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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beasley (AP) v Fife Health Board [2001] ScotCS 229 (10 October 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/229.html
Cite as: [2001] ScotCS 229
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD McEWAN in the cause CAROL BEASLEY (AP) for AIMIE BEASLEY Pursuer; against FIFE HEALTH BOARD Defenders:
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Pursuer: Ms Dougall; Balfour & Manson
Defenders: Anderson, Q.C.; Scottish Health Service, Central Legal Office
10 October 2001
(1) In this action of reparation the pursuer is a married woman and the guardian of her pupil child Aimie Beasley, now aged 9. The action is pursued in respect of injuries sustained by the child when she was born on 3 December 1991 at Dunfermline Maternity Hospital. An experienced obstetrician, Mr Adam, is blamed for the injuries occurring at birth as a result of the complication known as shoulder dystocia. Following the birth the baby suffered Erb's palsy and her subsequent unfortunate history is closely averred in the record. It is not necessary to detail these since damages have been agreed. The evidence in the case came from the pursuer, Mrs Beasley, and her husband, Mr Ian Beasley. Also led were staff midwife Bernadette Little and Professor Taylor. The pursuers led the evidence of Mr Adam at commission and I have a report from the Commissioner on that. The defenders led Staff Midwife Ritchie and Dr Buchan. In the course of the hearing on evidence I was referred to a number of authorities and these are as undernoted:
Hunter v Hanley 1955 S.C., 200
Bolitho v The City of Hackney Health Authority (1998) AC 232, and (1993) 4 Med. L.R. 381 (Court of Appeal)
Keenan v S.C.W.S. 1914 S.C. 959,
Walker v McGruther 1982 S.L.T.(Notes) 345,
Dollar Air v Highland Council, 11 July 1997 unreported Lord Marnoch,
Maynard v West Midland Health Authority((1984) 1 W.L.R. 634,
Hucks v Cole (1968) 1993 Med. L.R. 393 (reported within Bolitho).
(2) A number of productions were also in issue and there were several excerpts from medical textbooks produced in the course of the evidence.
(3) I turn briefly to look at the averments on record only to extract what were the live issues at the proof.
(4) On page 4 the pursuer makes a number of detailed averments as to what happened after 11.35am when she was admitted to the hospital, these summarise what happened to her and Aimie. They appear to have been taken as a summary from the partogram and midwifery nursing notes (No 7-1 of process). In Condescendence 3 the pursuer goes to aver inter alia that her position on the delivery bed was not altered (6C) and no episiotomy was undertaken or suprapubic pressure applied. It is also clear from the pursuer's averments that by the time Mr Adam arrived the baby was already seriously compromised by a continually falling foetal heart rate (bradycardia) and the presence of meconium. All this had occurred before any diagnosis of shoulder dystocia had taken place. The duties of care are specified in Article 4, they are three in number: to alter the mother's position; to perform an episiotomy; and to apply suprapubic pressure to release the trapped shoulder.
(5) It is important to establish what actually happened at the birth and in particular what was the precise position of the pursuer at the time of the birth which was 1.44 on 3 December. For the pursuer it was a second birth. I now give a brief summary of the evidence, though it will be necessary to return to some of it again in more detail. The pursuer spoke to going into labour at 11.30am when at home, her waters broke and she went to hospital. Her husband followed soon after. When in the labour ward she was having contractions and her waters ruptured again. She was put on a banded belt-type monitor. She said she was leaning back on pillows and the midwives asked her to "push". Nothing happened and eventually the midwives called for assistance. While this was happening the pursuer said she lay on her back with her feet flat on the bed and her legs splayed with knees bent. In cross-examination she did not depart from this evidence and denied she was ever on stirrups (lithotomy position) or had her legs pushed further back to her face (McRoberts position). She went on to say that when the consultant arrived he moved her husband aside tapped her shoulder and said "everything would be fine". He then delivered the baby without help. The child was then removed and after the midwife delivered the placenta the baby was returned. The pursuer was told that the baby had a "sore arm" and to be careful with her, the twisted arm and hand were visible to the pursuer.
(6) The pursuer's husband, Ian Beasley, was called. He was present at the birth and had been there for some hours before it. At the critical time he was standing to the left of his wife and in the agony of the birth he described how she gripped his shirt and pulled it from his back. He maintained that his wife lay on the bed , knees bent with feet on the bed. He was adamant that she was never on her side or in stirrups or had her legs lifted. Consistent with the pursuer he said that when the baby was born she was removed, later returned, and they were told about her sore arm. It is fair to say that in cross-examination he accepted that he had discussed his evidence with his wife and that if the hospital records were correct, on some aspects he might be wrong. He did, however, maintain that the records themselves were wrong and that he was right.
(7) One of the midwives in attendance was Staff Midwife Bernadette Little who at the time had been qualified for some four years. She said that she had successfully delivered the baby's head and the consultant, Mr Adam, the remainder of the child. She had checked this by reference to entries in the labour register which was not a production in the case. She was taken in detail through the partogram, No 7-1 of process, especially pages 21-25. Mrs Little was responsible herself for some of the entries. She told me that the partogram is a single sheet and is kept beside the patient in the labour ward. The chart entries are made by one midwife, the system being that the other midwife assists the mother and the doctor. Obviously the assisting midwife wears surgical gloves and cannot make entries in the chart. There comes a time when the chart finds its way into the nurses' duty station outside but near to the labour ward. On a desk there, are made the various hand written entries. The principal document shows that various pens and handwriting made these entries.
(8) Mrs Little accepted that she had no memory of this birth but that she knew she had delivered the head since she checked the register. She told me that the chart on 7-1 showed that between 11.45am and 12.45pm contractions of a mild to moderate rate were being recorded. Significantly, there were no further recordings on the chart after that time. She spoke about the charting of the foetal heart-rate and how it became lower to the point of distress; at 1.36pm a low rate of 70-90 was seen (normal is 100-160). In the chart the letters "FH" appear to signify foetal heart, sometimes there is an arrow pointing downwards which indicates that the rate is dropping.
(9) She said that the rate is monitored on a moveable, electrical monitor kept beside the mother. It produces a continuous graph on paper which folds out of the machine and is page number 25 of 7-1, it is known as a cardiotocograph (CTG for short). The witness was taken through a number of entries on the partogram first and then the CTG. It is quite clear from her own entries and those of others, including Staff Midwife Ritchie, that there were in fact three internal examinations of the mother (PV, i.e. per vagina) at 11.35, 1.15 and 1.35. At 1.36 she noted that there was a difficulty with the shoulders, there are no entries in the partogram about the position adopted by the mother. On the other hand on the CTG, there are two hand-written entries which say that at 12.49 the mother was moved to her left lateral position and at 1.18 was moved to her right side. The witness explained that this was the better to oxygenate the baby. The CTG has no entries for a McRoberts or a stirrups position. Mrs Little went on to describe how in a normal birth the head first appears face to the floor and is then rotated to allow the shoulders out of the birth canal. Sometimes the anterior lip of the cervix can stop the head until it is pushed over. The witness was than asked for her view on episiotomy and suprapubic pressure, she would not have recommended either and said in 1991 the latter was not a technique known to her. The other evidence about what happened at the delivery came from Staff Midwife Ritchie and of course the evidence of Mr Adam on commission and now turn to deal with that.
(10) Mrs Ritchie was the midwife on duty when the pursuer was admitted and had charge of her until Mrs Little came on duty at 1.00pm. She was responsible for a number of entries on the partogram, which I will deal with later, and which are her own contemporaneous record of what was happening. She was a highly trained and experienced nurse and became alarmed when the foetus became gradually more and more distressed.
(11) Her memory of events was guided by the notes made, the other records, her experience and her usual practice. She had at the date of the proof no memory of the delivery as such. She described how the cervix was not slipping away and the lowering of the heart rate with the type one dips. She was also concerned at the meconium staining. This is the baby's first bowel movement and there was a risk of aspiration. She followed the lowering heart rate on the chart and on the digital screen display. She made attempts to summon senior staff.
(12) She could not remember whether the mother's position was changed but believed she was put in the lithotomy position, i.e. legs up and back, preparatory to going into stirrups. She supported the baby when Mr Adam completed the birth.
(13) She said at the time (1991) it was standard practice to move the mother once the head was out but no shoulders appeared; and legs up and back would be normal. The bottom of the bed may have been down and removed and it was simply not possible that the mother would have had her feet on the bed. Then it was not standard practice to record the mother's position whatever it was: now it would be recorded. Although Mrs Ritchie knew about shoulder dystocia and some manoeuvres to deal with it, in 1991 she could not be sure that she knew about supra pubic pressure.
(14) It was my impression of the witness that she did not herself diagnose shoulder dystocia. She had seen no signs of "fat face" (turtling) or was aware the baby was large. She was not asked for how long traction took place. I shall look again at the evidence of these four witnesses and Mr Adam when dealing with later findings and in particular with the position of the pursuer.
(15) Mr Adam was the last witness to fact although his evidence was taken on commission before the proof. I note that he was called by the pursuer. That does seem a little strange to me because in the normal case a witness called by a party is usually presented as a witness to be accepted and of credit. It may be nothing to the point here but I have a slight unease at what I was told is a practice sometimes adopted now in cases like this of calling the doctor criticised as the first witness.
(16) There is a favourable report upon him by the Commissioner. What he said can be summarised in this way.
(17) He described normal birth (4-8) then shoulder dystocia, its risks and how to perform traction to bring about the birth (to page 12) and the various positions of the mother to assist the use of traction. He went on to describe the use of supra pubic pressure and episiotomy the latter of which he did not prefer especially when the head had been delivered. He then described the risks of traction which can result in Erb's palsy to varying degrees.
(18) Mr Adam (17) had no memory of the pursuer and like the nurses had to rely on the records. He was then taken through these to p 24, at which point he entered the room. He said that he remembered what he found when he entered the room. He saw the head had been delivered and thought the mother was in the lithotomy position (i.e. legs up): he then said that, ungloved, he delivered the shoulders by traction downward and backward (26). He agreed that he did not move the pursuer but that if she was not in a true lithotomy position then the bottom of the bed must have been removed. Otherwise he could not have done what he did. He said (28) that the slowing heart rate discouraged him from trying all the other alternatives. At pages 29-30 he again discussed the risks which he said he appreciated and how important was the lack of time. At 31 he described some of the manoeuvres which he might ask the nurses to do: and then stated that he had applied "moderate" traction and made that entry in the records:-
"Shoulder dystocia, moderate traction required to deliver the anterior shoulder ..."
He was not asked how long he applied traction but at 32C and 33A indicated that the timing was in seconds (see also 54-5), and that the delivery was not really difficult.
(19) His cross-examination showed him to be a doctor of great experience having worked in several places. He maintained his position about the risks of shoulder dystocia and that the likelihood was that the mother was in a "sort of" lithotomy position (41A) but not in stirrups. At 43B he described the only position where traction could be done. He did not consider episiotomy (44).
(20) What he said about supra pubic pressure was that he could not just arrive in the delivery ward and at once apply it (47B - in response to a leading question) but that he had to await contractions (50B). He said he did not know how long he could reasonably wait or what degree of foetal distress had already been suffered (50-1) (also 52E). At 53 he repeated that his preference was against episiotomy and supra pubic pressure.
(21) I now sketch in the evidence of the two expert witnesses led on either side, Professor Taylor for the pursuer and Dr Buchan for the defenders. Both of them had attended the Commission and had heard the evidence of Mr Adam. Both witnesses had impeccable qualifications and long experience in many different places and were completely credible. They were medical men of the highest eminence. In years of experience each had encountered the problem of shoulder dystocia; and they were in broad agreement that they perhaps had seen one case per year. It is my impression that Mr Adam had perhaps seen more than that.
(22) In a case such as this it is not helpful to narrate their testimony in detail and what I propose to do is to highlight the areas where they were in agreement and contrast that with areas where they disagreed.
(23) The common ground between them was in these areas which I find proved without further need of analysis. Shoulder dystocia was a very serious complication much to be feared. There were a number of risks but the main one was occlusion of the cord. That was liable and likely to cause oxygen starvation, brain damage or death if not acted upon quickly. It was a matter of agreement that this condition could not be diagnosed until the head was delivered and thereafter the baby had to be delivered at once. Both agreed that in this situation delivery could be effected by traction with a pull downwards, backwards then upwards. Straight directional traction would not do. In order to be able to perform the requisite traction the mother's position would have to be moved to lithotomy, McRoberts or left lateral.
(24) It was accepted that traction entailed risks of damage to the nerves as later described and supervening Erb's palsy. In the present case both medical men agreed that this baby had not sustained the worst injuries and from that I infer that there can have been no excessive traction. They both agreed, importantly, that if traction had been applied with the mother in the normal position with her feet on the bed much worse injuries would have been seen. In chief and in re-examination the Professor said that here traction did solve the problem with damage to only two of the eight nerves. It was not the worst case he had seen. Dr Buchan in re-examination said that traction in the normal position would lead him to expect worse injuries.
(25) Now going backwards in time into the labour and before the head was delivered there was also much agreement. In particular both had the same interpretation of the CTG and the nurses' notes. They were at one in expressing alarm at the slowing foetal heart rate (Bradycardia) and the risks of meconium aspiration. There had been about 15 minutes of slowing heart rate. This of itself did not predict shoulder dystocia. (I accept that the Professor was less clear on this point). It is my conclusion from all of this that there were no predictive factors in this labour and it must be remembered that Mr Adam did not arrive until the head was out.
(26) There was also unanimity on three other important points. It was the case that in 1991 nurses and midwives would not be likely to know or have experience of supra pubic pressure: and that nowadays much more detailed notetaking would take place by nurses. The Professor in cross-examination said that he was not surprised that in 1991 the nurses would not know. He himself had been told about supra pubic pressure by a colleague in St James Hospital. On this point they agree with the midwives Little and Ritchie. (I shall have a later final comment to make on this).
(27) There was also thirdly substantial agreement on the direction of traction to be applied; and both experts said that traction for too long would be negligence. Dr Buchan said that to pull hard for five minutes "... would be terrible...".
(28) I now move to the few areas of disagreement and deal first with matters of lesser importance. There was some disagreement about what were the best medical textbooks and I have elsewhere in this opinion touched on that topic. I do not think it is a matter that I can resolve. There was disagreement about the detail of the Apgar score and its relevance. This is a matter to be found on page 21 of the Hospital Records (No.9-1 of process). In a boxed entry four scores are given at times of 1, 3, 5 and 10 minutes after birth. A score ranges from 0 to 2 for five conditions, colour, heart rate, respiration, muscle tone and stimulus. The maximum score is 10. A score of 0 indicates a dead baby. This child after 5 minutes had a score of 9. The problem on the evidence was that the experts were not in precise agreement over the significance of some of the lower scores. Another problem is that two of the components, viz heart rate and respiration are objective while the other three are subjective. Neither expert, of course, saw the baby at birth.
(29) Having looked again at the evidence, I am not sure how great a difference between them there really was. It may be as narrow as this. The Professor reckoned the 0 for muscle tone at 1 minute indicated a traumatic birth whereas Dr Buchan was of the view that evident hypoxia had affected all the early scores and there was no traumatic birth. I do not see how I can resolve this. The evidence is balanced. There is no issue of credibility. In any case for reasons which will later appear, it is not necessary to reach a concluded view. It would have been helpful to have had Mr Adam's view on this point but there is no evidence about it from him.
(30) There was dispute on more material matters and I now come to these; they relate to the need for an episiotomy and finally supra pubic pressure. Dr Buchan was only asked about episiotomy in cross-examination and his answer was that it would depend on the perineum. The matter was not further pursued. I have a note elsewhere that when he was looking at the text books he was of the view that episiotomy was not essential and was too dramatic a solution especially in a parous mother. The Professor differed only to the extent that he said in cross that episiotomy was a matter of clinical judgment. It is now not necessary to make any finding about this but had I had to do so, the Professor's position would be my finding. It is known of course that no episiotomy was done.
(31) That leaves to be dealt with the only live issue in law: supra pubic pressure. The Professor was quite clear that he would have applied it to push the shoulder off the rim of the pelvis, if need be by doing it himself. He could not understand Mr Adam's failure to do this manoeuvre. He said that once dislodged, the shoulder would not spring back. Importantly, he said that in 1991 there was no spectrum of valid opinion on the need to perform this technique. Dr Buchan did not agree in general or in particular. He was of the view that supra pubic pressure required an assistant and unless it was sustained the shoulder would tend to spring back and again be trapped (what he called the "Chubb-Mortice analogy"). He said it was not an easy manoeuvre and that failure to use it was not negligent. It would not have been his first choice whatever others might do. He would have applied traction in the manner Mr Adam did. He said that his opinion was supported by the contemporary literature.
(32) Again it is the case that Mr Adam did not apply supra pubic pressure. Whether this is a failure in duty is a pure question of law.
(33) For the pursuer at the hearing, Miss Dougall invited me to sustain her first plea-in-law and award the agreed sum of damages. She said the law was not in dispute and in reference to Hunter v Hanley and Bolitho she said that it was necessary to prove firstly what was the usual practice in 1991, secondly, that the practice was not followed, and thirdly that the failure was such that no ordinarily competent obstetrician would do what Mr Adam did. Continuing, she argued that in 1991 there was and is a usual and normal practice to be followed when managing shoulder dystocia at the delivery of a baby. The practice was to change the maternal position to allow the trunk of the body to be drawn backwards and downwards to allow the shoulder to release. The change in position had to be either lithotomy, McRoberts or left lateral. The second thing which had to be done was to apply suprapubic pressure to dislodge the shoulder from the pubic rim. Thirdly, episiotomy could be performed but counsel accepted that it was no longer a live issue in this case since it was a matter of clinical judgement. She said it was urgent to deliver this child because of the very nature of shoulder dystocia. She maintained that if there had been a failure to change the position of the mother that she could succeed on that ground alone. The point was that if the position was not changed there was no space to perform traction and both experts agreed on that. Miss Dougall continued by alleging that the evidence showed that Mr Adam failed to follow the usual and normal practice. Referring to various pages in the report of the Commission, which I need not detail, she said it was established that he himself did not change the position. (I pause to observe that this may not be a matter in dispute). She invited me to accept the pursuer as credible and reliable, that she was never moved and remained with her feet on the bed at all times. She said it was not credible that the pursuer's position was changed in the minutes following the delivery of the head at 1.36. She stressed that the midwives said that they would not put the patient in a lithotomy position until directed to do so by the doctor. Neither of the midwives remember moving the pursuer. She invited me to accept Mr Beasley, the father, as credible on this matter also. It was clear, and indeed not disputed, that Mr Adam did not apply supra pubic pressure and that was confirmed by the pursuer. The question was whether this fell below the competence of an obstetrician exercising the normal skills of his profession in 1991. Both experts at the proof agreed that delivery without change in position would be negligence. It was known that Mr Adam did not change the position yet applied traction to the head. The inference is, on the evidence, that he did not have enough space to do so since the mother's perineum would still be resting on the bed. It was also proved that no suprapubic pressure was applied and it should have been. In the evidence there was no great different in technique between Professor Taylor and Dr Buchan on the application of suprapubic pressure. Dr Buchan accepted it as a competent technique which could be used if traction failed to deliver the baby. There was a period of eight minutes between Mr Adam arriving and the baby being delivered, and it was a matter to be considered whether he employed traction for eight minutes. If he did, then that was for too long a period and the experts agreed on that. The method used caused the baby to suffer injury to her left side and, on balance, the actions of Mr Adam fell below the expected standard and caused the injury. Although the practice now is more defined the question had to be decided on what was proper practice in 1991.
(34) For the defenders, Mr Anderson invited me to assoilzie the defenders by sustaining their second and third pleas-in-law. The onus of proof, he said, was on the pursuer to prove the omissions by Mr Adam and that these omissions amounted to negligence in the Hunter v Hanley sense causing, in its result, injury to the baby. The question of whether the mother was put in an appropriate position was entirely a matter of fact for the Court. The question of whether suprapubic pressure should have been applied was a question of law for the Court, it being accepted by the defenders that no suprapubic pressure was ever applied.
(35) Mr Anderson went on to argue that although the pursuer said she was in the normal position at delivery she had not, on the balance of probabilities, discharged the burden of proof of that fact which lay upon her. There were two sources, herself and her husband. The pursuer said she had never been moved and her legs were never moved, she was never on her side and lay the same way until and after Mr Adam arrived. Her position in cross-examination moved where she accepted that her legs may have been moved. Counsel said that her memory was also at fault because she could only remember one internal examination when there were in fact proved to be three. She seemed to be unaware of what the midwives was doing when Mr Adam arrived and it was important that at the material time she was in severe agony with childbirth. It was difficult to give credence to any suggestion that she was not moved when she did not remember these internal examinations and earlier times when she had been moved. Counsel said that the husband was unsatisfactory witness. He certainly remembered the wife's agony, crying and screaming and the damage to his clothes but he was too dogmatic about her position. Indeed, he was prepared to say that the hospital records were wrong and that he was right. Some importance could be attached to the fact that he had also discussed his evidence with the pursuer.
(36) The defenders accepted that neither midwife remembered what happened at the delivery. Staff Midwife Little said that the legs would be put further back into the McRoberts position, and the CTG must be held to be accurate in her evidence since it was not challenged as inaccurate. Staff Midwife Ritchie was clear as to what would happen with shoulder dystocia and that it was necessary and standard in 1991 to "get the legs up". She had described how the midwife would look at her colleague and do this manoeuvre. Again, in her evidence the CTG was shown to be accurate and it was the case that in 1991 a McRoberts manoeuvre would not necessarily have been recorded. No doubt practice had since changed and more detailed notes had to be taken but that was not the test in 1991. Counsel stressed to me that Mrs Ritchie was an impressive, intelligent and lucid witness who answered with great care and accuracy. Again, her evidence on the CTG was never challenged and it was inconceivable that she would not have moved the mother.
(37) Under reference to various pages in the commission, Mr Adam, counsel said, ought to be accepted as a credible and reliable witness, in particular because he did have some memory of the delivery. He remembered how he came to be there, that the head was out, and that he knew he was dealing with a case of shoulder dystocia. While he could not remember the precise position of the purser, he was satisfied she was not in the normal position. In particular, it was important to note that he had said he simply could not have done the traction manoeuvre which he did do, if she had been in the normal position. The burden was on the pursuer to show that it was more likely than not that she was in the normal position and had not been moved. The defenders' position was that in was inconceivable that she was not moved. Counsel referred me to No 7-1 of process at page 30 which was the birth plan. That showed that the pursuer was willing to accept changes of position because of her sore back. It was important to remember, he said, that the mother could not be held to be accurate over the eight minute period between 1.36 and 1.44 when she was in agony, when at earlier stages she was plainly inaccurate at a time when she was not in agony. It was of some significance that the joint minute agreed the hospital records as being accurate and the two entries on the trace were never challenged.
(38) Stressing that this point was a crucial fact for the pursuer, Mr Anderson referred me to Walkers on Evidence 12.15.1 the cases of Keenan v S.C.W.S., Walker v McGruther and Dollar Air v Highland Council. The competition in the present case was between some positive evidence for a particular position against what would have been the normal practice of experienced midwives and an experienced obstetrician in a hospital where babies were delivered regularly every other day. The midwives were not challenged on the legs being moved as an invariable practice and accordingly the Court could not find adversely against them. That being so, it was most unlikely that Mr and Mrs Beasley were correct. Although Mr Adam could not recall if he moved the patient there was a difference between him doing that and whether in fact it was done. Mr Adam was asked if he did move the patient and could not remember but what he did remember was that he believed she was in an appropriate position or he would not have done what he did. Although the midwives could not remember they did know what the proper practice was and that was to move the mother. I was invited to reject the mother's evidence and that of her husband.
(39) Counsel then moved on to the legal test related to suprapubic pressure. He referred me to the dicta of Lord Clyde in Hunter v Hanley and to the case of Maynard. He said the law was still the same as it had been laid down by Lord Clyde.
(40) In the present case two experts had given evidence, Professor Taylor and Dr Buchan, it was not a question of the Court preferring one expert to another and an expert could only be rejected if his evidence could be said to be wholly unreasonable. Counsel referred me to the case of Hucks in some detail, stressing that rejecting the evidence of an expert, even on these grounds, came close to the Court substituting its own view for that of a medical expert. The Court should be very slow to do so because it of course was not in possession of the same degree of knowledge or expertise on these matters as a medical man.
(41) Dr Buchan's evidence on suprapubic pressure contradicted that of Professor Taylor and that was enough for the defenders to succeed unless it could be shown that Dr Buchan was not competent, was not reasonable, or that the view he took was illogical. That was an impossible attitude to adopt.
(42) Finally counsel stated that if there had to be a preference between the experts I should prefer Dr Buchan. His first ground for saying this was that in 1991 the standard textbooks advocated what Mr Adam did and in so doing the books did not mention suprapubic pressure. He referred me to two standard textbooks from 1985 and 1988. One by a Mr Fairweather (No 7-3 of process) and another by Dr Jones (No 7-5). These books were not out of date in 1991 and although Professor Taylor maintained that No 7-3 had been discredited, he was referring to a period well after 1991. His second ground for saying I should prefer Dr Buchan was in relation to No 6-11 of process, a review article by Dr Gibb. It is important to note that this article which did review practice and recommend improvement came as late as 1995. Since the Professor had purported to rely on that it showed that he was applying standards of later years when knowledge had moved on to criticise something that had happened in earlier years. That was not fair or legitimate. Thirdly, every textbook which was produced at the Proof, which advocated suprapubic pressure, demanded an assistant to do it. Professor Taylor accepted that in 1991 the majority of midwives were unaware of suprapubic pressure although by now they might be. That was very clear in the evidence of Staff Midwife Little. Also Mr Adam at page 31, said that the assistant would do suprapubic pressure. Following on from this Mr Anderson said that in the evidence of Dr Buchan one could conclude that Professor Taylor was the only person who apparently could do suprapubic pressure at the same time as delivering the baby. That was not a position which should commend itself in evidence to the Court. Fourthly, counsel said that Professor Taylor was advocating the counsel of perfection and he criticised his evidence in two particular ways.
(43) The first of these relates to something known as the apgar score for the baby. Dealing with certain low scores for muscle tone, Professor Taylor had ascribed these low scores to the traumatic birth. The difficulty with that approach was that there was no evidence that the birth was traumatic. The Professor himself had said that very little suprapubic pressure would be needed since the delivery was easy. (See Mr Adam page 55 in the Commission.) Accordingly the Professor's evidence was inconsistent because the delivery could not be traumatic and easy. On balance, the low apgar score was due to cerebral hypoxia and not to any question of the trauma of the birth which produced Erb's palsy. Secondly, counsel drew attention to certain answers that the Professor gave at the end of his cross-examination condemning the practice of any other person who would not have applied suprapubic pressure. That, counsel said, was to judge by the standards of today and not by those of 1991. In conclusion, Mr Anderson finally had something to say about the eight minute period after Mr Adam arrived. He stressed that it was never asked of Mr Adam that he had applied traction for the whole of that period. Indeed that would have been most unlikely. It was a fair reading of the evidence said counsel that at 13.36 there were no clues about shoulder dystocia. It was not known whether the baby had a "fat face" as was much discussed in the evidence of Staff Midwife Ritchie. If it had had such a face that might have given a clue but the evidence on that was silent and there was nothing in the notes about it. The fact that the child's face would be blue would not give any clue as to the position of the shoulder. On balance, the likelihood was that Mr Adam would have to wait between two and three minutes to the next contraction before any attempt was made to deliver the shoulders. Whether Staff Midwife Little tried and failed or Mr Adam did, it did not matter. The next contraction would not be before 13.41 and it was known that by the contraction following that the child was delivered. Accordingly, there was no warrant whatever for suggesting that he had applied traction for eight minutes, never mind the fact that it was never put to him. In these circumstances the defenders should be assoilizied.
(44) A number of authorities were referred to and I now deal with these beginning with the cases on the law of evidence. In Keenan v SWCS 1914 S.C. 959 a father sued for damages on behalf of his daughter who had been run over by the defenders' car. A jury gave a verdict for the pursuer. The defenders sought a new trial on the basis that the verdict was contrary to the evidence. The pursuer had alleged that the car driver was not keeping a good lookout as he was talking to a man seated beside him. Three eyewitnesses for the pursuer spoke to the presence of the other man both in chief and cross-examination. The defenders led a number of witnesses, including the man, to the effect that he was in the car but not seated beside the driver. None of these witnesses was cross-examined on this point. This failure meant that the pursuer was accepting their evidence and by implication discrediting the evidence of his own witnesses. It is not difficult to see why the First Division concluded that the verdict was contrary to the evidence and allowed a new trial.
(45) The case is now said to be "special" (see Walker on Evidence, 2nd Edition, page 193 footnote 197) but it has never been overruled.
(46) In Walker v McGruther & Marshall 1982 S.L.T.(Notes) 345 the question was who was driving a lorry at the time of an accident. The alleged driver was not specifically asked whether he had been driving; but it was clear that he was cross-examined on the footing that he was not a reliable witness. The Lord Ordinary declined to hold him as reliable on the one point not put to him.
(47) Finally there is the unreported Outer House case of Dollar Air Services v Highland Council 11 July 1997: Lord Marnoch. The case concerned a helicopter accident. It struck a tree when landing at night in a field. It was collecting ballot boxes at a General Election. An issue was, what had been said by the pilot in a telephone conversation with a Council representative about where landing lights were to be placed. The pilot was not cross-examined about what he had said in the conversation. The Lord Ordinary took the view that such a failure made him disinclined to make adverse findings on credibility of the pilot; even when accepting the defender's account of what was said.
(48) A few cases of medical negligence were looked at beginning with Hunter v Hanley 1955 S.C.200. The case is so well known that I do not intend to rehearse it again but simply see how it has been applied in the other cases cited to me.
(49) Maynard v West Midlands Regional Health Authority (1984) 1 W.L.R. 634 was cited. Mrs Maynard took ill and on examination by her doctor tuberculosis was the most likely cause. However, other possibilities emerged one of which was the fatal illness of Hodgkin's disease. A sputum test could have been done but that involved delay. Two doctors advised that she should undergo a small diagnostic operation which carried certain risks even when correctly performed. It was properly done and resulted in vocal chord paralysis. Thus the allegation of fault was said to be an error of judgement in requiring the operation to be undertaken. The plaintiff led a very distinguished expert to criticise what was done; the defendants severally equally distinguished experts who expressed approval of what was done. At 639 Lord Scarman said this:
"... I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred ... for in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor ... is necessary ..."
Hunter v Hanley was cited with approval and, unusually, the House reviewed the evidence. The trial judge had found against the doctor whom he had classed as an expert and distinguished in his field. Lord Scarman at 640 found that such an approach could not be supported in the face of the:
"... existence of a strong body of evidence given by distinguished medical men supporting and approving of what he did in the circumstances of this case as they presented themselves to him at the time when he made his decision ...".
The plaintiff's appeal failed.
(50) I now look at Bolitho v City and Hackney Health Authority first in the Court of Appeal at (1993) 4 Med.L.R. 381 and then in the House of Lords (1998) AC 232. A child of two was admitted to a London Hospital with croup. He improved, was discharged but had to be re-admitted with breathing problems. The nursing staff became concerned and tried to summon doctors. The senior paediatric registrar failed to come and the child collapsed suffering brain damage. It was accepted that it was negligent not to attend but the question was whether she would have intubated the boy if she had. Her evidence was that she would not have done so. There were sharply conflicting views of experts on both sides as to whether it was desirable to intubate.
(51) The majority of the Court of Appeal held that the trial judge was not equipped to resolve the medical issues without the assistance of the experts and he could only reject the views of experts if the view was Wednesbury unreasonable i.e. views such as no reasonable body of doctors could have held.
(52) Before proceeding further with Bolitho, I now pick up the case of Hucks v Cole (1968) reported as part of Bolitho in (1993) Med.L.R. 393. I do not need to deal with the case in any detail. It concerned the failure of a doctor to treat a septic spot with penicillin. The case is rather special and did not truly reveal a conflict between two schools of medical opinion. The Court of Appeal took the view that the views of the experts did not stand up to rational argument, given that a serious risk could have been avoided easily with minimal disadvantage to the patient. Let me now return to Bolitho.
(53) In the House of Lords the court did not differentiate between causation and medical negligence. At 243 Lord Browne-Wilkinson said this:
"... in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by two experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible ...
"... I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgement - which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.
" I turn to consider whether this is one of those rare cases ..."
(54) I should say a little about some of the excerpts from medical books which were produced only insofar as they were spoken to by the experts, and so far as I hold them relevant in the circumstances of the case. Not all need be looked at: and in the main they concern supra public pressure.
(55) There are two matters to be noticed. The first is one of law. In my opinion the books which may show best practice can really only be the ones which doctors and midwives were reading before and up to 1991. Any received wisdom after 1991, while of importance, I cannot hold was within the knowledge, training and experience of doctors working in 1991.
(56) The second is a matter of fact as to how supra pubic pressure is actually applied and as to that almost all of the books speak with one voice. They tell me that it is a technique which needs an assistant to the "accoucheur", and that the assistant applies the pressure. The majority of the texts and the illustrations seem to make this clear. Also Dr Buchan said, without contradiction, that the pressure is never applied by the accoucheur. This is no doubt due to best practice of the assistant doing it; but also to the obvious fact that the doctor cannot apply the pressure and at the same time use traction with both hands on the head. If the pressure is released the shoulder will spring back. (The analogy given was the difference between a spring held Chubb lock and a sliding mortice lock.) The Professor was not asked about this detail. In fairness to him he said he would apply supra pubic pressure himself. In the excerpt from De Lec (6-13) there appears to be an illustration of the accoucheur applying traction and supra pubic pressure.
(57) Let me look at some examples. No 6-9 (Myles) 1985 p 440 and 654 (No 7-2F) speaks of the need for an assistant. Myles is a textbook for nurses and does talk of supra pubic pressure. I have a slight query why the nurses in 1991 may not have known of it. So does Holland (1959) No 6-10 at 780. Number 7-2E (reports 1980's) at p 206 agrees. Hibbard's Principles of Obstetrics (1988) (No 7-2I page 555 again speaks of an assistant applying the pressure and shows (Fig. 30.28) one doing it. O'Leary (1990) 7-2J agrees (page 8).
(58) I note also, for what it is worth, that in 7-2D (an American analysis by Dr Nocon and others in 1993) pages 1736 and 1737 tell me that no one technique can be chosen over another to deal with shoulder dystocia. As the authors say:
" no protocol should serve as a substitute for clinical judgement ..."
(59) Neither of the experts seriously argued against this body of opinion. Professor Taylor was critical of a few texts but this left others untouched. Dr Buchan speaking of Jones (No 7-5) said that the first alternative on page 324 was what Mr Adam did and he approved of it.
(60) I also have to assess all of this against the case that on the evidence neither midwife in 1991 had in fact any experience of supra pubic pressure (in spite of what Myles says) and for what it is worth the Record places the duty of applying the pressure on the doctor. Most of the texts in 1991 would not have recommended that.
(61) With the benefit of this argument, the written argument submitted for the pursuer and the cases what findings in fact and law should be made.
(62) It is firstly important to make certain findings about the timing of events. Most of this is not in dispute and comes from the witnesses themselves and the hospital records which are held as accurate in the joint minute. I have already referred to some of the evidence in general terms and it is now necessary to revisit some of it again in detail.
(63) On 3 December the pursuer went into labour in her own home about 11.00am. She went at once with her aunt to hospital and was admitted at 11.35. Mrs Ritchie's note on the reverse of the partogram (page 23 of No 7-1) for that time tells that she was admitted with a history of regular contractions since 10.30; the head was 3-5 palpable. A vaginal examination is recorded disclosing that the cervix was effaced, and 5 to 6 centimetres dilated. Her waters ruptured during this examination and the sister observed meconium (i.e. green liquid). It is recorded with two plusses (i.e. plus plus) and this indicates that it was significant. It was draining. The foetal heart rate was noted at 152 after the procedures. That is an acceptable figure as the normal range is 120-160. An electrode was applied to the mother. Also noted was "Position? ROA" which means that the head was not out. ROA means right occipital anterior. The note "station-1" means one centimetre above ischial spine. The electrode attaches from the mother to the CTG machine and produces a trace on graph paper of the foetal heart rate. The trace begins at 11.50 and shows the figure given by Mrs Ritchie.
(64) She made another entry at 1.15 but by this time the foetal heart rate was dropping as the trace on the CTG shows. The nurse recorded that the pursuer was pushing but there was nothing to see. Another vaginal examination was made and it is recorded that the cervix was not slipping away. The nurse records in handwriting what the trace shows, that the foetal heart rate was dropping (F.H. ↓) with type one dips ands slow recovery. She also records that Sister Lillie was informed. Contemporaneously on the CTG at 12.44 is noted that the pursuer was sitting up in a chair or standing and by 12.49 that she was moved to a bed and placed in the left lateral position.
(65) In the ten minutes between 1.25 and 1.35 there is an entry, the authorship of which I am uncertain, but is probably Sister Lillie. These entries are to the following effect; that Dr Logman was informed about the foetal heart rate but was not available. The paediatrician was "bleeped"; there was no reply; five minutes later he was bleeped again; Dr Loqman was still not available; Dr Yeap was contacted and at 1.35 the paediatrician was contacted (all of these entries as with the CTG are made on the 24 hour clock).
(66) At this time from the CTG it is to be noted that the vaginal examination at 1.15 was written on the trace (P.V. 1315 hrs) and at about 1.17 the patient was turned on to her right side. As is obvious from the chart the foetal heart rate continued to drop. The nurses would also be able to follow this as the monitor shows also a digital display of the rate. Also I note that Mr Adam was not paged but, as events will show, arrived unexpectedly at 1.36. By 1.44 the baby was born and as Mrs Ritchie said "... a lot happened ..." in that nine minute period. I now move to examine that.
(67) I deal first with the summary on the partogram which is supported in the evidence of the two midwives and Mr Adam. Sister Ritchie recorded that Mr Adam arrived at 1336. This time is very important because any allegation of negligence against him can only begin from that moment on. This is not a case where a doctor has had long close involvement with a patient and is then subject to a detailed criticism. As events showed, if any negligence occurred it was between 1.36 and the birth some nine minutes later.
(68) It is recorded that he arrived by which time the foetal heart rate was 70-90. Contemporaneously Mrs Ritchie noted that there was preliminary preparation for forceps. That is noted within brackets. She added that the head advanced quickly + + and was delivered with one contraction.
(69) The final entry which has no time was made by Sister Lillie. It says:-
"no cord felt. Difficulty to deliver shoulders. Mr Adam assisted. Cord round shoulders. Mr Adam delivered baby - cord clamped and cut."
(70) There are no more entries and the question is what inferences in fact were drawn from these notes, as interpreted by the witnesses, by Mr Adam and what did he then do. As to this it is fair to point out that no question of credibility arises. The issue is one of reliability and inference since none of the nurses and doctor present has any clear memory of what happened at this delivery.
(71) What is critical in this nine minute period is what the nurses and obstetrician did and what was the position of the mother. The mother was described, rightly in my judgement, as a "petite" woman. She was 4 feet 11 inches tall; nine stones in weight and the baby was 9 pounds 4 ounces at birth. There was no dispute that the baby was in the top 10 percent of baby weights for all babies: and for this mother was a big baby. Some five years earlier she had had another baby.
(72) Before dealing with these vital issues it is of help to note (a matter not in dispute) what happens at a normal birth. Most of the witnesses, especially Professor Taylor gave, in general and in detail, helpful evidence about this. It is a matter governed by the laws of natural science.
(73) When a baby is born without complication the head, rotating on the neck, presents first and the face is pointing downwards. The head is then rotated to one side. The shoulders turn or half turn in the pelvic canal. This is likened to going through a narrow door sideways. The witnesses also described such a normal birth as a kind of corkscrew movement. The reason is due to the anatomical construction of the female pelvis. The upper rim is circular but slightly wider in the transverse plane than it is in the anterior posterior plane. By contrast the outlet on the underside of the symphysis is oval but wider in the anterior posterior position.
(74) Once the head is out the baby rotates so that the widest shoulder diameter takes advantage o the longest diameter of the mother's pelvis. The head, already outside, rotates too with the baby looking at one or other of the mother's thighs. Normally the baby will emerge with guidance and the mother pushing. Once the head is out the rest of the baby should be delivered in five to eight minutes. The midwife ensures that on a normal delivery the baby does not fall.
(75) In the present case at 1.36 the head of the baby appeared. The background to this was of declining foetal heart rate with slowing recovery and meconium staining. As the chart shows the nurses were concerned and were trying to summon help from other medical staff. Once the head was out the rest of the baby would have to await the next contraction. On the evidence and the chart that would be expected in about 3 minutes. At this point there would be no signs or clue of the risk of shoulder dystocia. I wholly accept Dr Buchan on this point when he said there were no predictive factors (in chief at start of his evidence).
(76) What the nurses would know and appreciate was that the falling foetal heart rate sent a red danger signal that the baby was by then at serious risk of hypoxic ischemic brain damage (HIBD) and possible death if not quickly delivered. It was highly likely that the umbilical cord was trapped by the baby's neck or shoulder and to occlude that cuts off blood supply to the brain.
(77) This is what confronted Mr Adam and it is now important to revisit his testimony and find in fact what he appreciated and did. His evidence was taken on commission. The Commissioner as I have already said has provided me with a favourable report on credibility and reliability. Therefore, unless plainly wrong or contradicted by overwhelming contrary evidence (which he was not) I accept what he said. It also has to be seen against the complications of shoulder dystocia. That occurs when the anterior shoulder of the baby becomes stuck on the top of the public symphysis and will not rotate or make the necessary half turn to allow delivery. The condition was described as well recognised but not terribly well known. Both expert witnesses had not encountered many cases in years of experience. The nurses knew of the condition but, I suspect, not well in 1991. The risk with dystocia is a break in oxygen supply.
(78) Mr Adam clearly remembered that when he arrived the head had been delivered (p 28). He looked at the CTG and appreciated the slowing foetal heart rate which by then was about 70-90. He said that at the time he did not think this slowing rate would recover (29A) and with the risk of hypoxia his choice was for rapid delivery. His next answers at p 29-30 are I think critical and central to the findings I now make.
(79) I find in this case that Mr Adam was fully aware of the risks he faced in that short time. I say risks (plural) because he correctly identified two of these. There is a risk associated with shoulder dystocia that if the baby's head is rotated and traction is used the brachial plexus can be damaged; that is to say the group of nerves passing through the spine to serve the muscles of the arms. Traction against the resistance of the shoulder may stretch these. The resulting injury is known as Erb's palsy which can happen in several degrees and indeed occurred here to a moderate degree. If the doctor has plenty time he may be able to apply techniques to lessen this risk.
(80) However, the second risk which he identified was that the dropping heart rate showed that this baby was already seriously distressed and may have already been brain damaged or at risk of dying. He knew he had very little time to decide what to do as he awaited the next contraction. Having been asked about the trace (p 28F) he said this:
"... I just noticed that it had become very slow and it had been progressively slowing and the interpretation there is that it wasn't going to recover ..."
and at 29B:
"... I felt that the greatest risk was cervical hypoxia and I felt that rapid delivery was the choice ..."
(81) He then pointed out the problem of the short time in this answer:
"... If at the time you had diagnosed shoulder dystocia, if the baby has had an absolutely normal foetal heart rate up until then you have more time because the baby has not been, it is not at risk, it has not been exposed to foetal distress before and I think that when you see foetal distress for that length of time you don't know what effect that has had on the baby. You do know that it has a slowed down heart and it has got meconium staining so you know that it has been distressed. Now you don't know from that in advance know much distress, how well it will recover ..."
(82) I have quoted this answer in full as in my opinion it is very significant and identifies the whole problem. Later at 29-30 he again emphasises that it is only when you have time to spare without distress or meconium that you can wait. He said (30) that he had to decide between the risks of Erb's palsy and possible brain damage and was also aware that before he could apply supra public pressure he would have to wait for the next contraction. That is why he applied, as described it, moderate traction downwards and backwards (26) for a short time (see 33) without the need to wait for contractions and delivered the child in one attempt (54-5).
(83) He accepted that he did not do an episiotomy or apply supra public pressure. At 45 and 53 in cross-examination he explained his reasons both in general and in relation to when matters were less urgent than the case he faced. He would not have done an episiotomy because the pursuer was not a "prima gravida" and because the head was already out. He would not have applied supra pubic pressure because of the shortage of time (50-51). For reasons which will later appear; I consider that his clinical judgement on all the matters facing him in the nine minutes was sound and the procedures he adopted were in accordance with the highest medical standards. Guided no doubt by his experience and his correct interpretation of the trace he acted in a way any competent obstetrician would have done.
(84) I now move to deal with my critical findings about the position of the mother at birth. I have already set out in general what is the evidence on the point. The pursuer's evidence is quite clear. She said she never changed position and her feet never left the bed. She denied her legs were moved. It has to be remembered that she was in agony at childbirth and her evidence about changes in position is contradicted by the CTG entries which are deemed to be accurate. Also her memory of the various internal examinations is suspect. This is no criticism of her credibility at what must have been a painful and difficult time. It does, however, make her less than reliable.
(85) Ian Beasley is the only support for this affirmative stance. He was an unsatisfactory witness. He was dogmatic and showed a lack of objectivity. He was at one stage prepared to say that his recollection was better than the hospital records and that they must be wrong. Later he altered his position on that. That concession had to be forced from him and he was reluctant to make it. It is also of some importance to note that he had discussed his evidence with his wife. I also took account of what was happening at the time. The husband described how he stood at his wife's head and she was holding him "... by the shirt ....". When she was in the agony of labour he described how she pulled the shirt off his back, ripping it. I doubt that his evidence is reliable as to her position and I reject it.
(86) There is no other direct contrary evidence and no other witness purported to remember with any accuracy the mother's position. It is, however, possible to deduce from other facts what her position must have been. It is a matter of inference and it arises from what is contained in the other facts incontrovertibly proved. The CTG trace notes and the other notes show that the mother's position changed. At 1.36 she was to be prepared for forceps. That means the lithotomy position (legs raised). How far that was taken is not clear.
(87) I was impressed by the evidence of both midwives Little and Ritchie. They could not remember the birth but both said normal practice would be to raise the legs. Mrs Little in cross said that the legs would assume a McRoberts position, the midwives pushing the feet back. Mrs Ritchie in chief said that in 1991 legs back would be the normal position and she believed that the pursuer was in fact in the lithotomy position. Neither witness was challenged on this, the normal practice.
(88) There are two final pieces of evidence on this point. I have already remarked that Mr Adam was called for the pursuer. There are certain risks in doing that and the pursuer has to accept the best and worst of his evidence unless it is plainly wrong. I have already narrated what his evidence was about the position of the mother, i.e. lithotomy or left lateral. What, however, is significant is what he said about downward and backward traction. In re-examination he said that was not possible if the bed was under the perineum (page 57) and he would never have tried to do it. From that I infer that the mother was moved to make this traction possible.
(89) The matter does not end there, however. Both Professor Taylor and Mr Buchan agreed that Aimie's injuries at birth were not the worst. The Professor said there was 80% full nerve recovery, with only two of the eight nerves being damaged. Mr Buchan said that if traction had been used with the mother in the normal position much more serious injuries would have been found. It was my impression that the Professor did not dispute that view.
(90) For these reasons, on the evidence which I prefer, I find that the mother was moved either to a lateral position (probably left lateral) or to a position approximating to McRoberts before any traction was performed.
(91) I reach the same conclusion on the authority of Keenan which here is in point. I accept that the case was and is regarded as special; but where the account of one side is not reliable (as here), and the account of the other is not challenged, then I have to prefer it if that account allows of the inference sought to be put upon it. Here I hold that such an inference is open to me and it is one which I do make.
(92) I now return to deal with some of the medical cases in the light of my findings. In spite of a very able, careful and well presented argument by Miss Dougall, I am of the clear view that the pursuer cannot succeed. The reasons for that are what is proved and what the law is at present.
(93) I have already found Mr Adam to be a credible and reliable witness. It has to be stressed again that he was faced with a serious emergency and his actions have to judged in that light. Earlier I quoted Lord Scarman in Maynard and to paraphrase again what he said at page 640; the court has to make its judgment of what Mr Adam did in the circumstances of the case as they presented themselves to him at the time when he made his decision. That decision was to deliver in the best and safest way an already seriously compromised baby who may by then have been brain damaged. He only had a few minutes in which to act. The mother was already in an appropriate position.
(94) Having made the correct diagnosis of shoulder dystocia and applied traction to deliver the child he can only be held to be negligent if there is a usual practice to apply supra pubic pressure (which he did not do) and the application of his moderate traction was something which no doctor of ordinary skill would have don if acting with ordinary care (Hunter v Hanley).
(95) On the evidence that case is simply not proved. Supra pubic pressure on the evidence before me is not some easy step to avoid without any disadvantage the risks which faced Mr Adam. Time was not on his side. The case of Hucks can be distinguished on its own facts. Mr Adam's own view of this technique is entitled to weight and respect. He did not use it as there was not time. The two expert witnesses are divided on whether or not they would have applied it and how it would be done. The attending midwives had no experience of it.
(96) In law, it is not open to me and would indeed be wholly wrong to prefer one expert witness over another in this case for these reasons. Firstly, the evidence is equally divided (leaving Mr Adam out of account) and so on the evidence there is no clear weight of medical opinion: secondly there is no body of medical opinion one way or another in the literature; and even if there was I am not competent to pick and choose in medical texts. Thirdly, Dr Buchan as I have found, gave a truthful opinion which he honestly held; and fourthly, it would be perverse of me to say that his opinion was one no reasonable body of doctors could have held.
(97) Accordingly I hold that in 1991 there was no usual practice to apply supra pubic pressure; and that to apply traction was something which would have been done by a doctor of ordinary skill acting with ordinary care. There is therefore no need for me to express a preference between the experts on matters of detail.
(98) Before dealing with the interlocutor I wish to add a postscript about Professor Taylor. He was and is a very impressive man and witness. He gave great assistance to the Court. He was a man who is ahead of his time and always seeking after the highest standards of excellence - that is a great virtue in a doctor and a comfort to us all. If I have any criticism to make, it is that he may have judged what occurred here by standards too high for 1991 but has done so out of care and enthusiasm for his profession of medical care.
(99) In the result the interlocutor will repel the pleas-in-law for the pursuer: sustain the defenders' second and third pleas-in-law and grant absolvitor. The case will require to appear before me for a hearing on expenses and any questions of certification and other matters.