High Court of Ireland Decisions

1. The Plaintiff in this case is Ian O'Mahony who was born on the 11th day of May 1987 and who accordingly is now 12 years old.

2. The first named defendant Mr. Tyndale is a person who has agreed to act as the nominee for and on behalf of the trustees, owners and managers of the Bon Secours Hospital which has it's principal offices at College Street in Cork and, for the purposes of these proceedings it has been acknowledged that the trustees, owners and managers of the hospital were, at all times which are material to these proceedings, responsible for the administration, control, management and maintenance of the hospital and for the provision of medical, specialist, nursing and other services at the hospital including maternity and neo-natal services.

3. The second named defendant Dr. David Corr is a medical practitioner and in particular is a consultant obstetrician and gynaecologist of considerable experience who is and has at all times which are material to these proceedings been in practice in the city of Cork where he has carried out the overwhelming majority of his obstetric and gynaecological treatments at the Bon Secours Hospital.

4. Ian O'Mahony is profoundly disabled, both physically and mentally, and in these proceedings he claims, through his mother and next friend Mrs Ann O'Mahony, that his disabilities result from brain damage caused:-

5. He seeks damages from the defendants to compensate him for the pain, distress and discomfort which he has endured and will endure by reason of his condition, the costs which he has incurred and will incur in order to pay for appropriate care, treatment, accommodation, and equipment and the losses and expenses which he has incurred and will incur by reason of the destruction of his capacity to lead a normal life.

6. On the evidence which has been adduced during the trial of this action the following facts are not in dispute:-

7. At a time which is disputed by the parties, Ian's heart rate dropped from about 140 bpm (beats per minutes) to 100 bpm which suggested the possible onset of a bradycardia comprising the partial deprivation of oxygen to Ian's brain and the response by Ian by way of compensation. Some seven minutes later Ian's heart rate fell to 60 bpm confirming the bradycardia and indicating that Ian's heart was no longer achieving the sort of output which was necessary and that he was suffering hypoxic stress and was not responding healthily or normally and in particular was not mounting a normal compensatory response.

8. Proceedings were instituted on behalf of Ian by the issue of a Plenary Summons on the 9th day of May, 1990 and in the Statement of Claim delivered on the 9th day of July, 1992 it was expressly pleaded on behalf of Ian that Mrs. O'Mahony "...on the 8th day of May, 1987...was admitted to the Bon Secours Hospital and on May 11th labour was induced and the Plaintiff was delivered by forceps. Following admission and prior to the next friend's labour and during labour and delivery the Plaintiff, then unborn, suffered hypoxia and brain damage and as a result the Plaintiff suffered and continues to suffer loss and damage." The particulars of negligence and breach of duty which were contained within the Statement of Claim largely comprised allegations of negligence (a) in failing to heed or detect the signs of intra-uterine hypoxia prior to Ian's birth, (b) in failing to deliver Ian immediately signs of foetal distress were discernible and, (c) in failing to have available appropriate specialist consultant obstetrical staff during Mrs. O'Mahony's labour.

9. On the 30th September, 1999 the following additional particular of negligence on the part of the defendants was delivered on behalf of Ian that is to say:

10. The trial of this action was adjourned after 13 days of hearing and at a stage whilst evidence was being adduced on behalf of the Plaintiff relative to the quantum of damages.

11. During the interval whilst the trial was adjourned, Ian was brought by his parents to Liverpool where he underwent a radiological examination of his brain by way of a Magnetic Resonance Imaging (hereafter referred to as MRI) scan and when the trial resumed the Plaintiff was given liberty to amend his claim against the hospital by delivering further and better particulars of negligence and breach of duty on the part of the hospital comprising allegations that the hospital, inter alia :-

12. The Plaintiff was not permitted to amend his claim against Dr. Corr.

13. In summary, Ian claims that his brain injury and consequent disability results from:-

14. The Defences which were delivered on behalf of the Defendants on the 20th day of October, 1992 and the 8th day of July, 1993 traversed the allegations which had been pleaded on behalf of the Plaintiff at the date of delivery of the Statements of Claim and on the 21st day of December, 1999 the hospital, by Order, delivered an amended Defence in which it expressly denied each and every additional particular of negligence which has been alleged against the hospital during the course of the trial and furthermore pleaded that there had been inordinate and inexcusable delay on the part of the Plaintiff in making those allegations of negligence and in alleging that Ian developed hypoglycaemia after his birth.

15. It was contended on behalf of the hospital that by reason of this delay the hospital had been prejudiced and would not be able to have a fair trial of the issues raised by these further allegations and accordingly would not be able to vindicate and protect its good name and reputation and to defend these proceedings adequately. It was claimed that it was unfair and contrary to natural and constitutional justice to require the hospital to attempt to defend itself against these allegations, having regard to the delay on the part of the Plaintiff and to the difficulty which the hospital has had and would have in obtaining relevant evidence.

16. However, at the trial of these proceedings the hospital did not seek to adduce evidence of any particular prejudice to the hospital arising out of delay on the part of the Plaintiff in making additional allegations of negligence so that in making its defence to the Plaintiff's claim the hospital did not seek to rely upon the allegations of delay and prejudice which were referred to in its amended pleadings.

17. In summary, it is contended on behalf of both Defendants that Ian is suffering from a catastrophic disability which is primarily a mental disability but which is development rather than traumatic in origin and it is expressly and vigorously denied by both Defendants that Ian sustained brain damage either by reason of an hypoxia ischaemic event at or immediately prior to his birth or by reason of the development of hypoglycaemia immediately after his birth or at any other time or at all. Furthermore, both the hospital and Dr. Corr contend that the system which was in operation in the Bons Secours Hospital in May of 1987 was perfectly adequate to deal with emergencies or potential emergencies during childbirth and was a system which was consistent with general and approved medical and administrative practices in maternity hospitals and maternity units throughout this jurisdiction and other comparable jurisdictions.

18. The issues which must be determined in this case are almost exclusively questions of fact and no novel or unusual principles of law arose for consideration throughout the 45 days whilst this case was at hearing.

19. I am conscious that the principles of law which must be applied to the issues which fall to be determined are those identified by Finlay C.J. in Dunne (an infant) -v- National Maternity Hospital [1989] I.R. 91.

20. It is unnecessary to recite those principles in detail herein although I should perhaps indicate that the most pertinent of those principles to the facts of the instant case are those identified by Finlay C.J. [at p 109] and described in the following terms:

21. As in all similar cases the burden of proof of negligence and breach of duty and of the

22. Finally I am required to take into account the following "broad parameters" which underline the establishment of the principles which apply to this case that is to say;

23. The issues as to liability in this case can be identified and most usefully determined in the following manner and order.

24. In her testimony, Mrs. O'Mahony stated that she had a clear recollection of what occurred during the period of approximately 45 minutes immediately prior to the birth of her son and of what occurred thereafter. In his testimony Dr. Corr made no such claim but candidly admitted that he had little if any recollection of the events immediately prior to and after Ian's birth [although he indicated that he had a clear recollection of the delivery itself].

25. Mrs. O'Mahony's recollection was that some five or ten minutes after full dilation (which she timed at 4.30 p.m.) whilst being assisted to push by two nurses, she noted a change in the tonal frequency and digital display of the CTG which caused considerable urgency amongst the nursing staff which she described as panic.

26. She stated that oxygen was administered to her and she received a pubic shave and thereafter (whilst still receiving oxygen and intravenous anaesthesia by way of an epidural drip and whilst still connected to the foetal heart monitoring machine) she was wheeled, in her bed, to a room which she believed to be an operating theatre. She said that the epidural block was removed and that Dr. Corr then "...sort of came in fast" dressed in non-medical attire and that she said "Oh, thank God you are here doctor, thank God you are here" and he responded "I was in my rooms and it is my job to get here fast".

27. She said that Dr. Corr then removed the oxygen and disconnected the foetal heart monitor before delivering Ian within a period which she estimated at four or five minutes.

28. In his testimony, Dr. Corr stated that Mrs. O'Mahony, by reason of her pre-eclampsia, fell into a moderately high risk category and that his normal management of such patients was to foreshorten the second stage of labour. His practice in such cases was to ask attending midwives to contact him when the patient became fully dilated so that he could come to the hospital and be available in the event of a crisis. He said that full dilatation did not convey any sense of urgency in such circumstances since it could be as much as two hours from actual delivery. He said that he would ".... normally like to get to the hospital.... within ten to fifteen minutes of being told..." of full dilatation but if he were told of a foetal bradycardia then he would like to be at the hospital within five or six minutes of receiving such notice.

29. His recollection was that he became aware of the foetal bradycardia whilst he was in the labour ward complex and he further believed firmly that he examined Mrs. O'Mahony in a room called the "first stage room" shortly after the onset of bradycardia and made appropriate arrangements to have her brought to a delivery room where he delivered Ian vaginally by forceps.

30. I have little doubt that both Mrs. O'Mahony and Dr. Corr were conscientious witnesses, using their best endeavours to give an accurate account of their respective recollections of events which occurred more than twelve years prior to their testimony. As I have already indicated, Dr. Corr, who, in the course of his practice, has delivered approximately 500 babies each year and who has dealt with countless emergency deliveries both before and after Ian's birth, candidly admitted in evidence that he only had a hazy recollection as to why he was in the hospital prior to Ian's birth and has no other recollection other than of the birth itself and his examination of Mrs. O'Mahony prior to the delivery.

31. On the other hand, the birth of her first child was of unique significance to Mrs. O'Mahony and, whilst, in common with every other mortal her recollection, with the passage of time, is unlikely to be accurate in every minute respect. I am satisfied that on the balance of probabilities her recollection of what occurred prior to Ian's birth was broadly accurate.

32. It follows that, as a matter of probability, Dr. Corr came to the hospital directly from his consulting rooms and, upon arrival in the labour ward, discovered that Ian had suffered a bradycardia. Although Dr. Corr believes that he examined Mrs. O'Mahony within the "first stage room", I believe that it is more likely that before his arrival she had already been transferred either to the delivery room or to the operating theatre by the attending nurses and midwives who, in a manner consistent with their practice, also transferred the foetal heart monitoring machine, the intravenous epidural drip and the oxygen.

33. I am satisfied that it is likely that Dr. Corr arrived in the manner described by Mrs. O'Mahony, examined Mrs. O'Mahony in a manner which he himself described, made the appropriate and correct decision to deliver Ian and delivered him expeditiously, properly and skilfully.

34. I am satisfied also that it is probable that one of the nurses or midwives who was then attending Mrs. O'Mahony telephoned Dr. Corr at his consulting rooms and notified him that Mrs. O'Mahony had achieved full dilatation and that in response to that notification Dr. Corr, within a comparatively short time but without any sense of urgency, left his consulting rooms and made his way to the hospital. It is possible that when Ian's heart rate dropped to 100 bpm and remained there for some minutes, the nursing staff made a further attempt to telephone Dr. Corr but found that he was already in transit between his consulting rooms and the hospital. In any event, it was probable that Dr. Corr did not arrive within the labour ward of the hospital until some time after 5.00 p.m. and Ian was delivered at approximately 5.15 p.m.

35. Throughout the trial of this action considerable emphasis has been placed upon what have been alleged to be absolutely precise timings which have largely been extracted from hospital records and notes. On the evidence, it is unlikely that the notes and entries which are relied upon comprise an absolutely precise record of the timing of the events which they purport to record but they are likely to be comparatively accurate and can be relied upon subject to that qualification as to precision.

36. If Dr. Corr was notified in his consulting rooms between 4.30 p.m. and 4.40 p.m. that Mrs. O'Mahony was fully dilated and if he did not arrive at the hospital until a short time after 5.00 p.m. then it follows that more than twenty minutes and less than thirty minutes elapsed between the time when he was notified and the time when he arrived at the hospital. As I have indicated, I am satisfied that it is probable that when Dr. Corr arrived at the hospital he was responding to notification that Mrs. O'Mahony had achieved full dilatation and that it was only when he arrived at the hospital that he discovered that Ian had suffered a bradycardia.

37. Although Mr. Clements, in his evidence, suggested that as a matter of practice a doctor should be present at and after full dilatation, he indicated that this was ".... because we have an undertaking to deliver the baby...." and not because the presence of a consultant obstetrician was necessary in the interests of the safe delivery of the baby. Furthermore, it was never suggested to Dr. Corr or to any other witness that the achievement of full dilatation gave rise to the requirement of immediate or speedy attendance by a consultant obstetrician or any particular measure of urgency and no evidence either expert or otherwise was adduced to that effect.

38. Accordingly, I am satisfied that as a matter of probability, Dr. Corr was notified between 4.30 and 4.40 p.m. that Mrs. O'Mahony had achieved full dilatation and that the interval of something over twenty minutes which elapsed between that notification and his arrival at the hospital was not unreasonable in the circumstances and did not fall short of the requisite standard of care which Mrs. O'Mahony was entitled to expect from Dr. Corr and did not represent a departure from the general and approved medical practice which applied to the circumstance in which Dr. Corr then found himself.

39. It follows further that Dr. Corr did not discover that Ian had suffered a bradycardia and was therefore at risk of intra-uterine hypoxia until he arrived at the hospital shortly after 5.00 p.m. and I am satisfied on the evidence (and indeed it is not disputed) that Dr. Corr delivered Ian as soon as was reasonably possible after signs of foetal distress became discernible to him.

40. The hospital which is located in Cork is a General Hospital which contains a maternity unit. The hospital has approximately 350 beds of which approximately 50 or 60 are contained within the maternity unit.

41. Approximately 40 consultant surgeons, physicians and other medical specialists are attached to the hospital, most on a full time basis and a few on a part time basis. In 1987 five consultant obstetricians and gynaecologists were attached to the hospital of whom three were full time and two were part time. In addition the hospital employed an Obstetrical Senior House Officer, two consultant paediatricians and three paediatric Senior House Officers.

42. The hospital, which apparently is the biggest private hospital in Western Europe is owned and run by the Order of Bon Secours which is the single biggest provider of health care in Ireland.

43. In 1987 Dr. Corr was a full time consultant obstetrician and gynaecologist attached to the hospital and his consulting rooms were located in Harley Court in Wilton in Cork. Dr. Corr estimated that in 1987 it would have taken between five and seven minutes to drive by motorcar from his consulting rooms in Harley Court to the hospital.

44. The system adopted by the hospital and which was in force in 1987 for dealing with emergencies or potential emergencies during childbirth required the attendance of a consultant obstetrician or gynaecologist within approximately ten minutes of the occurrence of the emergency. It was acknowledged that neither the Senior House Officer nor the nursing or midwifery staff were appropriately qualified to deal with such emergencies so that total reliance was placed upon the availability of a consultant obstetrician or gynaecologist within a very short time after the occurrence of the emergency.

45. Dr. Corr estimated that, if required, he could be in attendance in the hospital to deal with an emergency within ten minutes of notification and probably within seven minutes.

46. He also stated in evidence that the system adopted by the hospital and by it's consultant obstetricians included a firm arrangement whereby there was "...total backup from the other consultants that they will make themselves immediately available..." in the event of nurses or midwives having difficulty locating a particular consultant "...and we all worked within a close vicinity of the hospital."

47. Evidence adduced on behalf of the hospital confirmed this system and the fact that the consulting rooms of the other consultant obstetricians and gynaecologists were located closer to the hospital than Dr. Corr's consulting rooms and the rooms of three of the consultants were actually located within the hospital complex. It was estimated by Sr. Marian Kelly on behalf of the hospital that the average time within which a consultant should and would reach the labour ward following an emergency call would be less than five minutes.

48. She stated further that if a consultant, having been summoned, failed to arrive within five minutes he would be telephoned again and if not located then "... I would get the nearest consultant to me." Sr. Kelly stated in evidence that in 1987 there was a paging system within the hospital which required that consultants keep a pager in their possession at all times so that nursing staff, by dialling a number could activate the pager thereby alerting the consultant who was required to contact the hospital urgently.

49. Mr. Roger Clements, an eminent consultant obstetrician and gynaecologist who testified on behalf of the plaintiff, described this system as "...a perfectly reasonable system..." and whilst Professor William Thompson, who is a well known professor of obstetrics and gynaecology at Queen's University in Belfast, seemed slightly hesitant about the system he conceded that it is broadly in line with what he would expect.

50. In the light of my finding that the system adopted by the hospital was not prima facie defective and that Dr. Corr was entitled to expect the system to be operated efficiently it follows that Dr. Corr did not acquiesce or participate in a defective hospital system for dealing with emergencies or potential emergencies during childbirth.

51. It follows from the two findings which I have just made that the plaintiff has failed to discharge the onus of proving on the balance of probabilities that his condition and in particular his disabilities were caused or contributed to by reason of negligence or breach of duty on the part of Dr. Corr. Accordingly the plaintiff's claim against Dr. Corr is dismissed.

52. The system adopted by the hospital for the provision of appropriate specialist consultant obstetric staff to deal with emergencies during labour has been described by Dr. Clements as "...perfectly reasonable" because it provided for the attendance of a consultant obstetrician or gynaecologist within five or seven minutes after the onset of an emergency and certainly within ten minutes thereof. Testimony adduced on behalf of the hospital confirmed that this system was in operation and indeed that most of the consultant obstetricians who were attached to the hospital were available within consulting rooms which were actually on the hospital premises and that those who were not so available were located within a distance which would enable them to be present within the hospital and in attendance at an emergency within ten minutes of being contacted.

53. During the trial of these proceedings there was a considerable conflict of evidence between the parties as to precisely when Ian's heart rate dropped from a baseline of approximately 140 bpm to approximately 100 bpm. Having considered the evidence adduced on behalf of the parties carefully I am satisfied that there is a strong probability that Ian's heart rate dropped from a baseline of approximately 140 bpm to approximately 100 bpm at a time not before 4.40 pm and not after 4.45 pm on the 11th of May 1987. I think that it is likely that the words "fully dilated" were written by Dr. Corr upon the C.T.G. sometime after Ian's birth and probably during an attempted reconstruction by Dr. Corr of the period prior to Ian's birth and it may have represented Dr. Corr's estimate (at that time) of the time when Mrs. O'Mahony achieved full dilatation. It is clear from an entry on the partogram that full dilatation was achieved by Mrs. O'Mahony at 4.30 pm so that if the words "fully dilated" are written at the point (opposite number 77) on the C.T.G. when full dilatation was in fact achieved by Mrs. O'Mahony then Ian's heart rate at 4.30 pm was recorded at the point numbered 77 on the C.T.G. and his heart rate at 4.40 pm was recorded at the point numbered 78 on the C.T.G.

54. The history of Mrs. O'Mahony's labour is recorded in detail and with clarity and precision upon the partogram. The administration of oxytocin at 7 am on the 11th May, 1987 which is independently recorded in the nursing notes can be clearly identified on the partogram as having occurred at 7 am. The rupture of membranes with confirmation of clear liquor at 9 am which was referred to in the "Summary Case" can also be identified as can the frequency and extent of contractions throughout the duration of labour. Similarly the various stages of cervical dilation and foetal descent are timed with relative precision and those timings can be readily identified with clarity upon the partogram.

55. It is of some significance that the partogram records "epidural...(at)...10.50 am..." and furthermore records "...F.S.E...(at)...11.00 hrs..." (indicating the application of a foetal scalp electrode at 11 am.(

56. It is contended on behalf of the hospital that the entry "epidural at 10.50 am" was intended to denote the intravenous administration of a local anaesthetic called marcain through an epidural catheter into the spine and that the timing of 10.50 am indicated the moment when the anaesthetist first commenced the intravenous injection of marcain. It was further contended that up to ten or fifteen minutes would elapse before the anaesthetist could be satisfied that the anaesthetic was taking effect and furthermore that the procedures in relation to the administration of an epidural required the insertion of a catheter to control bladder function and that this similarly would take a certain amount of time. In addition it was agreed by the parties that Mrs. O'Mahony was transferred from one room (the first stage room) within the labour ward across the corridor to another room within the labour ward (the delivery room) and that the epidural was administered within the delivery room. It was claimed on behalf of the hospital that the entry "F.S.E. at 11.00 hours" indicated that the foetal scalp electrode which was intended to monitor Ian's heart rate was actually attached to his scalp at 11 am and that thereafter it would be necessary for Mrs. O'Mahony to be transferred back from the delivery room to the first stage room before the foetal scalp electrode could be connected to the foetal heart monitoring machine (so that the C.T.G. could commence to record) and so it was argued that the entry within the partogram provided authority for the proposition that the C.T.G. recording did not commence until some time after 11 am and probably not until approximately 11.15 am. If that proposition is correct and if the C.T.G. record of Ian's heart rate commenced at 11.15 am and not at 11 am then a careful analysis of the C.T.G. trace would lead to the inescapable conclusion that what was recorded at the number 77 on the C.T.G. (opposite to where the words "fully dilated" are written) represented Ian's heart rate at 4.45 pm 15 minutes after full dilatation (which occurred at 4.30 pm) and that what was recorded at 78 on the C.T.G. represented Ian's heart rate at 4.55 pm rather than at 4.40 pm.

57. I am further satisfied that it is likely that the foetal scalp electrode was attached to Ian's scalp at or about 11 am within the delivery room and that thereafter Mrs. O'Mahony was

58. Whilst I appreciate that the transfer of Mrs. O'Mahony from the delivery room to the first stage room would not have been a particularly speedy manoeuvre, since Mrs. O'Mahony was catheterised and was connected to an epidural drip and since it would require the lifting of Mrs. O'Mahony (who was then dead weight) onto a bed from one room to another, I do not believe it is likely that the transfer would have taken any appreciable time and indeed I believe that it is unlikely to have taken more that five or six minutes from the time when the foetal scalp electrode was attached to Ian's scalp (which as I have indicated I believe was probably at or around 11 am). Accordingly I am satisfied that on the balance of probabilities the foetal scalp electrode which was attached to Ian's scalp was connected to the foetal heart monitoring machine at approximately 11.05 am or 11.06 am on the 11th May, 1987 although as I have already indicated these times are not precise and could vary by a few minutes one way or the other.

59. Mr Clements, in his testimony was able to demonstrate by way of a careful analysis of the C.T.G. trace that if the record of Ian's heart rate at 4.30 pm (when full dilatation was achieved) was accurately shown at the point (opposite number 77) on the C.T.G. where the words "fully dilated" were written then the number 44 on the trace corresponded with 11 am, the first recording of the tocograph (record of uterine contractions) commenced fractionally after 11.03 am and the cardiograph (the record of Ian's heart rate) commenced at 11.05 am and was being well recorded at 11.06 am.

60. To my untutored eye the first recording of the tocograph appears to commence fractionally after 11.04 am (rather than 11.03 am) but the proposition advanced by Mr Clements leads to the clear conclusion that the foetal scalp electrode attached to Ian's scalp had been connected to the foetal heart monitoring machine at or before 11.03 am or 11.04 am and was recording satisfactorily by 11.06 am.

61. Having regard to my findings as to the timing of the epidural anaesthetic and the fitting of the foetal scalp electrode I think (as I have already indicated) that it is unlikely that the foetal scalp electrode was connected to the foetal heart monitoring machine before 11.05 am or 11.06 am in which case the first recording of the tocograph which is visible upon the C.T.G. probably commenced at 11.05 am or 11.06 am, the first recording of Ian's heart rate on the cardiograph (which is represented by a serious of four or five small dots) occurred at 11.07 am or 11.08 am and the first well captured cardiograph occurred at 11.08 am or 11.09 am.

62. In the light of the foregoing I am satisfied that while the evidence has not been able to perform the almost impossible task of establishing the precise moment when Ian's heart rate dropped to 100 bpm it has established that it is unlikely that Mrs. O'Mahony achieved full dilatation before 4.30 pm on the 11th May, 1987 and that it is probable that she achieved full dilatation between 4.30 and 4.35 pm on that date. It follows that the evidence has established that Ian's heart rate probably dropped from 140 bpm to 100 bpm at a time which was not before 4.40 pm and not later than 4.45 pm on the 11th May, 1987.

63. It is acknowledged on behalf of all the parties to these proceedings that Ian was born at 5.15 pm on the 11th May, 1987 so that the findings which I have just made leads to the conclusion that as a matter of probability Ian was born no earlier than thirty minutes and no later than thirty five minutes after the moment when his heart rate first dropped from 140 bpm to 100 bpm.

64. Prof. Thompson and Mr. Clements who as I have already indicated were both called to testify on behalf of the Plaintiff were in agreement that when Ian's heart rate dropped from 140 bpm to 100 bpm and remained at that level for a period of two or three minutes the attending midwives had cause for serious concern and ought, as a matter of good practice to have sought the assistance of a suitably qualified obstetrician.

65. Dr. Peter Boylan and Dr. Michael Turner both of whom are eminent and highly experienced consultant obstetricians and gynaecologists and who were called to testify on behalf of the hospital were of the opinion that in the event of the onset of a bradycardia good practice did not require that the nursing or midwifery staff should seek the assistance of an experienced obstetrician unless and until the foetal heart rate dropped to and remained at a level significantly below 100 bpm (and in Ian's case until it dropped to 60 bpm which was probably between 4.49 pm and 4.54 pm). However both men agreed that a reduction in foetal heart rate to 100 bpm or less gave cause for concern and both were in agreement that once the foetal heart rate dropped to a level as low as 60 bpm urgent action was required and Ian's speedy delivery was imperative in the interests of his safety and even his survival.

66. As I have earlier indicated Ian's heart rate probably dropped from 140 bpm to 100 bpm between 4.40 pm and 4.45 pm so that the appropriate practice and standard of care suggested in evidence by Prof. Thompson and Mr. Clements required the attendance of a consultant obstetrician upon Ian and his mother within approximately ten minutes of the onset of a prolonged bradycardia which would have been confirmed by the nursing staff no earlier than 4.43 pm and no later than 4.48 pm. Accordingly, an experienced obstetrician should reasonably have been expected to be in attendance upon Ian and his mother no earlier than 4.53 pm and no later than 4.58 pm.

67. Adopting the standards suggested by Dr.'s Boylan and Turner, Ian and his mother were entitled to expect the attendance of a consultant obstetrician within approximately ten minutes of the onset of an emergency which occurred no earlier than 4.49 pm and no later than 4.54 pm so that they could expect Dr. Corr or a suitably qualified replacement to have been in attendance no earlier than 4.59 pm and no later than 5.04 pm.

68. Dr. Boylan pointed to the distinction between what is described as foetal distress and bradycardia and I hope that I understand the distinction as clearly as he described it. In determining this issue I believe that I should have regard only to the standards and the practices which apply to the onset of a prolonged bradycardia and I am not concerned with the definition of foetal distress .

69. An extract from "Foetal Monitoring in Practice" (Donald Gibb and F. Arulkumaran second ed. ch.11) was adduced in evidence in which the topic of prolonged bradycardia was discussed and the procedure for prolonged bradycardia was outlined (see Table 11.1 at p 156).

70. The observation (at p152) that." If the F.H.R. [foetal heart rate] does not show signs of recovery by 9 minutes, the incidence of acidosis is increased, and one should take action to deliver the fetus as soon as possible..." was adopted by the expert witnesses on behalf of the plaintiff but rejected by those who were called to testify on behalf of the hospital but the following sentence "...[t]he clinical picture has to be considered while anxiously awaiting the F.H.R. to return to normal..." was not seriously disputed. Dr. Boylan, in his evidence, adopted a standard which he recited from the "medico-legal handbook" entitled "Safe practice in Obstetrics and Gynaecology", 1994, which was in fact edited by Mr. Clements and which referred to a study from Oxford University which was published in 1994 and which identified certain criteria for "suboptimal care" agreed by obstetricians within an area in the United Kingdom. These criteria provided inter alia that, in relation to foetal distress, "[c]are was considered suboptimal if there was failure to respond within the specified time limit by taking a fetal blood sample or by delivery in the presence of;-

71. Prolonged bradycardia ( < 100 beats/min) for thirty minutes."

72. However it was pointed out on behalf of the plaintiff that the study had expressly stated that the criteria represented:-

73. The textbook "Handbook of Foetal Heart Rate Monitoring" (Julian T. Parer, MD.Ph.D first ed., W.B. Saunders Co., 1983) was also adduced in evidence. The term bradycardia was defined at chapter 8 p. 124, therein in the following terms:-

74. Some fetuses with moderate bradycardia may merely be victims of our arbitrary decision to make 120 bpm the lower limits of normal, and, in fact, 110 bpm has been proposed by some as the lower limit.

75. Immediately upon recognition of a bradycardia, one should attempt to optimise fetal oxygenation by maintaining maternal blood pressure and avoiding excessive uterine activity, position change, hydration, and possibly maternal hyperoxia. There is no need for grave concern if the moderate bradycardias are not abolished. If the bradycardia is below 100 bpm, however, then more vigorous efforts should be made to alleviate it, even in the presence of good F.H.R. variability. A bradycardia below 80 bpm almost invariably will result in fetal asphyxial decompensation, and it becomes an obstetrical emergency that requires abolishing the bradycardia or delivering the baby before severe central asphyxia occurs..."

76. The evidence of Mrs. O'Mahony has established that a bradycardia was recognised by the nursing staff of the hospital when Ian's heart rate dropped from 140 bpm to 100 bpm and remained there for more than two minutes. That evidence also established that the nursing staff managed the bradycardia in an appropriate fashion by moving Mrs. O'Mahony, by instructing her not to push, by removing the syntocin drip and in particular by administering oxygen.

77. It is clear also from Mrs. O'Mahony's testimony that within a short time after the bradycardia was confirmed the hospital staff were expecting the attendance of Dr. Corr. However as I have indicated earlier Dr. Corr did not arrive at the hospital until sometime after 5 pm and was not in physical attendance upon Ian and his mother until approximately 5.05 pm.

78. On the evidence the nursing staff recognised and confirmed the presence of a prolonged bradycardia between 4.43 pm and 4.48 pm. They further recognised (a) the need for the appropriate management of the bradycardia (which they provided) and (b) that the presence of Dr. Corr or a replacement consultant obstetrician was appropriate and necessary in the interests of Ian and his mother.

79. The system adopted by the hospital provided that either Dr. Corr or a replacement consultant obstetrician should be available and in attendance upon the patient within 10 minutes of being notified that he was urgently required. It is inescapable that neither Dr. Corr nor a replacement consultant obstetrician were in attendance upon Mrs. O'Mahony within 10 minutes of the time when it was confirmed that Ian was suffering a prolonged bradycardia and when the nursing staff felt that he ought to be summoned.

80. It is possible that Dr. Corr, made his way to the hospital without any sense of urgency (in response to notification that Mrs. O'Mahony was fully dilated) or that he was delayed in transit for one reason or another or that a paging alert did not reach him. The testimony of Mrs. O'Mahony, however confirms that when he arrived he had learnt of Ian's condition and was responding urgently. In any event, Dr. Corr was not in attendance upon Mrs. O'Mahony until approximately 5.05 pm which was between seven and twelve minutes later than the hospital's system contemplated. Accordingly, whilst the system adopted by the hospital was a perfectly reasonable system in the circumstances it did not, on the 11th May, 1987 operate efficiently and it did not operate precisely in the manner in which it was designed to operate and accordingly the attendance of a consultant obstetrician upon Ian and his mother took between seven and twelve minutes longer than the system envisaged and provided for.

81. Applying the standard of care which was in fact adopted by the hospital, that is to say the response (by way of the attendance of a consultant obstetrician upon the patient) to notification from the nursing staff within ten minutes from such notification, I am satisfied that as a matter of probability the hospital either (1) did not have available or, alternatively, (2) did not summon a replacement consultant obstetrician within the time which it's system provided for after it was confirmed that (a) Ian had sustained a prolonged bradycardia and (b) Dr. Corr had not responded to a paging alert.

82. I am satisfied on the evidence that the nursing staff did not, as a matter of probability, fail to detect and to confirm the bradycardia which Ian was suffering between 4.43 pm and 4.48 pm on the 11th May, 1987 and I am further satisfied that the nursing staff treated and managed the bradycardia and the subsequent additional drop in Ian's heart rate to 60 bpm expertly and conscientiously and in a manner consistent with general and approved practice

83. However since I have found that the attendance of a consultant obstetrician took between seven and twelve minutes longer than the hospital's system contemplated and provided for it follows that Ian's delivery took a period of between seven and twelve minutes longer than was reasonably possible after the bradycardia had been confirmed by the nursing staff.

84. The next issue which requires to be determined lies at the heart of and is critical to the outcome of this case. The question for determination is:-

85. Did the hospital:-

86. What I have described above as an issue comprises in fact a series of complex questions. Although (c)(1) above is possibly capable of independent determination I have taken the view that in general the questions which must be decided are so heavily interconnected and in some respects interdependent that for practical purposes I should try to deal concurrently with all of those questions with the object of determining the fundamental issue in this case.

87. Prof. Thompson in his evidence stated that if Ian suffered from severe intrapartum hypoxia then he would have expected Ian to be limp and to have required resuscitation immediately after birth. When asked to explain why, if Ian had suffered severe intrapartum asphyxia, he had been given an apgar score of eight and did not require resuscitation he replied "I cannot explain that" and his demeanour suggested that he had reservations as to the accuracy of the apgar score and was somewhat sceptical of the suggestion that Ian did not require resuscitation immediately after birth.

88. Mr. Clements in his evidence was of the firm opinion that if Ian's condition resulted from brain damage caused by an intrapartum hypoxic event during the period just prior to his birth then he would have expected Ian to have had an apgar score between two and five and he agreed that the only way he could reconcile an apgar score of eight with Ian's present condition would be if the apgar score was awarded at a time no earlier than ten or fifteen minutes after birth. Furthermore he was unequivocal in his view that if Ian's present condition was caused by reason of an hypoxic ischaemic event during the ten or fifteen minutes prior to birth then Ian "...would be a baby that wasn't breathing at birth and didn't breathe for some minutes after birth".

89. Prof. Alan Weindling who is a Professor of perinatal medicine at the University of Liverpool and a consultant neonatologist, in evidence on the 22nd October, 1999 offered the unequivocal view that Ian is suffering from "cerebral palsy...of a spastic quadriplegic and dystonic pattern...he has a cognitive loss and...a seizure disorder". He stated that the direct cause of his condition was brain damage as a consequence of hypoxia and exemia sustained during the final fifteen minutes before he was born.

90. He stated that it was "unusual" for a child who had suffered a severe hypoxic event shortly before birth to be awarded an apgar score of 8 and "most unusual" for a child who had suffered massive brain damage within minutes of birth to show no signs of encephalopathy although he insisted that this did not rule out such damage.

91. He excluded a genetic abnormality at or around the time of conception or an abnormality caused during early pregnancy as potential causes of Ian's condition. He also discounted trauma during pregnancy but before labour stating that it was less probable than a bradycardia during labour. He found no evidence either to support or refute the possibility of injury to another organ after birth. Accordingly he considered intra partum insult to be the most likely cause of Ian's present condition.

92. He agreed that the absence of acute encephalopathy (such as seizures within 12 to 24 hours after birth) militated against his conclusion as to causation but stated that he could not come up with a more probable cause for Ian's condition than that which he had outlined in evidence.

93. On the 9th day of December, 1999 Professor Weindling was recalled to testify on behalf of the plaintiff and he stated that he had had the opportunity to examine the M.R.I. scan which Ian had undergone in Liverpool approximately two weeks earlier and that he had changed his view as to the cause of Ian's condition. He stated that there was nothing on that scan which "...fitted with acute hypoxic ischaemic brain damage..." particularly having regard to the absence of evidence of abnormality in the area of the basal ganglia. He said that he was now of the opinion that Ian's glycogen stores became depleted during the hypoxic ischaemic stress to which he was subjected resulting in insufficient glucose reserves and that this reduction in glucose reserves resulted in hypoglycaemia. The failure to treat the hypoglycaemia either adequately or at all resulted in brain damage and Ian's present condition.

94. Professor Ronald Gabriel who is a clinical professor of neurology and paediatrics at the University of California in Los Angeles, in evidence on behalf of the Plaintiff, was firm in his view that Ian's condition was caused by complications which occurred at the end of labour. He said that Ian did not sustain generalised ischaemic hypoxia and there was no generalised asphyxia. He concluded that what Ian had sustained was a perfusion deficit to the distal-most portions of the watershed areas of the brain which are the regions specifically which underly volitional movement, intelligence, behaviour and language. He said that whilst Ian's normal apgar score was inconsistent with global or generalised hypoxic ischaemia, it did not surprise him and was irrelevant to his findings which were that Ian had sustained damage by reason of reduced perfusion to the distal portions of the brain.

95. He said that in his judgment the M.R.I. scan of Ian's brain which was carried out in May of 1993 disclosed abnormalities in various areas of the brain including regions of the basal ganglia.

96. Professor Gabriel testified on the 27th October, 1999 and accordingly did not have the opportunity to examine the M.R.I. scan of Ian's brain which was carried out in Alderhey Hospital in Liverpool on the 19th November, 1999.

97. Professor Gabriel was critical of the fact that the final section of the CTG trace representing a period of up to 18 minutes was missing and not available for examination. He felt that its absence was not coincidental and invited the Court to conclude that it had been deliberately destroyed by the hospital authorities because it probably disclosed the presence of a severe and prolonged bradycardia ".... and they were concerned about how that would look years later in a Court of law".

98. Dr. Werner Schutt, who is a consultant paediatric neurologist, and who is now retired, testified on behalf of the Plaintiff on the 28th October, 1999 and was of the clear opinion that Ian's present condition was caused by reason of brain damage resulting from an hypoxic ischaemic insult sustained during the final 15 minutes or so prior to his birth. He stated that during that time Ian suffered irreversible brain damage caused during a period of between 10 and 15 minutes whilst his heart rate had been reduced to a level in the region of 60 bpm. He went on to express the view that if Ian had been delivered 15 minutes earlier he would have avoided permanent brain damage.

99. He agreed further that it would be "uncommon" for a child who had within the previous five to ten minutes suffered irreversible brain damage to be awarded a normal apgar score immediately after birth and that such children "almost invariably" demonstrated signs of moderate to severe encephalopathy within 24 to 48 hours after birth. He had never encountered or heard of a case of a child who had suffered massive brain damage within minutes before birth and who had subsequently demonstrated neither an abnormal apgar score nor a "moderate to severe" encephalopathy.

100. He expressed surprise that Ian was not monitored more carefully after birth and that his blood sugar levels were not tested pointing out that the children of preeclamptic mothers and children who have sustained anoxic ischaemic injury during labour can have a disposition to the development of hypoglycaemia. He was particularly critical of the hospital in respect of the absence of records which would have provided information as to Ian's condition during the period of 19 hours immediately after his birth.

101. Recalled on the 7th December, 1999 Dr. Schutt stated that the results of the M.R.I. scan of Ian's brain taken two weeks prior to his recall had caused him to alter his opinion as to the cause of Ian's present condition. He now attributed Ian's condition to a "cascade of events" which included (1) pre-eclampsia in Ian's mother tending to reduce the efficiency of the placenta (2) bradycardia shortly before Ian's birth and (3) the development of hypoglycaemia during the period of between four and six hours after his birth.

102. He said that Ian had sustained brain damage from the cumulative effects of hypoxia and hypoglycaemia but he did not feel that he could accurately weigh proportionally the effect of one cause as against the other.

103. In common with all of the expert witnesses who testified in this case he agreed that the clinical signs of hypoglycaemia in a new born child are jitteriness (trembling of the limbs), irritability (excessive crying), stupor, convulsions and coma leading to a potentially fatal outcome. He agreed further that, in order to give rise to brain damage of the kind which would explain Ian's condition hypoglycaemia would be severe and prolonged and would be accompanied by the clinical signs which have just been outlined which in turn would have been obvious to a trained observer within a period of between four and six hours after birth. If untreated either by the intravenous infusion of glucose or by a normal feed containing carbohydrate a child suffering from hypoglycaemia will remain stuporose and unresponsive and could die. He felt that since Ian "...is still alive today my assumption is that if this was hypoglycaemia he must have gone through a bad patch and come out of it."

104. He did not know of any documented or other case where a child had sustained brain damage caused by the cumulative effects of a hypoxic ischaemic insult and hypoglycaemia but relied upon extracts from medical textbooks and periodicals (notably "Imaging Patterns of Neonatal Hypoglycaemia" - A. James Barkovich and others - A.J.N.R - Am. J. Neuroradiol 1998; 19: 523-528 and "Neurology of the Newborn" - 3rd ed. 1995 - J.J. Volpe ch. 12) in support of his contention.

105. Dr. David William Pilling who is a consultant paediatric radiologist in Alderhey Hospital in Liverpool stated in evidence on the 7th December, 1999 that he had carried out an investigation by way of M.R.I. scan on Ian in Alderhey Hospital on the 19th November, 1999 pursuant to a reference from Professor Weindling. He stated that the M.R.I. scan of Ian's brain disclosed cortical loss over the posterior parietal region of Ian's brain corresponding to increased fluid at that location which in turn suggested atrophy or shrinkage of part of the brain underneath the area of fluid. The appearance was restricted to the posterior parietal cortex and the literature suggested that this was an area which was particularly affected by neonatal hypoglycaemia. It was not diagnostic of neonatal hypoglycaemia but the area concerned was particularly affected by neonatal hypoglycaemia.

106. Having regard to the location of the abnormality he felt it was "...more likely to be caused by neonatal hypoglycaemia than by hypoxic ischaemic damage..." and while medical literature suggested a possible link between hypoxia and neonatal hypoglycaemia there was no way in which he could differentiate between the two and indeed the M.R.I. scans of profoundly handicapped children with cerebral palsy were often perfectly normal.

107. He agreed that the scan disclosed a volume abnormality rather than a signal abnormality so that what was disclosed was shrinkage and the abnormality disclosed was "very subtle". He was in further agreement that the diagnosis of neonatal hypoglycaemia could not be made without reference to a detailed investigation of a patient's clinical condition.

108. Dr. David Richard Evans who is a consultant paediatrician at Singleton Hospital in Swansea had been consulted about Ian's condition in 1988 but when he testified on the 8th November, 1999 he could recall nothing of his investigations at that time and his evidence was based upon information which he had received within the five days prior to his testimony and which comprised hospital records and reports from Mr. Clements, from Professor Weindling and from Dr. Schutt.

109. He said that a bradycardia was an accepted sign of foetal distress and that a heart rate of 60 b.p.m. was very significant indeed.

110. He indicated that literature suggested that a baby will cope with foetal distress for up to an hour but there were different degrees of foetal distress. He would have expected Ian to have been born asphyxiated and requiring resuscitation and he doubted the accuracy of the apgar score. He felt that Ian should have been examined by a paediatrician, have had his heart rate monitored regularly and have had his blood sugar levels tested because he was irritable and had a difficult birth.

111. He said that if hypoglycaemia is discovered then it can be corrected by feeding the baby normally or, if feeding is difficult or impossible, by the intravenous infusion of glucose.

112. He was critical of the hospital in relation to the absence of any records as to Ian's condition during the first nineteen hours after his birth.

113. His initial opinion had been that birth asphyxia was insufficient to explain Ian's condition but having regard to the information which he had received in the preceding five days he now felt that Ian had a traumatic and difficult delivery resulting in hypoglycaemia which remained untreated for a period of up to nineteen hours and that this together with "...relatively mild features of hypoxic ischaemic encephalopathy..." resulted in brain damage and Ian's current condition. It was his opinion that if Ian had not developed hypoglycaemia he would be perfectly normal today.

114. In particular Dr. Evans was firmly of the opinion that Ian was not fed or was not adequately fed by the nurses in the neonatal unit of the hospital and he stated that if Ian had been feeding normally it is unlikely that he would have developed hypoglycaemia. Furthermore he believed that Ian was not adequately observed or monitored by the nurses within the neonatal unit of the hospital and that in consequence features of encephalopathy were either missed or ignored.

115. Dr. Seamus O'Donoghue who was a consultant paediatrician attached to the hospital when Ian was born and who examined Ian shortly after his birth and who is now retired, testified on the 14th January, 2000.

116. He emphatically disagreed with the views expressed by Dr. Schutt and Dr. Evans relative to the need for blood sugar tests upon Ian immediately after his birth. He stated that since Ian recorded an apgar score of 8 at birth and showed no evidence of hypoxia (other than some pallor) he was not clinically hypoxic and he stated that he knows of no neonatal unit which will carry out blood sugar tests upon a baby who is not clinically hypoxic. He agreed that the term "cranky" has a clinical significance and should cause an experienced neonatal nurse to contact a paediatrician and note the condition upon the neonatal baby chart.

117. He stated that in 1987 it was the practice in the hospital to put babies who were born via caesarean section or forceps delivery within an area in the neonatal unit called the "24 hour observation nursery" so that they could be observed for a couple of hours after birth. Babies who were deemed ill and who required treatment by the paediatric staff were routinely admitted to the neonatal unit where they were treated either in one of three cubicles or within the Intensive Care Unit which was within the neonatal unit but separate from those cubicles. It was not unusual to place a perfectly healthy baby in an incubator within the "24 hour nursery" if an incubator was available and placing such a baby within an incubator did not denote a need for special care. Admission to the neonatal unit or the Intensive Care Unit resulted in detailed and extensive monitoring and similarly detailed and extensive notes of the baby's ongoing condition and treatment.

118. Dr. O'Donoghue believed that Ian's heart and respiratory rates would have been noted by the neonatal nurses together with his bowel movements, the passing of urine and meconium and Ian's exposure to and tolerance of feeding but he could not account for the absence of written records stating that good practice required such monitoring and such records.

119. Dr. O'Donoghue was clear in his view that hypoglycaemia did not cause Ian's present condition. He said that hypoglycaemia resulting directly from a hypoxic ischaemic insult to Ian's brain could be ruled out because Ian did not require resuscitation at birth and recorded an apgar score of 8. He said that he did not believe that it was reasonably possible that Ian could have developed hypoglycaemia (which was not clinically obvious) within four to six hours after his birth and then returned without medical intervention to a normal posture and behaviour some 19 hours after birth.

120. On behalf of the hospital Professor Thomas G. Matthews who is a consultant paediatrician and neonatologist stated unequivocally that Ian could not have been transiently hypoglycaemic to a degree which resulted in brain damage without demonstrating major neurological signs. He was emphatic that any insult sufficient to cause brain damage immediately prior to or at birth must cause an encephalopathy and he divided encephalopathy into three 'grades'. He said that a baby who demonstrates irritability alone as a sign of an encephalopathy is in the mild grade and"...these babies have a 100% normal outcome." He stated that Ian did not come into either of the other two categories of encephalopathy and consequently he unequivocally denied that there was any possibility that Ian could have sustained brain damage either (1) resulting from an hypoxic ischaemic insult immediately prior to birth or (b) as a result of the development of hypoglycaemia after birth or (c) as a result of the "cascade of events" described by Dr. Schutt.

121. Whilst Professor Matthews agreed that some of the more subtle signs of hypoglycaemia such as tremors, and jitteriness are unrecognised he insisted that the signs associated with the possibility of brain damage are not subtle since they comprise stupor, coma or seizures and cannot reasonably be missed.

122. He expressly rejected a suggestion (based upon a passage from the study by A. James Barkovich and others, "Imaging Patterns of Neonatal Hypoglycaemia", A.J.N.R. Am. J. Neuroradiol 1998; 19: 523-528) that "hypoglycaemia seems to potentate the effects of hypoxia..." and that the consequent effects on the brain are devastating. He claimed that this was a study based entirely on animal experiments and that it has been contradicted by evidence from studies of humans which suggest that cortical damage tends to occur only after the development of prolonged hypoglycaemia of a kind which is sufficiently severe to cause neurological symptoms.

123. Dr. James Toland who is a consultant neuroradiologist in Beaumont Hospital in Dublin, testifying on behalf of the hospital, stated that if the brain of an infant is subjected to a severe intrapartum hypoxic insult then changes will occur in the basal ganglia which are the deep grey nuclei close to the ventricular surface of the brain and these changes will be evident upon images from an MRI scan of that area of the brain. These changes are attributable initially to an increase in the water content of the intracellular and extracellular spaces and this leads to a process of gliosis. Gliotic change is manifest in high signal on T2 weighted images and on 'flare' sequence images.

124. He said that he had the opportunity to examine a CT scan of Ian's brain which had been carried out on the 4th March 1988 and he characterised it as "an entirely normal study" disagreeing with the views of Professor Gabriel in that respect. He had also had the opportunity to examine a CT scan of Ian's brain carried out on the 15th April 1991 and again he disagreed with the views of Professor Gabriel and described the images as "normal". He further had the opportunity to examine the MRI scan of Ian's brain which was taken in May of 1993 and described it as normal indicating that it did not disclose any change which would be consistent with an intrapartum hypoxic event. In particular he indicated that the T2 images showed normal signal pattern and normal development of the brain at that stage (when Ian was six years old).

125. He stated unequivocally that he did not see the abnormalities which had been described by Professor Gabriel as "..abnormal increased signal on T2 weighted images in the regions of the basal ganglia just lateral to the internal capsule on the left..." and furthermore he did not see any signal abnormality on the T2 weighted images at all. He could find no evidence of changes or damage to the basal ganglia.

126. He had had the opportunity to examine the MRI scan of Ian's brain taken in Alderhey Hospital in November 1999 and found a "somewhat subtle" abnormality on the flare sequence. He said the CSF signal had been altered to the extent that there appeared to be an excess of fluid over the posterior parietal and superior occipital regions of the brain. He said this was a clearly visible anatomical change which was not visible on earlier studies and represented an increase in volume in that the CSF space in that particular location had expanded secondary to a reduction in volume of the brain. Consequently nature afforded a vacuum and fluid accumulated over areas of focal reduction in volume. Accordingly, the scan disclosed a volume abnormality but did not disclose a signal abnormality which was significant since the flare sequence is more sensitive to abnormal signals in the brain than the heavily T2 weighted images.

127. The absence of signal abnormality implied that there was no significant post-insult gliotic change within the brain.

128. In his personal experience abnormalities resulting from hypoglycaemia were rare but normally comprised high signal in the white matter in the parietal occipital areas of the brain with overlying reduction in thickness of the cortex and possibly signal abnormality in the thalamus. He saw no signal abnormality either in the white matter of the hemispheres or in the basal nuclei.

129. Referring to the study by A. James Barkovich and others in the American Journal of Neuroradiology published in 1998 ("Imaging Patterns of Neonatal Hypoglycaemia", A.J.N.R. Am. J. Neuroradiol 1998; 19: 523-528) Dr. Toland pointed out that this study was authority for the proposition that infants suffering from neonatal hypoglycaemia demonstrated abnormal changes predominantly in the posterior aspects of the hemispheres but they also showed both signal cortical abnormality and volume loss and in severe cases the changes were more diffusely spread in other areas of the brain.

130. He said that the distribution of the changes which he discovered in the MRI scan of November 1999 "..would be totally atypical for those abnormalities that had been classically described in children who had sustained an intrapartum or perinatal event of an hypoxic ischaemic nature".

131. Dr. Mary King who is a consultant paediatric neurologist with a special interest and experience in the causation of cerebral palsy and the study of mental handicap and other neurological conditions stated in evidence that she did not think it was possible that Ian's present condition resulted from an hypoxic ischaemic insult immediately prior to birth. She stated that Ian did not have any evidence of a significant neurological syndrome or brain injury after birth and is suffering from a brain disorder manifested by severe mental handicap. She said it was inconceivable that his condition was caused by an injury at any time, whether at birth, after birth, at five months or ten months or five years in the absence of "...overwhelmingly acute neurological injury." She was adamant that if there is any injury at any time to the brain there would have been evidence of that injury within an hour or so after it's occurrence.

132. She denied that Ian was suffering from cerebral palsy of a spastic quadriplegic and dystonic pattern stating that he "...has a motor syndrome characterised by difficulty planning his movements but not accompanied by any dystonia or by any spasticity." She attributed this to the fact that Ian has severe mental handicap together with some motor difficulties.

133. Spastic dystonic quadriplegia together with a fall off in head growth is generally associated with trauma or insult to the brain. Mental handicap on the other hand is more likely to result from a developmental disorder.

134. She did not regard the fall off in Ian's head growth as significant having regard to the global and severe nature of his cortical malfunction and she would have expected it to have been greater if Ian's condition resulted from a perinatal insult.

135. She was in agreement with Professor Weindling that a blood sugar test should be carried out upon a baby who required to be resuscitated at birth and said that appropriate medical practice did not require that such a test be carried out upon a healthy child who did not require such resuscitation.

136. She stated that if Ian had developed hypoglycaemia by reason of inadequate feeding after birth then he would have become tremulous and would probably have gone on to respiratory disturbance, seizures and coma within 12 hours and she said it would have been "impossible" for Ian to have recovered from such symptoms spontaneously and, without intervention from the neonatal or paediatric staff.

137. She said that three separate epidemiological studies provided authority for the proposition that between 33% and 40% of children with severe mental handicap cannot be diagnosed as to the probable cause of their condition. She stated that medical literature did not confirm Prof. Gabriel's opinion that between 90% and 95% of such cases can be diagnosed.

138. She said that no case has ever been documented in medical literature or elsewhere which fitted Ian's clinical picture. She said that Ian's condition is due to a prenatal early pregnancy developmental abnormality which means that something has caused his brain cells not to connect up properly.

139. She said that medical research has established that approximately one third of all children who suffer from mental handicap can be diagnosed with certainty and found to have conditions such as Prader-Willi syndrome or Downs Syndrome.

140. A further one third of such children can be diagnosed as a matter of probability with chromosomal problems (such as Rett's Syndrome), brain malformations and (presumably) brain damage resulting from intrapartum hypoxic insult.

141. She said that it was her opinion that Ian came into the final category which comprised one third of all children suffering from severe mental handicap which was the most difficult and tragic category of children in the whole spectrum of degenerative brain disease because medical science is still unable to explain the cause of their condition. She said the search for such explanation was ungoing and new causes had been discovered and will in the future be discovered from time to time.

142. A number of expert witnesses who testified on behalf of the plaintiff were critical of the system adopted by the hospital in 1987 for recording (a) the clinical signs and symptoms exhibited by patients (both mothers and infants) or the absence of such signs and symptoms (b) precise details of all of the treatment afforded to such patients by both doctors and nurses and the response of the patients to such treatment throughout the currency of their confinement within the hospital and (c) precise details of all medication prescribed for and received by patients (both mothers and infants) throughout the currency of their confinement within the hospital. Particular criticism was levelled at the hospital in relation to the absence of records by way of nursing notes (a) in respect of the condition of Ian and his mother prior to Ian's birth and whilst Mrs. O'Mahony was in labour (b) in respect of Ian's condition for a period in excess of 19 hours after his birth and after his admission into the "24 hour nursery" and (c) in respect of medication prescribed for and received by Ian and his mother whilst they were confined within the hospital.

143. There was a conflict of evidence between the expert witnesses who testified on behalf of the parties as to what comprised general and approved practice in 1987 in maternity hospitals within this and other comparable jurisdictions in respect of such records and note taking.

144. Having carefully considered the evidence adduced on behalf of the parties I am satisfied (a) that the system which was used by the hospital in May of 1987 for recording the presence or absence of clinical signs and symptoms relevant to the condition of Ian and his mother prior to his birth were adequate and accorded broadly with what was a general and approved practice in maternity hospital within this and other comparable jurisdictions in 1987. Notes made by the nursing staff prior to labour, whilst not overly detailed, were adequate in the circumstances. Furthermore I am satisfied that the partogram which was used to record Mrs. O'Mahony's labour in detail was quite satisfactory in the circumstances and that the contention advanced on behalf of the hospital that further notes during labour were unnecessary is fortified by medical literature dealing with the active management of labour (in particular, "Clinical Obstetrics and Gynaecology" (Vol. 2, No.1, April 1975, Ch. 6 )).

145. I am satisfied also that the system which was in use at the hospital in 1987 for recording the condition and treatment of neonates who required to be formally admitted either to the neonatal unit or the Intensive Care Unit of the hospital by reason of illness was satisfactory and in accordance with general and approved practice within this and other comparable jurisdictions.

146. In 1987 the condition of and treatment afforded to new born babies who were admitted routinely to the postnatal unit was recorded in the daily nursing notes contained in respect of the infant's mother and I am satisfied on the evidence that that system was broadly acceptable and accorded with appropriate medical practice in 1987.

147. However the system which was in use in the hospital in 1987 for the recording of medication prescribed for and given to mothers and infants was inadequate and insufficient and although some form of rudimentary system of recording appears to have been in existence that system was not properly implemented in so far as Ian and his mother were concerned because, whilst nursing notes contained entries indicating the administration of medication to Mrs. O'Mahony no Drug Chart was maintained in respect of Ian and the Drug Chart maintained in respect of Mrs. O'Mahony did not record any of the medication which she actually received.

148. Of greater relevance I am satisfied that in 1987 the hospital's system for recording the condition and treatment of neonates immediately after birth was wholly inadequate and did not accord with proper and appropriate medical practice in that respect.

149. The medical evidence adduced in this case has established that neonates require careful observation and monitoring during the hours immediately after birth. It established further that good medical practice required that such monitoring and observations should be recorded with particular reference to the infant's heart and respiratory rates together with bowel movements, the passing of urine and mocomium and the exposure to and tolerance of feeding.

150. Evidence adduced on behalf of the hospital established that in 1987, as a matter of practice, healthy neonates were admitted to the "24 hour nursery" so that they could be carefully observed and monitored during their first few hours of life. The "24 hour nursery" which was contained within the neonatal unit was staffed by neonatal nurses in 1987 and a number of members of the neonatal nursing staff testified on these proceedings. They acknowledged that in May of 1987 no formal system existed for recording the condition and treatment of infants detained within that nursery and stated that they each adopted ad hoc systems and recorded observations as to heart rate, temperature, feeding and other relevant findings in different fashions. Some used loose leaf paper and others used jotters and none of these rudimentary records were ever retained for any period of time. Ian's period of confinement within the "24 hour nursery" extended to 19 hours because his mother was detained in the labour ward on the same floor of the hospital for most of that time, so that she could be observed having regard to her condition of pre-eclampsia.

151. Accordingly, in 1987, whilst the hospital's system for recording the condition and treatment of mothers and their new-born infants was adequate and satisfactory in respect of the period from the admission of the mother until the birth of the infant and from the admission of the infant to the post natal unit (or alternatively the neonatal unit or Intensive Care Unit) until discharge of mother and child it was inadequate and unsatisfactory in respect of the period whilst neonates were confined to the "24 hour nursery". Although that period, in respect of most healthy neonates extended for no more than a few hours, in Ian's case (for reasons already identified) it extended for a period of 19 hours. Accordingly by reason of this defect or gap within the hospital's recording system Ian's condition during the first 19 hours of his life and the various features associated with it are and remain unrecorded.

152. The evidence adduced at the trial of these proceedings does not support Prof. Gabriel's contention that the final section of the CTG trace was deliberately destroyed by the hospital authorities for sinister purposes.

153. It has been established in evidence by Mrs. O'Mahony that the foetal scalp electrodes remained connected to Ian's scalp during the time whilst he was being transferred from the "1st stage room" to the operating theatre (or delivery room) and that additional equipment, including the heart monitoring machine, was transferred alongside her bed from one room to the other. It has also been established in evidence that it was necessary to disconnect the heart monitoring machine from the electricity source during the transfer and to reconnect it upon arrival at the second location. It is acknowledged that Mrs. O'Mahony was transferred in an atmosphere of urgency and I am satisfied on the evidence that a certain amount of the time between 4.50 pm and 5.05 pm (when Dr. Corr arrived) on the 11th May, 1987 was taken up whilst Mrs. O'Mahony was being repositioned, was receiving oxygen, was receiving a pubic shave, and was being transferred (together with a considerable amount of equipment) from one room to another. The monitoring machine was reconnected in the operating theatre for what must have been a comparatively short period before Dr. Corr arrived and disconnected it. Accordingly what was missing by way of relevant evidence was the recording of Ian's heart rate by CTG trace for a comparatively short period immediately prior to 5.05 pm (or possibly 5.07 pm). The evidence has also established that by 5.15 pm Ian's heart rate had fully recovered and was normal.

154. What, in my opinion, is conclusive to this issue is that if the hospital authorities, for the sinister purposes suggested by Prof. Gabriel, deliberately destroyed the final section of the CTG trace then they did so in an inexplicably clumsy and ineffective manner because the entire of the Plaintiff's case in these proceedings rests upon the evidence afforded by the final square of the CTG trace. The removal and destruction of that final square at the perforation immediately before the number 78 would have deprived the Plaintiff of any substantive evidence of the occurrence of a bradycardia at any time prior to Ian's birth. The deliberate removal and destruction by the hospital authorities of the final section of the CTG in the manner and for the purposes suggested by Prof. Gabriel would have been illogical and counter productive since it's absence adds emphasis to the bradycardia disclosed in the very final square of the trace. Accordingly I am quite satisfied on the evidence that it is highly improbable that the hospital or anyone acting on its behalf removed and destroyed relevant documentary evidence in the reprehensible manner suggested in evidence by Prof. Gabriel.

155. I am satisfied on the evidence and on the balance of probabilities that Ian did not require resuscitation at birth and that the apgar score of 8 which he was awarded (1) was awarded after an examination by attending midwifery staff after an examination which was carried out upon Ian within the first few minutes after birth and (2) that the score of 8 was an appropriate score having regard to Ian's condition when he was examined.

156. I have reached that conclusion inter alia because of the evidence which was adduced by both of Ian's parents relative to the moment of Ian's birth and the minutes immediately thereafter. It has been acknowledged in evidence that neither Dr. Corr nor any of the midwifery staff showed any alarm or even concern as to Ian's condition at birth or at any time whilst Ian's parents were present in the room where he was born. Ian was handed by Dr. Corr to an attending nurse whilst Dr. Corr continued to afford medical treatment to Mrs. O'Mahony. Ian was brought calmly (and in accordance with normal hospital routine) to the "Ohio" which is the table within the operating theatre (or delivery room) where he was cleaned and dressed by the nursing staff. Neither of Ian's parents noticed any sign of urgency relative to Ian's treatment by the nursing staff at the "Ohio" and indeed during this time both parents confirmed that Dr. Corr called over two of the midwifery staff to demonstrate particular characteristics concerning Mrs. O'Mahony's coccyx. Ian required and received no treatment whatsoever from Dr. Corr after his birth and was simply washed, weighed, examined, cleaned and dressed by the midwifery staff in the presence of his parents and of Dr. Corr before, dressed in swaddling clothes, he was handed to his mother who kept him with her for a period of time which she estimates at between 2 and 5 minutes before returning him to the nurses.

157. I am further satisfied on the evidence of each and every member of the nursing staff of the hospital who testified on these proceedings and of Dr. O'Donoghue who was the consultant paediatrician attached to the hospital at the time that it was the practice in the hospital in May of 1987 for all new-born infants who appeared healthy at birth to be admitted routinely to the "24 hour nursery" for observation and for what was generally a comparatively short period of time after birth. A close examination of the admission book which was maintained in the Special Care Unit (the neonatal unit) provides clear and unequivocal confirmation that all babies born in the hospital at the time were admitted routinely to the unit and that only babies who were ill were formally admitted to the neonatal unit or to the Intensive Care Unit. It follows that in 1987 all healthy babies born in the hospital were observed in the 24 hour nursery for a period of time after birth. It follows further that whilst Ian was noted to be "pale" and recorded a temperature of one hundred degrees he demonstrated no symptoms between the moment of his birth at 5.15 pm and the moment of his admission to the "24 hour nursery" which gave rise to his admission either to the neonatal unit (for babies who were ill) or to the Intensive Care Unit (for babies who were gravely ill). Furthermore between the time of his admission to the "24 hour nursery" at 5.30 pm and the time of his brief reunion with his parents at 8 pm and his subsequent observation by his father at 9 pm Ian (unless they were missed by the neonatal nursing staff) showed no visible signs or symptoms which gave rise to his admission either to the neonatal unit or the Intensive Care Unit and such admission could have been effected without difficulty or inconvenience since both units were located literally within the same room where Ian was confined at the time. When Ian's father observed Ian between 9 pm and 9.30 pm there were no babies in the Intensive Care Unit, three babies were confined within the neonatal unit and Ian was the sole occupant of the "24 hour nursery" and was located within an incubator in the open area of the Special Care Unit. Ian's father recalled in evidence that he observed Ian at that location and that he also saw a nurse within viewing distance of Ian who was then bottle feeding one of the infants who was confined to the neonatal unit. In response to his enquiry the nurse identified Ian and told him that Ian was "...doing well". Whilst Ian's parents had only brief opportunities to observe his condition at 8 pm and again at approximately 9 pm and whilst both were wholly inexperienced relative to new born infants they none the less had more or less unrestricted access to Ian at those times and noticed no symptoms or signs which gave them cause for concern. Of greater relevance however is the fact that Ian was handled by experienced neonatal nurses on several occasions between the time of his birth at 5.15 pm and the time when he was observed by his father at approximately 9 pm and was examined in detail by those nurses on at least two occasions during that time. Furthermore the evidence has established that when his father made an unannounced entry into the Special Care Unit Ian was (a) apparently sleeping peacefully (b) within the visibility of a neonatal nurse (c) who was feeding one of the only three other infants who were within the Special Care Unit on the evening in question. If Ian demonstrated symptoms which gave cause for concern to the neonatal nurses there is no conceivable reason why they should have failed to treat him adequately either by arranging for his admission to the neonatal unit or to the Intensive Care Unit or by seeking assistance from paediatric staff who were readily available. Accordingly I am satisfied on the evidence that between 5.15 pm and 9 pm on the 11th May 1987 it is unlikely that Ian demonstrated symptoms of encephalopathy which passed unnoticed by the neonatal nursing staff.

158. Prof. Thompson, Mr. Clements, Prof. Weindling, Dr. Schutt and Dr. Evans, testifying in support of Ian's claim all admitted to having difficulty in providing a satisfactory explanation as to how Ian could have suffered acute hypoxic ischaemic brain damage shortly prior to his birth and (i) have recorded a normal apgar score and (ii) not required resuscitation immediately after birth.

159. Prof. Weindling's examination of an MRI scan taken during the course of the trial convinced him that the radiological evidence was inconsistent with acute hypoxic ischaemic brain damage. He then adopted the view that the hypoxic ischaemic stress to which Ian was subjected resulted in the depletion of Ian's glucose reserve but did not cause irreversible brain damage.

160. Dr. Schutt's examination of the MRI scan taken during the course of the trial caused him to become convinced that Ian's condition was caused, not by reason of irreversible brain damage resulting from an hypoxic ischaemic event but by reason of the "cascade of events" to which I have earlier referred. Dr. Evans, when first consulted had taken the view that birth asphyxia was insufficient to explain Ian's condition and during his testimony expressed the view that if Ian had not developed hypoglycaemia he would now be perfectly normal. At no stage did Dr. Pilling suggest in evidence that he had found evidence consistent with irreversible brain damage resulting from an hypoxic ischaemic insult during his examination of the MRI scan which he carried out during the course of the trial.

161. Prof. Gabriel alone took the unequivocal view that Ian's condition was caused by reason of irreversible brain damage which in turn resulted from an hypoxic ischaemic insult just prior to birth. Prof. Gabriel did not have the opportunity to examine the MRI scan of Ian's brain which was carried out during the course of the trial.

162. All of the expert witnesses who testified as to causation on behalf of the hospital expressed the unequivocal view that Ian's condition at birth and the absence of encephalopathy after birth precluded irreversible brain damage consequent upon hypoxic ischaemic insult as the cause of Ian's present condition.

163. Having considered all of the evidence which has been adduced in relation to this issue I have concluded that Ian has not discharged the onus of proving on the balance of probability that his present condition was caused by reason of irreversible brain damage sustained as a consequence of an hypoxic ischaemic insult during the thirty minutes or so immediately prior to his birth.

164. It is indisputable that Ian is profoundly disabled both mentally and physically. It is also indisputable that Ian suffered a bradycardia between thirty and thirty five minutes prior to his birth which became acute between twenty one and twenty six minutes prior to his birth but from which he had probably recovered before his was born.

165. Since Ian's present condition first manifested itself in February of 1988 his parents have been and indeed they remain wholly convinced that there is a causal connection between the bradycardia which preceded Ian's birth and his disability. Support for their conviction has been adduced in evidence by several eminent members of the medical profession. Ian's birth was delayed by a period of between seven and twelve minutes by reason of departure on the part of the hospital from the requisite standard of care and from general approved practice in relation to the availability and attendance of a replacement consultant obstetrician. Accordingly if Ian's disability was, as a matter of probability, caused because the bradycardia to which he was subjected was unnecessarily extended by a period of between seven and twelve minutes then, as a matter of law, the hospital is liable to compensate Ian in respect of his disability and all of the losses, expenses and other consequences which flow from that extension of time.

166. From the commencement of this trial the case which has been eloquently advanced on behalf of Ian, both in evidence and in argument, has rested upon the premise that, having regard to Ian's profound disability, the bradycardia to which he was subjected shortly prior to his birth is unlikely to have been coincidental and unrelated. During the first thirteen days of this trial expert medical testimony was adduced on Ian's behalf which was consistent with and which supported that contention. In summary it was contended during the early stages of this trial that (a) Ian is profoundly disabled (b) Ian was subjected to an hypoxic ischaemic insult shortly prior to birth (c) hypoxic ischaemia is a known cause of brain damage and in particular of cerebral palsy (d) all other credible causes of Ian's disability have been considered and outruled so (e) it follows that the bradycardia prior to Ian's birth was the cause of his disability.

167. With effect from the 18th day of this trial and after Ian had been subjected to a further MRI scan the claim advanced on behalf of Ian was amended and the evidence adduced on his behalf by the medical expert witnesses changed quite significantly. It was then contended (for the first time) that Ian's condition may have been caused because he developed hypoglycaemia after his birth by reason of a depletion of his glucose reserves consequent upon the bradycardia.

168. One witness (Prof. Weindling) who had formerly been convinced that Ian's condition was directly attributable to bradycardia stated in evidence that he had changed his mind during the course of the trial and was now convinced that Ian's disability had been caused by brain damage resulting from hypoglycaemia.

169. Another witness (Dr. Schutt) who had, in earlier testimony, been convinced that Ian's disability resulted from hypoxic ischaemia stated that he was now of the opinion that Ian's condition resulted from a "cascade of events" including both hypoxic ischaemia and hypoglycaemia.

170. On Ian's behalf it has been additionally urged that it is still open to the court to accept the view of Prof. Gabriel that Ian's disability was caused by reason of irreversible brain damage resulting from a bradycardia sustained immediately prior to birth.

171. In the light of all of the foregoing it is difficult to avoid the conclusion that the expert witnesses who have testified on behalf of the plaintiff are uncertain as to the cause of Ian's disability and indeed all freely admitted that no case has ever been documented in medical literature or elsewhere which fits Ian's clinical or radiological picture.

172. The only direct evidence which has been adduced in these proceedings in support of the contention that Ian's disability results from hypoglycaemia (or a combination of hypoxic ischaemia and hypoglycaemia) is the somewhat inconclusive finding upon the MRI scan (taken during the course of the trial) of "subtle" evidence of volume abnormality (but not signal abnormality) in an area of the brain (the posterior parietal region) which, in turn is associated with brain damage caused by hypoglycaemia.

173. Accordingly what is now additionally contended on behalf of Ian is that (1) there is evidence of volume abnormality in an area of his brain which is associated with brain damage caused by hypoglycaemia (2) he sustained a bradycardia prior to his birth which may have depleted his glucose reserves (3) no notes or records are available of Ian's condition and treatment immediately after birth by reason of the hospital's inadequate system and so (4) the neonatal nursing staff of the hospital must therefore, of necessity, have failed to monitor and treat Ian either adequately or at all during the period of more than nineteen hours immediately after his birth thereby causing or permitting him to develop hypoglycaemia.

174. The evidence adduced at the trial of this action has established that hypoglycaemia is a medical term used to describe the condition of (inter alia) a new born child who develops low blood sugar levels (also known as low blood glucose levels) shortly after birth. If untreated the condition can proceed and degenerate into a condition called neuroglycopenia which is the term used to describe circumstances where the blood glucose in the brain cells of a patient becomes unacceptably low. This condition generally causes encephalopathy and if it is sufficiently severe it will cause brain cell damage which in turn (if sufficiently severe) will cause brain cell death (irreversible brain damage).

175. The evidence has also unambiguously established that hypoglycaemia in a new born infant can be effectively treated by simply feeding the child either naturally (breast feeding) or by way of a normal artificial feed containing carbohydrate which will break down producing glucose thereby raising the blood sugar level. A baby who is unable (or unwilling) to take a full feed can be treated simply and effectively by the intravenous infusion of glucose. Hypoglycaemia is a condition which is very common amongst new born infants and all nurses (but in particular neonatal nurses) are routinely trained to look for and recognise the signs of hypoglycaemia in new born infants and to treat it either by one of the two methods which have just been identified or by seeking paediatric assistance or both. The symptoms which are associated with hypoglycaemia in a neonate will not manifest themselves for a period of between four and six hours after birth [although the condition can be detected by the performance of a simple test described as a 'BM' stick which can be performed (at any time) quickly and simply.

176. It follows and it is acknowledged by all of the appropriate expert medical witnesses who testified in this case that if Ian received a normal artificial feed containing carbohydrate within the first four to six hours after he was born and if he retained that food substantially within his system then it is unlikely that he developed hypoglycaemia during the period of between four and six hours immediately after his birth.

177. The evidence adduced on behalf of the hospital (by Dr. O'Donoghue and by members of the neonatal nursing staff) has established that in 1987 the hospital system provided for the feeding of new born babies one hour after birth and subsequently every four hours thereafter. It is contended on Ian's behalf that the inadequate note taking and recording system within the "24 hour nursery" comprises evidence of an inadequate overall system for the care and treatment of neonates and that in consequence it is probable that Ian was not fed either adequately or at all either one hour after birth or four hours thereafter or subsequently and that in consequence he developed hypoglycaemia and (subsequently) neuroglycopenia.

178. Ian was admitted to the "24 hour nursery" within the neonatal unit at 5.30 pm by Sister Ann Birmingham who, in 1987 was a state registered nurse with considerable experience and qualifications in midwifery and in neonatal and developmental paediatrics. Sr. Birmingham had no memory of her observation and treatment of Ian during the time whilst he was under her care and she testified in relation to the general practice (including her own practice) within the hospital at the time and to the fact that she was quite familiar with the nature, diagnosis and treatment of hypoglycaemia.

179. She said that an examination of the records in respect of the 11th May, 1987 indicated that she was on duty within the neonatal unit on that evening and that the hospital's practice at that time provided that her term of duty would have expired at either 6 pm or 8.30 pm whereupon she would be relieved by another nurse.

180. On the evening of the 11th May, 1987 Sr. Birmingham was relieved and replaced by Nurse Geraldine McCarthy (nee Goldspring).

181. Nurse McCarthy, in evidence, stated that Mr. O'Mahony's observation of Ian between 9 pm and 9.30 pm on the 11th May 1987 at the location which he identified within the Special Care Unit was quite consistent with her practice (when she was on duty alone within the unit) of moving babies the short distance from the "24 hour nursery" into the open area of the unit so that she could maintain observation of such babies whilst attending to other infants who, by reasons of illness, had been formally admitted to the neonatal unit or to the Intensive Care Unit.

182. She stated further that she was fastidious about feeding new born infants, was familiar with the condition known as hypoglycaemia and would invariably check an infant's blood sugar levels by way of the "BM" stick test in the event of the baby either (a) refusing a feed or (b) having accepted food vomiting a substantial portion thereof. If the test disclosed abnormal or low blood sugar levels then it was her practice to call a paediatrician in the knowledge that the child would probably need an intravenous infusion of glucose.

183. Since Ian was admitted to the "24 hour nursery" at 5.30 pm on the 11th May, 1987 the hospital's practice required that he be fed at approximately 6.30 pm and every four hours thereafter. It is contended on behalf of Ian that if Sr. Birmingham went off duty at 8.30 pm then she did so having (a) failed to feed Ian either adequately or at all during the three hour period whilst he was in her care and having (b) arranged for Ian to be brought to his mother for a brief period at 8 pm before his return to an incubator in the open area of the Special Care Unit and having (c) gone off duty without reporting her failure to feed or to adequately feed Ian during the preceding three hours. It is further contended that Nurse McCarthy having taken over responsibility for Ian (and three other ill neonates) from Sr. Birmingham (presumably without having received any or any adequate information as to Ian's feeding history within the preceding three hours) also failed to feed Ian either adequately or at all thereafter.

184. Alternatively, it is contended on behalf of Ian, that if Sr. Birmingham's term of duty expired at 6 pm then Nurse McCarthy, who replaced her, and who knew or ought to have known that Ian had been born 45 minutes earlier, failed to feed him either adequately or at all (a) during the 2 hour period before he was brought for a brief visit to his parents at 8 pm and (b) thereafter throughout the remainder of that evening and night.

185. It is of some significance that throughout her confinement within the hospital Mrs. O'Mahony made no complaint in relation to the care and attention which she received from the nursing staff within the hospital. After her initial admission she was treated with kindness and courtesy and it was readily acknowledged by the expert medical witnesses who testified on Ian's behalf that the standard of nursing care (as outlined in evidence by Mrs. O'Mahony afforded to Ian and his mother was appropriate, efficient and in accordance with good general and approved medical and nursing practice (a) between the whole of the period after Mrs. O'Mahony's admission to the hospital and prior to her labour and (b) throughout her labour and (c) throughout the duration and management of the bradycardia and during Ian's subsequent birth and (d) throughout the whole of the period after Ian's discharge from the "24 hour nursery" on the 12th May, 1987 until his discharge from the hospital on the 15th May, 1987.

186. Accordingly it is alleged that whilst the standard of nursing care afforded to Ian's mother was satisfactory and efficient at all times during her confinement within the hospital and whilst the standard of nursing care afforded to Ian was similarly satisfactory and efficient prior to his birth and after his discharge from the "24 hour nursery" it was unsatisfactory and was in fact gravely and negligently inadequate for some or all of the 19 hour period during which Ian was confined to the "24 hour nursery".

187. The evidence which has been adduced in relation to the standard of nursing care which was afforded to Ian during the 19 hours after his birth has been confined (for understandable reasons) to (1) evidence of the general practice in 1987 in respect of the care of neonates who were admitted to the "24 hour nursery" (2) evidence of the general practice in relation to neonates who required to be admitted to the neonatal unit and to the Intensive Care Unit of the hospital in 1987 (3) the observations of Ian's father who visited him between 9 pm and 9.30 pm on 11th May, 1987 within the "24 hour nursery" and (4) the evidence of Sr. Birmingham and Nurse McCarthy as to their recollection of their general practice in respect of the care of neonates within the Special Care Unit within the hospital in 1987.

188. I have found that the hospital's system for recording the condition and treatment of mothers and neonates within the hospital in 1987 was broadly adequate and satisfactory but I have expressly excluded from that finding the hospital's system for recording the condition and treatment of neonates within the "24 hour nursery" during the period immediately after birth and before transfer to the postnatal unit. I have found that the hospital's system for recording the condition and treatment of neonates during that period (which in Ian's case extended to 19 hours) was inadequate and unsatisfactory.

189. It is contended on Ian's behalf that if Ian's blood sugar levels became depleted by reason of the bradycardia sustained prior to his birth or by reason of the difficulties associated with his birth then it was during the precise period of up to 19 hours immediately after his birth that he required to be adequately fed and carefully monitored with a view to preventing the development of hypoglycaemia and neuroglycopenia. The case advanced on Ian's behalf rests squarely upon the inadequacy of the nursing note taking system and the absence of nursing notes and records during the 19 hours immediately after Ian's birth. I say this because it is now claimed on Ian's behalf that his present disability has been caused by brain damage consequent upon the development of hypoglycaemia during the period of between 4 and 6 hours immediately after birth and the uncontested evidence adduced during the trial has established that Ian could not have developed hypoglycaemia if he were adequately fed by way of a normal artificial feed containing carbohydrate during that period.

190. The inadequacy of nursing note taking and the absence of nursing records during the 19 hour period immediately following Ian's birth are matters which have given rise to justified criticism and are greatly to be regretted. I accept without qualification the argument advanced on Ian's behalf by Mr. Hickey that the inadequacy of the system and the absence of the records should not serve to disadvantage Ian in a prosecution of his claim against the hospital. I am satisfied also however that the absence of nursing notes and records have no sinister significance and no serious suggestion has been made to the contrary. Accordingly I am required to determine the issue of the adequacy of the nursing care which was afforded to Ian during the 19 hours after his birth on the evidence which has been adduced throughout the trial and on the balance of probabilities.

191. At 5.30 pm on 11th May, 1987 some 15 minutes after his birth, Ian was admitted to the "24 hour nursery" within the Special Care Unit of the hospital and for the subsequent 12 hours (the most relevant period of his confinement within the unit) he was entrusted to the care of Sr. Birmingham and (subsequently) Nurse McCarthy. Both of those nurses had been expressly trained in the neonatal care of babies who were born seriously ill and who required intensive (and sometimes life saving) treatment within the neonatal unit and the Intensive Care Unit of the hospital. Whilst the system which each adopted for recording the condition and treatment of infants within the "24 hour nursery" left much to be desired the fault for those defective systems rested with the hospital for failing to design and impose an adequate system.

192. I am satisfied that extensive and detailed records and nursing notes were kept by the neonatal nurses (including Sr. Birmingham and Nurse McCarthy) in respect of neonates who were required to be admitted to the neonatal unit and to the Intensive Care Unit because I have had the opportunity to examine the notes and records in respect of some of the infants who were confined within the neonatal unit in or around the time of Ian's confinement with the "24 hour nursery".

193. Furthermore I accept the evidence of Sr. Birmingham and Nurse McCarthy that it was the practice within the Special Care Unit in 1987 for neonatal nurses (including Sr. Birmingham and Nurse McCarthy), having first consulted ad hoc notes, to verbally brief replacement neonatal nurses as to the condition of and treatment afforded to infants then confined within the "24 hour nursery".

194. I have listened carefully to the suggestions which were made in evidence (and by way of cross-examination) on Ian's behalf as to the likelihood of the neonatal nursing staff failing to feed Ian adequately or to monitor his condition by reason of error or confusion resulting from the inadequacy of the nursing note taking and the absence of nursing records in respect of infants confined to the "24 hour nursery". I have listened carefully also to the responses to those suggestions which were made in evidence by the neonatal nursing staff and the other medical witnesses who testified on behalf of the hospital. I am satisfied on the evidence that whilst it is possible that the inadequacy of the nursing note taking system and the absence of nursing records may have resulted in the neonatal nursing staff failing to feed Ian adequately or to monitor him whilst he was detained within the "24 hour nursery" it is most unlikely that Ian was not fed or fed adequately during the first 6 hours after his birth or thereafter and it is also unlikely that he was not properly monitored during the 12 hours immediately after his birth and thereafter.

195. Regardless of the adequacy of the nursing note taking system within the "24 hour nursery" on 11th May, 1987 I am satisfied on the evidence that if Sr. Birmingham (who was a neonatal nurse of considerable experience and qualification) went off duty at 8.30 pm it is most unlikely that she did so having either (i)failed to feed Ian either adequately or at all during the 3 hour period whilst he was in her care or alternatively having (ii)failed to report such a failure to her replacement (Nurse McCarthy) at approximately 8.30 pm.

196. It is of course possible that Sr. Birmingham acted in such a negligent fashion but I am satisfied that it is most improbable that she did so since (a) having admitted Ian to the "24 hour nursery" (and having made the appropriate entries in the admission book) she was aware that he needed observation (b) there were only 3 other infants within the entire of the Special Care Unit during the 3 hour period in question so that her attention was unlikely to have been diverted and (c) she was sufficiently relaxed to have arranged for Ian to be brought to his mother for a brief period at approximately 8 pm. It is also unlikely that in such circumstances Nurse. McCarthy, having taken over responsibility for Ian at either 6 pm or 8.30 pm would have made no enquiries as to his feeding history within the preceding 3 hours and would have failed to feed Ian adequately or at all thereafter.

197. I am also satisfied on the evidence that if on 11th May, 1987 Sr. Birmingham's' term of duty expired at 6 pm then it is unlikely that Nurse McCarthy ,who replaced her, and who knew or ought to have known that Ian had been born 45 minutes earlier failed to feed him adequately or at all either during the 2 hour period before he was brought for a brief visit to his parents at 8 pm or that she failed to feed him adequately thereafter throughout the remainder of that evening and night.

198. The evidence has established with relative certainty that when Ian's father entered the Special Care Unit (unannounced) between 9 pm and 9.30 pm on 11th May, 1987 he noticed Nurse McCarthy standing within a cubicle in the neonatal unit bottle feeding an infant whilst at the same time viewing Ian who was sleeping peacefully within an incubator. At that time Nurse McCarthy was responsible for the care of four infants (including Ian) and she was actually feeding one of those infants when observed by Mr. O'Mahony. That observation is not conclusive evidence that Nurse McCarthy fed Ian adequately within the first 6 hours after his birth but it is inconsistent with an absence of adequate nursing care and an adequate understanding of the feeding requirements of neonates.

199. Whilst the inadequacy and unsatisfactory nature of the nursing note taking and nursing records within the "24 hour nursery" could give rise to the possibility of error or confusion in relation to such matters as feeding times and routine tests its unsatisfactory characteristics are unlikely to have given rise to total failure on the part of the neonatal nursing staff to recognise and treat the unsubtle symptoms of hypoglycaemia which are associated with the probability of brain damage.

200. The expert testimony adduced during the course of the trial has established that the clinical signs of hypoglycaemia in a new-born child comprise jitteriness, irritability, stupor, convulsions and coma leading to a potentially fatal outcome. It established further that only severe and prolonged hypoglycaemia could cause brain damage of the kind which would explain Ian's present condition and the accompanying clinical signs would be obvious to a trained observer. Two witnesses (notably Dr. Schutt) also appeared to adopt extracts from a study by A. James Barkovich and others ("Imaging Patterns of Neonatal Hypoglycaemia", A.J.N.R. Am J. Neuroradiol 1998; 19: 523-528) suggesting that some of the symptoms of hypoglycaemia are "under recognised". This contention has been strongly challenged by the experts who testified on behalf of the hospital and who pointed out that the opinion expressed by Dr. Barkovich was unsupported either by a documented case study or by any other objective evidence.

201. It is contended that the nursing staff within the "24 hour nursery" neglected Ian whilst he was in their care (i) by failing to feed him either adequately or at all (ii) by failing to recognise the obvious unsubtle symptoms of hypoglycaemia such as seizures, stupor and coma or (iii) having recognised those symptoms by inexplicably failing to seek appropriate paediatric assistance which was readily available nearby.

202. Alternatively it is contended that Ian developed hypoglycaemia which was sufficiently severe and prolonged to cause his current disability but that he demonstrated none of the unsubtle symptoms which are associated with severe brain damage caused by hypoglycaemia.

203. The evidence adduced at the trial of this action has not established as a probability that the neonatal nursing staff failed to feed Ian adequately whilst he was in their care within the "24 hour nursery". Similarly the evidence has not established as a probability that during the 19 hours whilst he was in the care of the neonatal nursing staff within the "24 hour nursery" Ian manifested the unsubtle signs and symptoms associated with hypoglycaemia [and the potential onset of neuroglycopenia] and that the nursing staff failed to recognise those obvious symptoms (or having recognised those symptoms inexplicably failed to seek appropriate paediatric assistance which was readily available nearby).

204. A remark was apparently made to Mrs. O'Mahony indicating that whilst he was within the "24 hour nursery" Ian had been noted to be "a very cranky baby". I believe that it is of significance that Ian was apparently recognised as having demonstrated a degree of irritability whilst in the "24 hour nursery". It should not be forgotten however that a consultant paediatrician (Dr. O'Donoghue) visited the Special Care Unit at approximately 8.30 am on the morning after Ian's birth [whilst there were only four babies within that unit] and it was his practice at that time to investigate any baby whose symptoms gave cause for concern.

205. Neither should it be forgotten that the extremely detailed and exhaustive tests and investigations which were conducted to discover the cause of Ian's crankiness throughout the 6 months or so after his birth did not result in a diagnosis or finding that his distressed behaviour was caused by reason of brain damage (either resulting from hypoglycaemia or hypoxic insult or otherwise). The result of those investigations was summarised by Dr. Rosemary Manning when she told Ian's parents that Ian was "...probably simply a cranky baby...".

206. Of greater significance however is the expert testimony adduced on behalf of the hospital and which I accept, which indicated that irritability by itself (of a type which apparently recovered spontaneously or alternatively was not of a character which caused comment during subsequent post natal nursing and paediatric examination) was unlikely to have signified severe and prolonged hypoglycaemia of a type which could reasonably have caused Ian's present profound disability.

207. I am further satisfied that the evidence adduced at the trial of this action has not supported the proposition or established as a probability that (i) Ian developed hypoglycaemia in the hours immediately after birth which gave rise to his current profound disability but (ii) that he demonstrated none of the unsubtle symptoms associated with severe brain damage caused by hypoglycaemia.

208. It is of particular significance that no adequate explanation has been offered by any of the expert medical witnesses as to how Ian could conceivably have developed hypoglycaemia within the first 6 hours or thereabouts after birth of such severity and duration as to cause his present disability and thereafter have recovered from that condition spontaneously and entirely without medical intervention so that when returned to his mother (and to the post natal unit) shortly after midday on the day after his birth he was in apparent good health and was noted to be feeding initially "fairly well" and subsequently "well". The expert witnesses who testified on behalf of the hospital were unanimous and unequivocal in their view that such a recovery was "impossible" whilst neither Prof. Weindling nor Dr. Evans nor Dr. Schutt could account for this apparent anomaly.

209. Subtle evidence of volume abnormality has been discovered in an area of Ian's brain (the posterior parietal region) which is associated with brain damage caused by hypoglycaemia. It is argued that since all credible causes which could account for Ian's disability, other than brain damage caused by hypoglycaemia, have been outruled in evidence it must follow on the balance of probabilities that Ian's disability has been caused by hypoglycaemia which in turn must of necessity been caused by reason of inadequate nursing care immediately after his birth.

210. I cannot conscientiously accept that argument. Dr. King has adduced evidence buttressed by three separate epidemiological studies which provide authority for the proposition that between 33% and 40% of children with severe mental handicap cannot be diagnosed as to the probable cause of their condition. Prof. Gabriel's opinion to the contrary is unsupported by any medical literature or case studies.

211. There were significant conflicts of evidence (a) as to whether Ian was suffering from dystonia and spasticity (b) as to whether Ian was suffering from a significant fall off in head growth and (c) consequently whether or not his present disability results from brain damage consequent upon hypoglycaemia (and hypoxic insult) or mental handicap consequent upon a developmental disorder.

212. The conflicting testimony on those particular issues do not assist in the resolution of the central question which must be answered which is whether or not Ian has discharged the onus of proving on the balance of probabilities that his present disability was caused because he developed hypoglycaemia during the six hours or so immediately after his birth by reason of inadequate nursing care.

213. It is true that the expert medical testimony has not identified the cause of Ian's present disability with precision. However it is not true that the expert medical evidence has outruled all causes other than brain damage consequent upon hypoglycaemia. Clear evidence was adduced by Dr. King which was supported by expert medical studies which indicates that between 33% and 40% of children with severe mental handicap cannot be diagnosed as to the probable cause of their condition.

214. If Ian developed hypoglycaemia during the 6 hours or so immediately after his birth then he did so by reason of grossly inadequate care and monitoring on the part of one or other or both of the neonatal nurses to whom he was entrusted during that period and thereafter. I have already given reasons why I believe that it is unlikely that Ian was treated (or rather neglected) in that way.

215. Careful consideration of the conflicting evidence as to the cause of Ian's present disability has not altered my view. It has not been established on Ian's behalf in this case on the evidence and on the balance of probabilities that his disability has been caused because he developed hypoglycaemia by reason of inadequate nursing and monitoring within the "24 hour nursery" during the hours after his birth.

216. The evidence has established that the term cerebral palsy (described by all of the medical experts as a "basket term") is the description applied by members of the medical profession (and others) to a variety of different types of severe disabilities both mental and physical. The conflicting testimony adduced in this case has served merely to demonstrate that it is quite unclear into which category of disability Ian O'Mahony fits. Accordingly that evidence (whether considered by itself or together with the other expert medical testimony adduced in this case) is insufficient to ground a finding that Ian's present disability has probably been caused by reason of either (1) hypoglycaemia or (2) a combination of hypoglycaemia and hypoxic insult.

217. As I have indicated earlier the burden of proof in this case rests, as a matter of law, upon the Plaintiff who is alleging breaches of duty on the part of the hospital and a causal connection between those breaches of duty and Ian's present disability.

218. In the course of seeking to discharge that burden of proof the Plaintiff has, for legitimate and understandable reasons conducted an exhaustive and rigorous analysis of all of the relevant methods, procedures, systems and practices adopted by the hospital in 1987 together with the enforcement by the hospital of those methods and procedures and the standard of care exercised by the hospital nursing and other staff.

219. In two respects namely (1) a delay in Ian's delivery by a period between 7 and 12 minutes longer than was reasonably possible and (2) by reason of inadequate nursing records within the "24 hour nursery" the hospital's systems and procedures have been found wanting. However the evidence adduced at the trial of this action has not established on the balance of probabilities that either of those two departures by the hospital from what would be a requisite standard of care (or a general and approved practice within other comparable hospitals) has caused or contributed to Ian's present disability.

220. It follows from what I have just found that Ian's claim has failed and the assessment of damages does not rise.