstrate with the doll used for this purpose in the witness box any clear way in which the cord would not have contained part of Layla's blood.
75. It was suggested by the NHS Trust that Dr Holden could not have been aware of the results of the cord gas analysis, and that I cannot rely on Dr Holden's analysis that there was hypoxia before birth. I reject that suggestion. It was apparent that Dr Holden had access to the full medical records, including the cord gas analysis. Dr Holden's report sets out convincing evidence (in particular a petechial haemorrhage in the right eye, epicardial petechial haemorrhages and hippocampi containing shrunken neurones within the hyperchomatic nuclei in the CAI region which were symmetrical and well defined) showing hypoxia of some duration before birth. I have not heard Dr Holden questioned, but the physical findings support the conclusion that there had been a hypoxic change at least an hour before death, namely at least before about 1133 hours. In these circumstances I accept the evidence from the post mortem report and can only conclude that there is no ready explanation for the cord gas analysis results. Dr Holden suggested that the hypoxia was an intrauterine insult, rather than occurring following delivery. The cause of this hypoxic insult was not known, and is another matter which was unexplained on the evidence before me.
76. In these circumstances it seems probable that the aspiration of the meconium occurred in response to hypoxia, which the evidence showed was a known cause of fetal gasping. This occurred after meconium was passed so it must have been at some time after 0925 hours (when clear liquor was noted to be draining) and before 1133 hours (at least one hour before death). As to when in this period it occurred is very difficult to say on the evidence. Mr Chandraharan suggested that it occurred around the time of the decelerations occurring at about 1112 hours, 1126 hours or 1134 hours. Mr Chandraharan referred to a saltatory pattern, indicating ongoing hypoxia, and he supplemented his evidence in the joint statement in this respect. Mr Irons said in the joint statement that he could not help beyond saying it was after the meconium had occurred, but in evidence pointed to the CTG at 1040 hours, which does show a more shallow recovery after the deceleration.
77. On the issue of causation I prefer Mr Chandraharan's evidence. This is because he has acknowledged expertise in reviewing CTG's. Although I have rejected his evidence about saltatory patterns as a basis for criticising doctors instrumental in Mrs Wells' care, it does seem to me to have a logical base and is at least consistent with Dr Holden's evidence in the post mortem report. Mr Irons position was that he could not say, although he pointed to features relating to the 1040 hours deceleration, and in these circumstances I am left with Mr Chandraharan's analysis. I therefore consider it likely that the aspiration of meconium occurred at some time after 1100 hours. If there had been a breach of duty in failing to ask at 1020 hours for a C section to be carried out, which would have been carried out by 1050 hours, causation would have been established.

Psychiatric injuries

78. I will set out my conclusions on the claim for psychiatric injuries should they become relevant.
79. Dr O'Connell noted that the issue to be addressed in relation to Mrs Wells was to comment on her mental health and to identify "whether she suffered any adverse psychological consequences, as a result of the death of her daughter Layla".
80. Dr O'Connell reported that he had not explored in detail with Mrs Wells the events in her statement to avoid causing distress. This was understandable, but it did make it difficult for me to address whether there was any shocking event which had caused the adjustment disorder. Dr O'Connell recorded matters from Mrs Wells' medical notes and concluded that Mrs Wells had developed an adjustment disorder lasting for 6 months of a mild to moderate degree. This was not a normal grief reaction. Bereavement therapy would help to address these issues.
81. Dr O'Connell stated that the issue to be addressed was Mr Smith's current mental state and the psychological consequences, if any, of the death of Layla. Dr O'Connell referred to Mr Smith's statement about being present throughout the birth and made reference to his previous history of self harming and depression, before referring to his grief in the aftermath of Layla's death. Dr O'Connell concluded that Mr Smith experienced symptoms consistent with a diagnosis of an adjustment disorder lasting for a period of 6 months which was of a mild to moderate intensity. Bereavement therapy with his partner would help to address these issues.
82. The first issue in relation to this was whether Mrs Wells was a primary or secondary victim at the material time. It is apparent that, if liability had been established, there would have been a negligent failure to take Mrs Wells to have a C section by 1050 hours. At that time it is common ground that Mrs Wells and Layla were still (various exceptions apart) considered as one person, see Wild v Southend University NHS Foundation Trust [2014] EWHC (QB) at paragraph 22. However it was noted that Layla was born alive, and that the evidence showed that Mrs Wells had suffered because of Layla's death.
83. In my judgment Mrs Wells was a primary victim. This is because the negligence (if it had been established) would have occurred when Layla and Mrs Wells were still one. That meant that Layla would (albeit unknown to Mrs Wells) have aspirated the meconium, which later caused her death, when Mrs Wells and Layla were one person. This aspiration of the meconium caused Layla's death and caused the adjustment order suffered by Mrs Wells. Although some of the distinctions in this area of law are arbitrary it does seem to me that in such circumstances Mrs Wells is a primary victim.
84. In these circumstances Mrs Wells would have been entitled, if liability had been established, to general damages. I accept Dr O'Connell's evidence and find that there was adjustment disorder of mild to moderate degree lasting for 6 months, and that 3 sessions of bereavement therapy costing £500 are necessary. Having regard to the Guidelines, and the comparable cases referred to by both parties, in my judgment a proper sum for that would have been £7,000. Mrs Wells would also have been entitled to counselling costs of £500.
85. It is common ground that Mr Smith was a secondary victim. It is common ground that in order to succeed in this claim as a secondary victim Mr Smith needed to satisfy the control mechanisms derived from Alcock v South Yorkshire Police [1992] 1 AC 310. The control mechanisms have been described as "both arbitrary and pragmatic" see Liverpool Women's NHS Foundation Trust v Ronayne [2015] EWCA Civ 588; Times 8 July 2015 at paragraph 11. It is necessary in this case to show: a close tie of love and affection to the person killed; that Mr Smith was close to the incident in time and space; that he must have directly perceived the incident, rather than hearing about it from a third person; and that there must have been a sudden, shocking event arising from witnessing the death of or extreme danger to Layla. The issue in Mr Smith's case is whether there was a sudden shocking event arising from witnessing the death of or extreme danger to Layla.
86. In Alcock there was reference to shock being a "sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind". What is "horrifying" must be judged by objective standards and by reference to persons of ordinary susceptibility. The need for a shocking event was emphasised in Ward v Leeds Teaching Hospital NHS Trust [2004] EWHC 2106 (QB). This was satisfied in a case where a mother witnessed a fit and was shocked by the sequelae because she had been reassured by incorrect medical advice. That established that a sequence of events could be shocking. In this case although no one can doubt the profound distress suffered by Mr Smith (and Mrs Wells) over the events of 20 July 2010 there was in my judgment no shocking event. There was no assault on the senses. There was no sudden appreciation of an event, or perhaps the gradual dawning of realisation that her child's life had been put in danger, as in other cases. There was a C section, followed by the removal of Layla for efforts at resuscitation, which failed. The control mechanisms are part of the law and I am bound to give effect to them. I would therefore have rejected Mr Smith's claim for psychiatric injury.

Conclusion

87. For the reasons given above I find that there was no breach of the duty of care owed by the doctors and NHS Trust to Mrs Wells and Mr Smith, and I dismiss this claim.