Scottish Court of Session Decisions

[1] The pursuer seeks reparation for the loss, injury and damage she suffered when a consultant obstetrician, for whom the defenders are vicariously liable, failed to remove part of the placenta from her uterus at caesarean section on 18 July 1994. The issue for the Court was whether that failure was negligent and, if so, what damages flowed therefrom. The pursuer thereafter underwent a series of medical interventions. Counsel were able to agree the amount of solatium to which she would be entitled depending upon whether the various procedures could be said to follow from an initial breach of duty. It should be said at the outset that the consultant was described as caring and conscientious, a man of wide experience, and the Court has no reason to doubt that assessment of his personal qualities. Several distinguished medical experts gave evidence. Dr Gilmour, whose CV is 22/1 of process was impressive and acceptable. He has sufficiently wide experience in practical and theory to fortify the views he expressed. The equally impressive Professor Calder, who has practised and taught obstetrics since 1969, has held the chair of obstetrics and gynaecology at the University of Edinburgh for 14 years. Because of that post he has fewer clinical sessions than his NHS colleagues. Six as opposed to ten (p. 523). His evidence was given with moderation, and clarity, but I have not accepted his theory in relation to the events which took place on 18 July 1994 for the reasons referred to later. The other medical witnesses, about whom there is no need specifically to comment, were concerned with the events procedures and intervention which took place after 18 July and their sequelae.

[2] The pursuer had a previous history of two caesarean sections and three failed pregnancies. Her medical records disclose that she at no time enjoyed robust good health. She was a lady who was short in stature and had a history of growth restriction in her two previous pregnancies. The extended notes record (58.8) placental "deficiency" in her previous pregnancies; that was noted by the Court as "insufficiency" which I regard as the correct description. She had been admitted to hospital on 5 April 1994 because of bleeding and again in May 1994, because of pre-term labour. She was admitted on 17 July 1994 for delivery of her child by elective caesarean section and also for sterilisation by bilateral ligation of the fallopian tubes.

[3] After delivery of the live child and the administration of drugs to enhance uterine contractions, the consultant required to deliver the placenta. He did so by controlled cord traction. At some stage in the course of that procedure, the timing of which was uncertain, the cord snapped and the consultant proceeded to manual delivery of the placenta. Although a midwife noted that the membranes of the placenta were ragged, no information was passed to the consultant about whether the placenta was thought to be complete (p 14). The note in the hospital records recording that it was complete was written up by a midwife, who had not checked the placenta himself, after the consultant had gone on to close the wound. Another midwife of the three present at the operation had no recollection of giving that information to her colleague.

[4] The consultant recollected examining the uterus. He said that he carried out a digital examination of the uterus, as he routinely did. He described what he did as (page 9) tracing his hand inside the uterus while palpating the front of the uterus and the back of the uterus to locate any residual placenta. Such residual placenta required to be identified by touch. He said that he had found no ridge which would give a clue that a portion of placenta was retained and that the surface appeared smooth to him all the way around. The medical notes do not record a digital examination, nor at what stage the cord snapped nor that hand traction had taken place. When asked why the notes did not so reveal, the consultant said "One doesn't include all details of a routine procedure like caesarean section. There is nothing out of routine in this caesarean section". (Page 19). This seemed to the Court to be somewhat of a contrast with the recording of the "routine cleaning and draping". There can be no doubt, however, that some digital examination of the uterus took place.

[5] There is equally no doubt that a relatively large piece of placenta in regard to the size of the baby and the size of the uterus was left behind in the uterine cavity. Such a piece of placenta could not increase in size after delivery of the baby; it could only decrease in size with the passage of time despite there being evidence of some blood supply continuing until its final removal on 29 August 1994. When removed the piece measured 7.5 by 5 by 9 centimetres. These measurements indicate the volume of material left behind though not its precise configuration while still in place on 18 July. The consultant suggested that on that date the placental tissue would have been flatter and would not exceed 3 centimetres in thickness. If that were so it would inevitably mean that the other dimensions would be more significant. The consultant did not accept that the retained placenta would have had any different texture from the uterine wall and it is apparent from his evidence that his examination was only concerned with attempting to discover whether there was any ridge present which might indicate that a portion of the placenta remained in the uterus.

[6] It is of the utmost importance that the placenta is wholly delivered. Failure to do so will readily lead to problems which can be severe. (p. 13).

[7] The consultant having said without objection that there would not be a difference in texture and firmness between the retained placenta and the uterine wall, Dr Gilmour was asked about that matter. His evidence was that such a difference existed and was palpable (p 218) and that when that difference was detected a plane of cleavage was looked for. I accept that evidence. A question was put to Dr Gilmour in re-examination (312) as follows:

Dr Gilmour then went on to say that there might not have been an edge. Objection was taken to the line of evidence on the ground that there was no record for a case of fault in technique. The line was allowed subject to further cross-examination. At submission I was asked by defenders' counsel to sustain that objection. I do not sustain it.

[8] The evidence previously given by the operating consultant set out a factual basis for the way in which he performed that task and the technique he used. It was evident that that technique as described did not result in the detection of a retained placenta. It is legitimate to enquire if the retained placenta could have been detected using a different technique. If so, which was Dr Gilmour's view, which I accept, then the evidence demonstrates that the large retained piece of placenta could have been detected, had other features been considered as opposed to merely looking for an edge. The pursuer's case is not one of a departure from standard practice, it is a matter of whether there was adequate examination in the first place. The pursuer's Record particularly when looked at after the evidence led from and given by the consultant is sufficient to allow the above-noted question to be put and answered.

[9] The pursuer was discharged home on 24 July 1994, her wound being noted as being painful prior to the discharge. She was readmitted on 29 July with a vaginal discharge and lower abdominal pain. She was given an ultrasound scan which suggested retained placenta. A further scan was performed on 31 July 1994 when a dilatation and curettage procedure was undertaken which failed to remove the placenta. The pursuer was discharged home on 1 August after a decision was taken by the consultant to observe her as an out-patient. That was done but she continued to have problems with bleeding and pain; and was re-admitted with bleeding and pain on 25 August 1994. On that date an examination under anaesthesia and attempted evacuation of the uterus was undertaken. That procedure was unsuccessful and a sub-total hysterectomy was performed on 29 August 1994. The pursuer remained in hospital until 5 September 1994 with persistent low back pain and irregular vaginal bleeding. She was ultimately admitted to Law Hospital, Carluke on 23 April 1996 for further surgery to remove the remnant of her uterus and to treat her persistent bleeding problems. She underwent a laparatomy on 24 April 1996. At that time multiple adhesions were noted in the pelvis which required to be divided. Her bladder required to be opened to allow complete removal of the uterus and cervix. She has suffered continuing abdominal symptoms since that date. She required a laparotomy on 23 July 1996 when a cyst was removed from her right ovary. She was again admitted in November 1996 when cysts were found to be present on both ovaries with multiple adhesions also found to be present. She had to undergo a further laparotomy on 23 June 1998. Again various adhesions were found to be present at that time.

[10] If it been anticipated that retained placenta could not have been removed at the section it was agreed by all the medical witnesses that on a balance of probabilities, a hysterectomy would have been carried out on 18 July 1994. There was however no evidence to suggest that the remaining placenta could not have been removed, had it been discovered, without hysterectomy.

[11] The subsequent procedures which took place, essentially attempts to remove the obviously retained placenta by means of sponge-holding forceps and other instruments, were unsuccessful. These attempts required to be made through the narrow access afforded by the cervix. There was evidence that the remaining portion of placental tissue had retained a blood supply until the final removal of the uterus. This indicated that it had been adherent to some degree to the wall of the uterus on 18 July. The portion of placental tissue remained attached after the use of drugs designed to aid separation of the placenta from the wall of the uterus and for these reasons it was suggested that it was impossible at section to have discovered and removed it.

[12] There can occur, rarely, a condition known as "placenta accreta". That involves the placenta being anchored to the endometrium. In such circumstances removal would be extremely difficult even at the optimum time and conditions which exist immediately following a section. The consultant, judging from the hospital notes, thought after 18 July that Mrs Foy must have had this type of placental abnormality. That might have explained the failure to detect and remove it. His reasoning, apparently, relied on the difficulty of removal by the procedures adopted subsequent to 19 July. However, despite the continuing blood supply, this was demonstrably not placenta accreta because the piece of placenta was found lying loose within the uterus after the entire uterus had been removed in August. The placenta was therefore not morbidly adherent.

[13] Another placental abnormality was canvassed, that of a succenturiate lobe. This is an abnormal or satellite portion of placenta attached to the main body of the placenta and the uterus. It performs no function for the baby. That suggestion in the present case was made by Professor Calder. He described that as the likeliest explanation in the whole circumstances but his thinking appeared to be encapsulated at page 552 thus:

Thus, if it were succenturiate lobe, he thought that it could be readily missed. It is to be noted that he described the texture as "not dissimilar", not as identical and he took no account of the ragged membrane noted in the hospital records.

[14] The difficulty that theory poses is that it proceeds upon an assumption which the Court is not entitled to make. It is plain from the examination of all the experts' evidence that a piece of placenta of the dimensions it possessed not only should not have been allowed to remain but also that it would be expected to have been discovered. It then becomes a matter for the consultant to explain why a piece of that size did remain undiscovered by him. His original suggestion, that of placenta accreta is unfounded. The second explanation (which was not that of the consultant), of succenturiate lobe is a theoretical answer. There is no evidence that there was such a thing and in my opinion it is for the doctor who has failed to discover a significantly large piece of tissue in circumstances which were conducive to discovery to explain this failure. This is not a matter which can be resolved by speculation, it is one requiring proof, and there is no proof that there ever was a succenturiate lobe. There was no evidence for example that any such thing was visible on the ultrasound scans done before delivery and there is no evidence that there was a complete covering of membrane left on the detached portion; Professor Calder's theory depends on this. The placenta which was removed and examined by the midwife did have a ragged edge.

[15] Thus the consultant has failed to establish the reason why such a substantial portion of placental tissue was missed at section. While it is the case that portions of placental tissue usually small may remain in the uterus after delivery, the evidence was that that was rather a feature of a normal vaginal delivery than delivery by section and there is no better opportunity for the obstetrician to ensure placental tissue is removed than at section. There was very forthright evidence from Dr Gilmour at p. 237 that such a substantial piece of material should not be missed and that to miss it is something which falls below acceptable standards for a consultant obstetrician and gynaecologist. He thought that a consultant obstetrician and gynaecologist of ordinary skill and care could not have failed to identify this piece of retained placenta. I am constrained to accept that evidence and opinion. My reasoning begins with the very substantial size of the undetected material. A succenturiate lobe is a medical possibility but I am not persuaded that it is established that there was in fact such a condition here. Even if there had been, the very size of the piece of placenta which would have been that lobe left inside, in the whole circumstances could and should have been detected.

[16] Accordingly having considered the legal duties in such cases as explained in Hunter v Hanley1955 SC 200 and Bolitho v City and Hackney Authority [1998] AC 232 and the cases applied in that House of Lords authority, I hold that the pursuer has succeeded in the primary part of her case which is to establish that the retained placenta was not removed due to the fault and negligence of the consultant.

[17] It was strongly contended on behalf of the defenders that the pursuer had not proved that the placenta was removable and could have been removed on 18 July without also removing the uterus. Dr Gilmour accepted that the pursuer's situation was abnormal (283.28 ) and it was contended that Dr Grant said (pages 106 - 109) that the placenta could not have been removed. Although that was the defenders' counsel's submission, that was not in my opinion the effect of Dr Grant's evidence at that point. He was talking there about the difficulty of removing it after the wound had been repaired when access could only be obtained through the cervix. He was not speaking about the situation at section itself. Accordingly I have come to the view that there is no evidence to indicate that the placenta could not have been removed at that stage. The fact that it was difficult to remove at a later stage under difficult circumstances does not assist in the formation of a view about the earliest stage. The failure to remove the placenta on 18 July 1994 resulted in the pursuer undergoing the sub-total hysterectomy on 29 August 1994.

[18] Thereafter I do not consider that the undoubted pain and discomfort and the various operative procedures to alleviate that, which she underwent as narrated above at para [8] was the result of the consultant's failure in duty. The symptoms of bleeding and pain which followed the sub-total hysterectomy were on the balance of probabilities due to abnormal menstrual type bleeding attributable to the condition of adenomyosis and have no provable connection with the hysterectomy (see Dr Gilmour 252 - 254; 314 - 317). The later procedure for the removal of the uterine remnant was because of irregular bleeding and associated pain. (Mr Hamar-Hodges 428 - 430). There were as a matter of fact dense adhesions present at all times and in particular after August 1994 between the bladder and the appendix. None of these matters were due to the retained placenta nor to its removal by hysterectomy. They predated the hysterectomy (see p.118 and Mr Pritchard p.447-448). I reject Mr Hamar-Hodges at 410-421 and 426 in favour of the treating surgeon Mr Pickard.

[19] Accordingly the pursuer is entitled to solatium as agreed in the Joint Minute of £7,500.

The pursuer's claim for services in terms of section 8 of the Administration of Justice Act 1982.

[20] On this matter the claim has to be related to the total amount of assistance and disability the pursuer had sustained. The pursuer's position on this was summarised by the submission that because of consequences of the failure of the sub-total hysterectomy services were required until February 1995. The sum quoted by Alison Beattie, the witness who provided evidence in a report on care costs for that period when subject to a proper deduction of 30% and also of a further deduction of 25% following the report by Mr Talbot, both of which reports were accepted by the parties in the Joint Minute gives the sum of £5821. The defenders did not contest such an award for that time span. I propose therefore to award that sum with interest thereon from 18 July 1994 until 28 February 1995 at the rate of 4% and at the rate of 8% thereafter until payment. The award for solatium carries interest between the same dates at the same rates.

[20] I sustain the pursuer's first plea-in-law and award damages as above indicated.