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Gerrard & Anor v. Royal Infirmary of Edinburgh NHS Trust [2002] ScotCS 11 (11th January, 2002)

OUTER HOUSE, COURT OF SESSION

A120/01

OPINION OF LADY PATON

in the cause

(First) MARGARET BROWN GERRARD (Assisted Person) and (Second) RAYMOND ALEXANDER WADDELL GERRARD (Assisted Person)

Pursuers;

against

ROYAL INFIRMARY OF EDINBURGH NHS TRUST

Defenders:

________________

Pursuers: Hajducki Q.C., Summers; Campbell Smith W.S.

Defenders: J.R. Campbell Q.C., D.B. Ross; Scottish Health Service Central Legal Office

11 January 2002

The pursuers sue the Royal Infirmary of Edinburgh NHS Trust, alleging negligence on the part of a senior registrar in obstetrics and gynaecology who had responsibility for the care of the first pursuer during the birth of twins. The first twin, Raymond, was successfully delivered per vagina at 7.52 p.m. on 23 June 1996. However the second twin, Sandy, when delivered at 8.31 p.m. by emergency Caesarian section, was in poor condition. After resuscitation and two days on a life-support machine, he died. Post-mortem examination showed that he had suffered asphyxia during labour and delivery. The pursuers claim damages in respect of the death of their son, in terms of section 1(4) of the Damages (Scotland) Act 1976.

At a proof before answer, counsel for the pursuers led the evidence of the senior registrar involved, Dr. R. M. Camille Busby-Earle (aged 39 at the date of the proof, and by then, a consultant obstetrician and gynaecologist at the Royal Infirmary, Edinburgh). Counsel for the pursuers also led the evidence of a consultant obstetrician and gynaecologist Dr. A. F. John Atkins (aged 64), and a consultant paediatrician specialising in neo-natal care, Dr. Sunil Sinha (aged 52). Counsel for the defenders led in evidence Dr. Alistair W. F. Miller (aged 63), consultant obstetrician and gynaecologist, and Professor Neil McIntosh (aged 58), a professor of child life and health specialising in neonatology. Both Dr. Atkins and Dr. Miller listened to the entire evidence of Dr. Busby-Earle. Dr. Sinha listened to the cross-examination and re-examination.

By Joint Minute, parties agreed that:

"In the event of the defenders being found liable to make reparation to the pursuers in respect of the death of Sandy referred to on record, the amount of each pursuer's loss, injury and damage is Ł12,500 inclusive of interest to date upon which interest should be applied at the rate of eight per cent a year from the date of decree until payment."

The issues in dispute were therefore (i) whether there had been any professional negligence, and if so, (ii) whether that negligence had caused or contributed to Sandy's death.

The senior registrar

Dr. Busby-Earle graduated M.B.Ch.B. in 1987. She completed her training in surgical and medical house jobs in Borders General Hospital in 1987-88. In August 1988 she became a senior house officer in obstetrics and gynaecology at the Royal Infirmary, Edinburgh. She then became a registrar. She was appointed a lecturer in the Department of Obstetrics and Gynaecology. In 1995, she became a senior registrar.

History of the pregnancy

The first pursuer became pregnant with twins in late 1995. She was then aged 28, and was in good health. She had four healthy children, each of whom had been normal babies, delivered normally. She had experienced one miscarriage prior to the births of her four children.

In early 1996 the first pursuer began attending the antenatal clinic of the Simpson Memorial Maternity Pavilion ("the Simpson"). Some evidence was led about the initial stages of the pregnancy, but nothing appeared to turn on these earlier events.

On 22 June 1996 the first pursuer was 36 weeks pregnant. She was experiencing bleeding when passing urine, and was admitted to the Simpson. The first twin, Raymond, was noted to be in a longitudinal lie with a cephalic presentation (head towards the birth canal). The second twin, Sandy, was noted to be in oblique breech presentation, i.e. lying at an angle with the buttocks rather than the head near the birth canal. The condition of both twins was noted to be satisfactory.

The hospital notes and the evidence of Dr. Busby-Earle revealed that the pursuers had received conflicting advice about the mode of delivery for the twins. In particular they had heard differing views about the merits of attempting a normal vaginal delivery as opposed to an elective Caesarian section. Dr. Busby-Earle met the pursuers for the first time at 10.30 p.m. on 22 June 1996, and undertook to have matters clarified by Professor Calder, the consultant in charge. Dr. Busby-Earle hoped that Professor Calder would be able to see the first pursuer the following day, 23 June 1996, at about 11.00 a.m. after a ward round.

On 23 June 1996, Professor Calder was not in fact free to meet the pursuers until about 4.00 p.m. Professor Calder's notes of the meeting (page 51 of number 6/3 of process) were as follows:

"4.15 p.m. I have explained that vaginal delivery is in the best interests of mother and babies unless any complication arises. Margaret and her partner seem to have accepted this. In view of VE [vaginal examination] findings today and the fact that the head seems to be in the brim she may be going into labour. For repeat VE early this evening and ARM [artificial rupture of the membranes] if cx [cervix] 5 + cms. dilated."

The professor's recommendation of vaginal delivery was fully supported by Dr. Busby-Earle and by the two obstetric consultants, Dr. Atkins and Dr. Miller. Dr. Busby-Earle listed risks of Caesarian section as including haemorrhage, injury to the gastro-intestinal tract, injury to the urinary tract, problems arising from anaesthesia and respiration, headache, hypotension, thrombo-embolism, and the general peri-operational risks arising from major abdominal surgery. Dr. Miller also described Caesarian section as a major abdominal operation. He defined some of the associated risks as intra-uterine or wound infection, inflammation of the veins, blood clots in the veins, blood clots in the lungs, and urinary tract infections. Dr. Miller estimated the risks to the mother arising from Caesarian section as being five times greater than vaginal delivery, although in cross-examination he accepted that the level of risk during childbirth was generally very low in the United Kingdom. In particular, the mortality risk for mothers undergoing Caesarian section was far below one per cent.

There was further general agreement amongst the medical witnesses that the position of a second twin often changes after the birth of the first twin. Accordingly the breech position of a second twin would not necessarily be his final position just before birth.

Delivery of the first twin

At 5.50 p.m. on 23 June 1996, the registrar on duty, Dr. David Howe, noted that the first pursuer's cervix was dilated to 5 centimetres, with bulging forewaters, and that the vertex of the first twin was about 1 centimetre above the ischial spines.

At 6.30 p.m. the first pursuer was transferred to the labour ward. She was noted in the medical records number 6/3 of process, page 53, as being "in early labour; for ARM; contracting 1 in 4". The twins' heart rates were noted as 130 and 118 respectively. At 6.40 p.m. a controlled artificial rupture of the membranes was carried out by Dr. Busby-Earle. The medical notes record: "copious clear liquor +++. FSE [foetal scalp electrode] applied once Vx [vertex] well applied" (page 56 of number 6/3 of process).

Dr. Busby-Earle explained that a foetal scalp electrode monitors the heart rate of a baby in the womb. Where there were two foetuses, one foetal scalp electrode was applied to the baby's head per vagina, and the other - an abdominal transducer - was applied to the mother's abdomen. The transducer was described as a disc about 3 inches in diameter, attached by wires to monitoring machinery, and retained in position on the mother's abdomen by a belt. The belt tended to be removed at the second stage of labour, for the mother's comfort, and the transducer held in position on the abdomen by the midwife's hand. Dr. Busby-Earle confirmed that the abdominal transducer had been hand-held in the first pursuer's case.

Dr. Busby-Earle instructed the midwifery staff to allow the first pursuer to progress. She intended to reassess the first pursuer after 4 hours unless, as the entry in the medical notes recorded, "[the first pursuer was] expulsive prior to that". Dr. Busby-Earle defined "expulsive" as the stage when the baby's head is descending in the vagina, and the mother experiences an overwhelming desire to push, heralding the arrival of the baby. Dr. Busby-Earle requested the midwifery staff to inform her if the dilation of the cervix reached 9 centimetres or more, as she wished to be present at the birth.

At 7.00 p.m., Dr. Busby-Earle checked the cardiotocographs (records of the foetal heart rates) and was happy that each twin was being monitored. At 7.15 p.m. the first pursuer was noted to be feeling pressure. At 7.30 p.m., the sister, Sister Rhona McCall, noted:

"No sign of being in 2^nd stage [of labour] - coping well breathing thro' contractions - not actively expulsive. CTGs [cardiotocographs] x 2 continue, difficult to be sure that they are separate at times, other moments definitely picking up two separate FHRs [foetal heart rates]. Requesting analgesia."

Pain relief was given at 7.50 p.m.

At 7.51 p.m., the midwifery sister noted "Vertex visible". The first pursuer's progress between 6.40 p.m. and 7.51 p.m. was later described by Dr. Miller as "a very fast second stage of labour". Dr. Busby-Earle was summoned, but before she could arrive, the first twin was delivered by the sister at 7.52 p.m. The notes record:

"19.52 SVD [spontaneous vertex delivery] live boy."

The delivery was normal, unassisted, and head-first.

The second twin

Dr. Busby-Earle arrived at 7.53 p.m. She washed her hands and examined the first pursuer's abdomen. The foetal heart rate of the second twin was being monitored by means of the abdominal transducer. Dr. Busby-Earle found if difficult to decipher the lie and presentation of the second twin by external palpation, and at 7.58 p.m. she proceeded to carry out a vaginal examination, using her right hand. The cervix was dilated to 8 centimetres. Above the cervix, she felt firstly, a cleft, which initially gave her the impression of buttocks, and therefore of a breech presentation. However she also felt what seemed like fingers, and next to the fingers, what seemed like an upper arm. She took an ultra sound scanner in her left hand and performed a scan of the abdomen. She could see the baby's head on the scan, but could not feel the head with her right hand. The scan showed the head positioned over the cervix where her fingers were, but about 5 or 10 degrees off centre. She formed the view that the presenting part of the baby was near to, but above, the pelvic brim. The presenting part was just above the cervix, near enough for her to feel with a finger, but not protruding from nor engaged or impacted in the cervix.

Dr. Busby-Earle confirmed that there had been no palpable forewaters at the time of her examination, and she had assumed that the membranes had been ruptured - either just before her examination or quite recently, within the time of the delivery of the first twin. She could feel no contractions, no uterine activity.

Putting together her findings from the vaginal examination and the ultra sound scan, Dr. Busby-Earle formed the view that the cleft was an armpit. She ultimately concluded at about 8.00 p.m. that the baby's presentation was not a breech presentation but a shoulder presentation, and that the baby's head was only 5 or 10 degrees away from the longitudinal position. She stated that the situation in which she found herself was unusual: she had not seen it before. A shoulder presentation was quite uncommon. She personally had seen a situation where the baby's arm had prolapsed through the cervix into the vagina: but she had never seen a situation such as this. Dr. Busby-Earle agreed that where a baby's arm actually prolapsed through the cervix into the vagina (a transverse lie), textbooks recommended proceeding to a Caesarian section. However what she had found was different, something which was "described nowhere".

Administration of syntocinon

Bearing in mind that the second twin's head appeared to be only 5 or 10 degrees off-line, Dr. Busby-Earle anticipated that some uterine contractions might dilate the cervix and assist in tipping the baby's head into the correct position in the pelvis. She also hoped that gentle manipulation of the baby's fingers with her own fingers might result in the baby's hand and arm being automatically withdrawn, assisting the head to slip into the right place. Accordingly, on diagnosing the shoulder presentation at 8.00 p.m., she began a syntocinon drip to encourage contractions. She chose a dilute infusion of 3 mls per hour, because the first pursuer had by then given birth to five children, and her uterus might respond more vigorously than the uterus of a primagravida. At 8.03 p.m., the syntocinon infusion was increased to 12 mls per hour, at Dr. Busby-Earle's request.

Decision to proceed to Caesarian section

At 8.06 p.m. the foetal heart was noted to be 120, and the first pursuer to be actively pushing. However by 8.08 p.m., about eight minutes after the syntocinon had started, there had been no uterine activity, no cervical dilation, and no correction of the presentation. Also the sister noted "FH [foetal heart] difficult to pick up". Dr. Busby-Earle explained that difficulty detecting the foetal heart might indicate foetal distress, and certainly meant that the treating staff could not be reassured of the baby's condition. At that stage, Dr. Busby-Earle decided that all the factors, taken with the time-lapse of 16 minutes since the birth of the first twin, meant that a Caesarian section was necessary. She instructed the syntocinon drip to be switched off. She continued to keep her right hand in the vagina to avoid problems with the umbilical cord. Her hand remained there even when the patient was being transferred to theatre, and was only removed when Professor Calder arrived to begin his examination of the first pursuer in the anaesthetic room.

Prior to the patient's transfer to theatre, another midwife was called to assist in dismantling the lithotomy poles, covering the first pursuer, and moving the bed down the corridor. At the same time, instructions were given to mobilise theatre staff. A brief explanation was given to the pursuers.

The notes record:

"20.10 [To] anaesthetic RM [room]. Professor Calder called."

Dr. Busby-Earle explained that she asked Dr. Howe, the registrar on duty, to summon Professor Calder. She did so for two reasons. Firstly, the professor might have decided that a manoeuvre called internal version was feasible. Such a manoeuvre is carried out where the membranes are intact, or recently ruptured. General anaesthetic is administered, and the hand inserted into the uterus and the baby pulled down by a foot or leg to allow for vaginal delivery. Secondly, it was the practice to inform the consultant in charge whenever a patient was being taken to theatre for Caesarian section.

When asked by counsel for the pursuers why she had not called Professor Calder at an earlier stage, say, at 8.00 p.m. or shortly thereafter, once she had performed the vaginal examination and the scan, Dr. Busby-Earle replied that at the time, on the basis of what she could see on the scan, and the monitoring of the foetal heart rate, there seemed to be no risk, no cause for alarm, and matters were well within her competence and capabilities.

When asked further about internal version, Dr. Busby-Earle explained that she had read about the manoeuvre in textbooks. The manoeuvre was generally rarely seen, except in cases involving a second twin. Dr. Busby-Earle had never seen it performed. She had never performed it. Older, more experienced practitioners might have the necessary experience and technique, but not younger generations of gynaecologists and obstetricians such as herself. If Professor Calder thought internal version feasible, vaginal delivery might still be effected, which would be preferable to Caesarian section.

Professor Calder arrived in theatre very promptly. Dr. Busby-Earle removed her hand from the vagina, and Professor Calder carried out a vaginal examination. He then wished to re-examine the first pursuer under general anaesthetic. The first pursuer was anaesthetised. After a further examination Professor Calder agreed that a Caesarian section was necessary. Dr. Busby-Earle performed the operation, assisted by Professor Calder and a senior house officer. The baby Sandy was delivered at 8.31 p.m., approximately twenty-three minutes after Dr. Busby-Earle's decision at about 8.08 p.m. to take the first pursuer to theatre for Caesarian section.

An obstetric operation record was compiled at the end of the operation (page 73 of number 6/3 of process). The operation to be performed is noted as "Lower Segment Caesarian section", the indication being "compound presentation of 2^nd twin (hand and shoulder)".

The operative findings bore out Dr. Busby-Earle's diagnosis that the presenting part was a shoulder and a nearby hand. Under the heading "Operative findings and techniques", was noted:

"Findings:

Shoulder and hand presentation
Thin lower segment. V. little residual liquor
Healthy uterus, tubes and ovaries
Male infant, flat at birth [delivered to paediatricians]
Single placenta. Apparent single sac.

Procedure: VE [vaginal examination] by Prof. Calder. Internal version not feasible - proceeded to LSCS [lower segment Caesarian section]

Catheterised, prepared and draped
P/amnerstial incision [a low transverse incision]
Routine abdo. entry
Transverse incision through lower uterine segment
Male infant easily delivered
Cord clamped and cut. Baby [to paediatricians]
Cord pH taken
Placenta delivered by CCT [continuous cord traction]
Uterus swabbed clear of POC [products of conception]
Uterus repaired in single layer (too thin for 2 layers) and reperitonealised [with] Vicryl
[left] uterine angle repaired [with] fig.8 sutures
Haemostasis secured
Abdomen closed in layers [with] Vicryl
S/C [subcutaneous] prolene on beads - skin. Swabs/instruments [ticked]
Vagina swabbed clear of [products of conception]. Few grazes only.
Clear urine post-op. EBL [estimated blood loss] - 570 mls.
Post-operative antibiotics given."

The baby had been "easily delivered" - in other words, the baby had been easy to lift out. He was not stuck or impacted. He was not discoloured, which would be a sign of having been impacted or trapped to some extent.

Dr. Busby-Earle confirmed that there had been no sign of abruption, i.e. no sign of a separation of the placenta prior to delivery of the baby. The uterus, which was unusually thin as a result of the first pursuer's high parity and the fact that she had been carrying twins, was repaired with one line of stitching.

Expert medical evidence: gynaecologists and obstetricians

Dr. A.F. John Atkins, M.B.B.S., F.R.C.O.G., M.A.E., was led in evidence on behalf of the pursuers. He explained that he was an honorary consultant in foetal and maternal medicine at South Cleveland Hospital, Middlesbrough. He qualified in London in 1960. After practising as a general practitioner for 6 years, he began a career in hospital medicine, specialising in obstetrics and gynaecology. In 1975 he became a consultant in obstetrics and gynaecology. He stopped practising gynaecology in 1986 in order to specialise in foetal and maternal medicine (complicated obstetrics). In 1990, he became a regional college adviser to the Royal College of Obstetricians and Gynaecologists. He retired in July 1996, but continued to be involved in pre-natal diagnosis and ultra sound research. He also continued to teach doctors and midwives.

Dr. Atkins confirmed having examined the medical records number 6/3 of process, and having sat in court to hear the whole of Dr. Busby-Earle's evidence. He acknowledged that he had not had an entirely clear picture of events until he had heard Dr. Busby-Earle's evidence. His original report dated 15 July 1997 number 7/1 of process was based purely on the records. It referred to a "compound presentation" and "compound presentation of arm and shoulder with the head above the brim" (page 32). A later report which formed the basis of his evidence in court was also compiled from the records, and was dated 20 April 2001, number 6/4 of process. That report mentioned inter alia that "a hand and arm were felt in the vagina" (paragraph 5.5) and described the presentation as "a shoulder presentation with a prolapsed arm" (paragraphs 5.5, 6.3).

When giving evidence, Dr. Atkins wholly supported Professor Calder's conclusion on 23 June 1996 that vaginal delivery was in the best interests of mother and babies unless any complication arose. Dr. Atkins also supported Dr. Busby-Earle's conclusion that the second baby was lying in a shoulder presentation. He considered that she had reached that conclusion commendably quickly. He explained that the difficulty with a shoulder presentation was that the shoulder was too big to deliver by the birth canal.

It was Dr. Atkins' view that if Dr. Busby-Earle had been able to feel all that she had described, the baby was lower in the bony pelvis than Dr. Busby-Earle had suggested in evidence. In court, Dr. Atkins demonstrated with his hand, particularly the index finger and thumb, the difficulty which he considered Dr. Busby-Earle would have had in feeling all that she described if the presenting part of the baby had truly been above and back from the cervix. Dr. Atkins did not accept that Dr. Busby-Earle's fingers could have been supporting the presenting part, had that part been situated above and back from the cervix. In any event, the important relationship was that between the presenting part and the bony pelvis, rather than that between the presenting part and the cervix. The leading part of the baby could come into the vagina while still covered by the cervix (like a skull-cap). In Dr. Atkins' view, the baby's shoulder was at all relevant times actually presenting in the pelvic cavity, well into the birth canal.

It had not been suggested to Dr. Busby-Earle during her evidence that if she was able to feel what she described, the presenting part of the baby (the shoulder and hand) must have been positioned lower than she was suggesting, and well into the birth canal.

Dr. Atkins' criticism of Dr. Busby-Earle's treatment focused on the time-lapse of, in his estimate, ten minutes which had been allowed to occur between the diagnosis of a shoulder presentation (at 8.00 p.m.) and the decision to proceed to Caesarian section (a decision which Dr. Atkins considered had been made at 8.10 p.m.).

Under reference to an excerpt, number 6/4 of process, entitled Malpositions of the Occiput and Malpresentations, taken from a standard medical textbook, Dewhurst, Obstetrics and Gynaecology for Post-Graduates, Dr. Atkins reviewed the options open to Dr. Busby-Earle once a shoulder presentation had been identified. (i) Dr. Atkins confirmed that spontaneous reversion (spontaneous correction of the baby's position to an appropriate longitudinal lie) had been known to occur. Spontaneous reversion was more likely to occur where the membranes were intact, or had only recently been ruptured. However Dr. Atkins advised that spontaneous reversion was an unlikely event. The number of cases which managed to correct could be described as a "vanishingly small" minority. The possibility of improvement in the first pursuer's case was remote and unlikely, and improvement in the lie was an improbable outcome. (ii) External version (manipulation from outside) was not an option open to Dr. Busby-Earle as she had been unsure of the baby's position on external palpation. (iii) Internal podalic version and a breech birth was an unusual procedure, and Dr. Busby-Earle was quite right not to attempt it. (iv) In Dr. Atkins' view, the only real option open to Dr. Busby-Earle on diagnosing a shoulder presentation was an immediate Caesarian section.

Dr. Atkins accordingly criticised Dr. Busby-Earle's management involving the administration of syntocinon and the digital stimulation of the baby's fingers in an attempt to assist the baby into the right position for vaginal delivery. In his view, a successful outcome from such a procedure was improbable, "vanishingly unlikely". Even if the arm had been withdrawn, the shoulder would simply have dropped lower. The shoulder was not being held up by the cervix, but by the bony pelvis. The womb would be likely to push the baby downwards, not sideways such that the head came over the entrance to the pelvis. Published management or practice was that if a shoulder lie could not be corrected, then there was no choice but to proceed to Caesarian section. In Dr. Atkins' view, Caesarian section was the only realistic option, and the correct management was, on diagnosis of the shoulder lie, to proceed immediately to Caesarian section.

Reverting to the unrealistic nature of any attempt at spontaneous reversion, Dr. Atkins stated that in the majority of cases, the lie would not correct, particularly if the membranes had ruptured and liquor had drained out. Where a baby was small or dead (which was not the case here) and surrounded by liquor, a good outcome might be achieved, but even in such circumstances, a good outcome was unlikely. The second twin was not a small baby, and the situation which Dr. Busby-Earle faced could only deteriorate. The baby could not move. The uterus would contract on the baby, compressing the cord, interfering with the baby's blood supply and damaging the baby. Also there was a risk of the afterbirth separating. The mother too could suffer damage if her womb ruptured. In the circumstances faced by Dr. Busby-Earle, there was no choice but to proceed to Caesarian section. Anyone involved in obstetrics, whether a senior house officer, registrar, or consultant, should have known that.

Dr. Atkins accepted that a shoulder presentation was not a common situation. He accepted that it was reasonable that Dr. Busby-Earle had not previously experienced such a presentation. However in his view a senior registrar in obstetrics ought to be aware of the various lies which might occur, and the action to be taken in each case. At about 8.00 p.m., when faced with a shoulder presentation, she should have appreciated the risks facing mother and baby. She should have realised that a Caesarian section was necessary, or, if she felt unsure, she should have called for Professor Calder as soon as she had the diagnosis of a shoulder presentation. Any delay could only make matters worse. Dr. Atkins could see no clinical reason justifying delaying the decision to proceed to Caesarian section.

Once the decision to proceed to Caesarian section had been taken (at 8.10 p.m., on Dr. Atkins' reading of the entry in the medical notes number 6/3 of process at page 58 where it is recorded "20.10 [To] anaesthetic room"), Dr. Atkins had no criticism of ensuing events. His criticism accordingly focused on the delay of 10 minutes occurring between the diagnosis of a shoulder presentation and the decision to proceed to Caesarian section. In answer to questions put by the pursuers' senior counsel, Dr. Atkins described this delay as a failure by Dr. Busby-Earle to perform her duty to exercise the care and skill of a senior registrar in obstetrics and gynaecology.

In cross-examination, Dr. Atkins accepted that the precise effect of a delay of 10 minutes was the province of other experts, such as neonatologists. However, as a paediatrician, he could confirm that every minute was important. He reiterated that it was not reasonable for Dr. Busby-Earle to have waited in the hope that the baby's lie would improve when such a wait would probably result in injury to both baby and mother. Dr. Busby-Earle had been waiting in the hope of the incredibly unlikely, when the probable was risking the baby and the mother. Manually supporting the presenting part of a baby in order to avoid cord compression was, in his view, almost the refuge of the destitute. He considered that the manoeuvre attempted by Dr. Busby-Earle had a virtually zero possibility of success, as the baby was neither small nor dead, and the membranes had ruptured. The probability was that matters would get worse, and the womb would rupture, although admittedly the womb had not in fact ruptured in this case. The risk of womb rupture was particularly present in the first pursuer's case, as her uterus had been noted to be abnormally thin: Dr. Busby-Earle had ultimately closed the womb after Caesarian section using only one line of stitches, because the uterus was so thin. In Dr. Atkins' view, the baby was to some extent stuck, or impacted. The baby was in the pelvis and not likely to go any further other than to get distorted and squashed. That, taken with the shoulder presentation and the ruptured membranes, constituted an obstructed labour, even although there were no contractions. The decision to administer syntocinon should not have been taken, even where the dosage was admittedly low.

Dr. Atkins agreed that it would have been reasonable for Dr. Busby-Earle, faced with this unusual shoulder presentation, to call on a senior colleague such as Professor Calder for advice, and to wait for that colleague to arrive before taking any further steps - even if that colleague had to be called to the hospital from home.

Dr. Alistair W. F. Miller, M.B.Ch.B., F.R.C.O.G., F.R.C.S. (Glasg.), consultant obstetrician and gynaecologist (now retired) gave evidence on behalf of the defenders. Dr. Miller stated that he had practised as an obstetrician for 36 years. He had become a consultant obstetrician in 1970, and worked in that capacity until his retirement in 1997, at which time he was working at the Queen Mother's Hospital, Glasgow. He had also been Medical Director of Yorkhill Trust. He had contributed articles to medical journals, and was the author of an undergraduate textbook, Obstetrics Illustrated (further referred to below). Dr. Miller confirmed that he had read the medical notes, and had listened to Dr. Busby-Earle's evidence.

Dr. Miller stated that, in his opinion, Dr. Busby-Earle's decision to administer syntocinon was a reasonable one in the particular circumstances in which she found herself. Dr. Busby-Earle was aware of the first pursuer's previous good obstetric performance. The first pursuer had, minutes before, given birth successfully to a fifth baby by spontaneous vaginal delivery. She had demonstrated an efficient uterus. Dr. Busby-Earle was justified in assuming that a very few contractions might solve the problem. Dr. Busby-Earle's estimate about the baby's presenting part being some distance back from the cervix was important. Her evidence indicated that the presenting part was not applied to the cervix, and the baby's shoulder was not being pushed down into the pelvic brim. The very fact that the cervix could be felt as a rim around the upper vagina and could be measured at 8 centimetres suggested that the presenting part was not applied to the cervix because the application of the presenting part together with a uterine contraction tended to make the cervix in effect "disappear" and become unable to be felt on vaginal examination. Dr. Busby-Earle's hope had been that, by improving the muscle tone, and making the uterus contract, the oblique lie of the baby would straighten out, the head would be nudged into the correct position, and the shoulder presentation would be changed into a deliverable presentation.

Dr. Miller did not agree with Dr. Atkins' view that there had been no realistic possibility that the shoulder could be got out of the way in this manner. Dr. Busby-Earle was entitled to assume that the membranes had ruptured after the delivery of the first twin, a few minutes prior to Dr. Busby-Earle's examination. Accordingly she was entitled to assume that there was appropriate mobility as a result of liquor, and that some contractions could have an effect on the baby's position. The syntocinon would stimulate the uterus, and encourage contractions.

In relation to the second twin's position, Dr. Miller did not accept the suggestion that if Dr. Busby-Earle could feel a cleft and the other parts described by her, the presenting part of the baby was lower than she had made out in her evidence, and was too much involved with the bony pelvis to admit of a spontaneous correction of the lie. He pointed out that the laxity of the tissues in someone such as the first pursuer, who had just given birth to the first twin, taken with the lithotomy position in which the first pursuer was lying, would enable fingers to conduct the necessary examination and feel what Dr. Busby-Earle had felt where the presenting part of the baby was not engaged in the cervix or the bony pelvis.

In relation to Dr. Busby-Earle's evidence that she had felt no contractions, Dr. Miller confirmed that the uterus commonly relapses into a quiescent phase following upon the birth of a first twin. Dr. Miller did not agree that the labour described had reached the stage of being "obstructed", particularly bearing in mind inter alia the first pursuer's parity, the fact that the cervix was not fully dilated (8 centimetres), the fact that the presenting part was not applied to the cervix, and the lack of contractions.

Dr. Miller accepted that the baby's position could be regarded as the sort of "complication" mentioned by Professor Calder in his entry at 4.15 p.m. on 23 June 1996 ("vaginal delivery is in the best interests of mother and babies unless any complication arises.") However, Dr. Miller did not regard it as an absolute indication for Caesarian section. It was possible that there was some liquor in the uterus, permitting alteration of the lie. Dr. Miller personally would have attempted internal version under anaesthetic, but he did not criticise Dr. Busby-Earle for not attempting such a procedure. Dr. Miller commented that in recent times, internal version and breech extraction were uncommon. A generation of doctors had grown up knowing nothing of vaginal breech delivery. Caesarian section for a second twin was therefore currently not uncommon.

Dr. Miller agreed that some risks attached to the administration of syntocinon. For example, the uterus might begin contracting more strongly than one had wished, and might push the baby into the pelvic brim. Also placental separation could begin: this was a risk to which every second twin was exposed. Again, the cord might prolapse: in Dr. Miller's view, Dr. Busby-Earle had been right to keep her hand in position, supporting the presenting part, in case there was a problem with the cord. Nevertheless, the course of action which Dr. Busby-Earle had chosen was reasonable in the circumstances, particularly when she began cautiously with a dilute dosage of syntocinon. She had been seeking to bring about the quickest and safest form of delivery.

Dr. Miller agreed with Dr. Atkins to the extent that, if a lie remained oblique, with a shoulder presentation, the baby was undeliverable per vagina. Only a small baby, or a dead baby, could be delivered vaginally in such circumstances. The issue in the present case however was whether the lie of the baby could be changed into a deliverable presentation. Dewhurst, op. cit., at p.362, acknowledged that spontaneous reversion had been known to occur. The situation in which Dr. Busby-Earle found herself was relatively uncommon. The fact that the baby's head was only 5 or 10 degrees off the centre line encouraged her to do what she did, and in Dr. Miller's view, there was a reasonable chance that the lie could correct as a result. The findings on Caesarian section, particularly the finding that the baby was "easily delivered", were significant. The baby's head had been readily accessible; the uterus had not been tightly stretched over the baby.

Dr. Miller commented that, once the decision to proceed to Caesarian section had been taken, the time-lapse between decision to operate and the actual delivery of the baby at 8.31 p.m. had been "on the fast side of average".

Summarising his views, Dr. Miller said: "I think it was a difficult and rather unusual situation. [Dr. Busby-Earle] demonstrated that she was aware of the risks of that situation, and by her actions she mitigated them as far as she could. It was a reasonable attempt to achieve an easy vaginal delivery, and she did not persist with it unwisely. I would be totally supportive of her clinical actions."

Following upon evidence-in-chief, and prior to cross-examination of Dr. Miller, senior counsel for the pursuers sought to lodge certain late productions, namely excerpts from the following medical publications: Obstetrics Illustrated (5^th ed.) by A.W.F. Miller and K.P. Hanretty; Handbook of Gynecology [sic] and Obstetrics, by Jeanette Brown and William Crombleholme; Essential Obstetrics and Gynaecology by E. Malcolm Symonds; and Essentials of Obstetrics and Gynaecology (2^nd ed.) edited by Neville F. Hacker and J. George Moore.

Understandably, bearing in mind the late stage of the proof, and the fact that Dr. Miller had just given evidence-in-chief, counsel for the defenders opposed the pursuers' motion. Having heard counsel, and having considered the circumstances in this particular case, I allowed the productions to be lodged as numbers 6/6, 6/7, 6/8 and 6/9 of process respectively.

In cross-examination, Dr. Miller confirmed that Dr. Busby-Earle's approach did not conform to standard management in a singleton pregnancy, and was not a method described in any of the textbooks. But in the very particular circumstances in which Dr. Busby-Earle found herself, her actions were entirely reasonable. Dr. Miller estimated the chance of the baby moving into the correct position at 50:50, or less. Much depended on the amount of liquor in the uterus. Dr. Miller accepted that, as the membranes had ruptured, liquor could drain out: but as the first baby had only just been born, there was a strong presumption that there was liquor in the uterus. Had it not been for the difficulty picking up the foetal heart beat at 8.08 p.m., it would have been reasonable for Dr. Busby-Earle to continue with the syntocinon infusion for another 10 minutes or so. Bearing in mind that there were no contractions, Dr. Miller did not accept that the first pursuer was properly "in labour" when the syntocinon drip was set up.

Dr. Miller added that textbooks did not deal with the particular circumstances in which Dr. Busby-Earle found herself. Textbooks, no matter of what quality, could not deal with every possible clinical situation. A treating doctor had to exercise clinical judgement. It was preferable to opt for spontaneous vaginal delivery, if that could be achieved. Obviously, if a problem arose affecting the baby, that had to be dealt with. Dr. Miller categorically refuted any suggestion that Dr. Busby-Earle had acted in a way in which no reasonably competent practitioner exercising due care and skill would have acted.

Expert medical evidence: neonatologists

Dr. Sunil Sinha, M.B.B.S., F.R.C.P., F.R.C.P.C.H., M.D., Ph.D., consultant paediatrician specialising in neonatal care at South Tees Acute NHS Hospital Trust, Middlesbrough, gave evidence on behalf of the pursuers. Dr. Sinha had for several years led a special care neonatal service at Middlesbrough, looking after large numbers of sick newborns. He had a particular interest in neonates' brains and lungs. He had published articles and contributed to textbooks on subjects including the mechanisms contributing to brain damage in newborns. He also gave lectures.

Dr. Sinha stated that he had read the medical records number 6/3 of process, and a histology report entitled "autopsy report" (which was traced and lodged in the course of Dr. Sinha's cross-examination as number 6/5 of process). Dr. Sinha had listened to the cross-examination and re-examination of Dr. Busby-Earle. His impression was that the second twin had run into difficulties after the delivery of the first baby. Some problem had caused composite foetal distress during the period before delivery. The baby had suffered intermittent partial asphyxia culminating in an acute asphyxial insult occurring some time after 8.24 p.m., resulting in the baby's heart stopping beating. Dr. Sinha could not pinpoint the precise cause of the asphyxia. The baby had in effect been born dead - "still-born". He had been resuscitated by neonatologists, but had suffered multi-system failure leading to his death two days later. Had the baby been delivered at 8.24 p.m. or earlier, there would have been a very good chance of survival. Dr. Sinha estimated the probability of escaping serious handicap in such circumstances as more than 50 per cent.

Professor Neil McIntosh, M.B.B.S., F.R.C.P., F.R.C.P.C.H., Ph.D., M.D., professor of child life and health at Edinburgh University with a special interest in neonatology, was led in evidence on behalf of the defenders. Professor McIntosh stated that he had practised in paediatrics for over 21 years. He had held the post of professor for 12 years. His most recent area of study was cell neonatology.

Professor McIntosh confirmed that he had read the medical notes number 6/3 of process, and the report on the microscopic examinations conducted on Sandy's brain number 6/5 of process. In his view, the histological findings disclosed more than 25 minutes of hypoxia, although some oxygen had been getting through to the baby. The histological findings, taken with the oscillating pattern of foetal heart rates from 7.52 p.m. to 8.24 p.m., suggested prolonged partial asphyxia. The final foetal heart rate, noted at 8.24 p.m., was 140. Professor McIntosh stated that in his opinion, if the baby had been delivered at 8.24 p.m. rather than 8.31 p.m. (i.e. 7 minutes earlier) the baby would probably have survived. An acceleration of the delivery time by 7 minutes or more would therefore have made the difference between whether the baby lived (i.e. some sort of existence independent of a life-support machine) or whether the baby died. However, if the baby had survived, he would probably have been substantially damaged.

In cross-examination, Professor McIntosh agreed that the baby was of normal gestation and normal size. There had been no apparent cause for concern until 8.08 p.m. While, in his view, there had been prolonged partial asphyxia, Professor McIntosh accepted that the fatal arrest had occurred after 8.24 p.m.

Pursuers' submissions

Professional negligence

Senior counsel for the pursuers submitted that the test for professional negligence was as set out in Hunter v Hanley, 1955 SC 200. In the present case, having correctly identified a shoulder presentation, the question was whether Dr. Busby-Earle failed in her professional duty by not putting in train preparations for a Caesarian section. The pursuers' contention was that if Dr. Busby-Earle had acted at 8.00 p.m. the way she had acted at 8.10 p.m., the birth would have been accelerated by 10 minutes, and the baby would not have died.

Counsel accepted that there was some debate as to whether the delay was 8 or 10 minutes. Counsel contended for 10 minutes: for example, 7.59 p.m. to 8.09 p.m. Others might argue for 8 minutes: for example, 8.00 p.m. until 8.08 p.m. However counsel pointed out that, on the facts as they had emerged in the proof, little appeared to turn on whether the delay lasted 8, 9, or 10 minutes. On the basis of the evidence given by the neonatologists, provided the baby had been delivered 7 or more minutes earlier, he would not, on a balance of probabilities, have died.

Counsel had two main submissions:

In a medical negligence case, where a doctor sought to establish that his or her conduct had been that of a reasonable physician exercising reasonable care and skill, the doctor had to be able to demonstrate support for the actions taken by reference to a body of professional opinion.
The doctor must be able to show that the supporting expert evidence was reasonable: Bolitho v City and Hackney Health Authority [1998] AC 232; Marriott v West Midlands Health Authority and others [1999] Lloyds Medical Law Rep. 23.

In relation to his first proposition, counsel submitted that it was not sufficient for the defenders to produce one unsupported witness. No "body of opinion" had been demonstrated.

In relation to his second proposition, counsel submitted that, esto a body of opinion had been proved, that body of opinion was not reasonable.

Counsel invited the court to prefer the expert evidence of Dr. Atkins to that of Dr. Miller. Dr. Busby-Earle should have realised that a Caesarian section was the only option open to her. Delay could only make matters worse. There was the risk of cord compression. There was the risk that, once the afterbirth separated, there might be a reduction in the oxygen transmitted to the baby. The published management or practice indicated that there was no option but a Caesarian section. Even if the baby was small (and this baby was not) and the liquor sufficient, correction of the lie was extremely unlikely. Vaginal delivery was an option only if the baby was very small, or dead. In the present case, the membranes had ruptured, and it was highly improbable that the baby would move into the correct position. All the textbooks, including Dr. Miller's own textbook, pointed to a Caesarian section. There was no technical term or textbook description for the manoeuvre attempted by Dr. Busby-Earle, which was in effect a sort of "assisted spontaneous reversion". Dr. Atkins' evidence was that the manoeuvre would not work. Even Dr. Miller considered the chances of success to be 50 per cent, or less.

Causation

Senior counsel for the pursuers accepted that there was no evidence suggesting that the administration of syntocinon per se caused the oxygen starvation. He accepted that no-one really knew what had caused the baby's asphyxia. However he submitted that the evidence established that if the baby had been born at about 8.24 p.m., he would have survived. The seven minute delay between 8.24 p.m. and the actual time of delivery at 8.31 p.m. was therefore significant and had caused or materially contributed to his death. The pursuers' claim was founded upon section 1(4) of the Damages (Scotland) Act 1976. It was a claim in respect of the death of the baby. Accordingly the only issue for the court was whether the baby's death had been caused or contributed to by professional negligence. The court did not require to consider the condition in which the baby might have been born had he been born earlier (by 8.24 p.m. at the latest) and therefore survived, but having suffered damage as a result of prolonged partial asphyxia. The only issue before the court was whether the professional negligence had caused or contributed to the death. If the court held that there had been professional negligence, and that the negligence caused a delay of at least 8 minutes in the delivery of the baby, that was sufficient to establish causation.

Defenders' submissions

Professional negligence

Senior counsel for the defenders referred to Hunter v Hanley, 1955 SC 200, in particular to the dicta of Lord President Clyde at p.204. Hunter v Hanley had been approved in Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, particularly at pp.638F-G, 639F. Counsel argued that the pursuers' submissions sought to reverse the onus of proof and to place the onus on the defenders. That was not the correct approach. It was for the pursuers to establish that no doctor of ordinary competence exercising reasonable care and skill would have done or omitted to do what Dr. Busby-Earle did or omitted to do. As had been pointed out in Hunter v Hanley, cit. sup., at p.206, errors of judgement might or might not constitute professional negligence. The question was whether the course of action adopted by Dr. Busby-Earle was one which no doctor of ordinary competence acting with reasonable care and skill would have taken. Bolitho did not alter that onus. It was only in rare cases that the court would not be influenced by the evidence of medical witnesses. Dr. Miller had applied his experience and expertise to the comparative risks and benefits of the alternatives open to Dr. Busby-Earle, and had provided an objective assessment of the events which took place.

In Gordon v Wilson, 1992 S.L.T. 849, Lord Penrose quoted with approval the observations of Lord Scarman in Maynard v West Midlands Regional Health Authority, in particular:

"... a judge's "preference" for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence on 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 ..."

In the present case, it remained for the pursuers to demonstrate that no medical practitioner purporting to exercise the skill involved would have acted in the way Dr. Busby-Earle had. Even if a pursuer succeeded in establishing a practice, and a deviation from practice, that pursuer could not succeed unless it was demonstrated that no ordinarily competent doctor exercising reasonable care and skill would have done what was done or omitted to do what was omitted.

Turning to the evidence, senior counsel for the defenders invited the court to view Dr. Busby-Earle's evidence as central for matters of fact. Her credibility and reliability had not been challenged. She had described the presenting part as being above or back from the cervix. Her description had not been challenged during her evidence. Her description was supported by other evidence, for example, the cervix being measurable at 8 centimetres (rather than being effaced by engagement with the presenting part), and the ease with which the baby was ultimately delivered on Caesarian section. Counsel invited the court to reject Dr. Atkins' evidence that Dr. Busby-Earle could not have felt the cleft and other body parts if the baby had been above the cervix, for several reasons: (a) such a suggestion had never been put to Dr. Busby-Earle during her evidence, despite the fact that Dr. Atkins was sitting in court; (b) the gynaecologist's hand position described by Dr. Atkins (resulting in the thumb apparently impeding deeper investigation) was not necessarily adopted by all practitioners; (c) a line of cross-examination of Dr. Miller relating to the sacral promontory (apparently directed to demonstrating how low the baby must have been in order to be felt by Dr. Busby-Earle) had apparently been abandoned by counsel for the pursuers; (d) the first pursuer had given birth on many previous occasions, and had just given birth again; the birth canal was lax; the first pursuer was in the lithotomy position: the circumstances were ideal for a practitioner such as Dr. Busby-Earle to feel the presenting part of the baby, even although it was not applied to the cervix. In all the circumstances, counsel invited the court to reject Dr. Atkins' suggestion that the baby was in some way lower down than Dr. Busby-Earle had described. Dr. Atkins' whole evidence had been affected by his misconception or misunderstanding about how low down the baby was. He was wrong to refer to "obstructed labour" in the absence of uterine activity. Generally, the evidence of Dr. Miller should be preferred. Had a successful vaginal delivery been achieved earlier than 8.31 p.m. after one or two contractions, that would have been a very desirable outcome. When by 8.08p.m. the hoped-for result had not been achieved, and the foetal heart rate was difficult to pick up, the balance of risks changed, and a different course of action was properly and speedily adopted.

Causation
[75] For the purposes of this chapter of his submissions, senior counsel for the defenders assumed that the entire delay was attributable to negligence on the part of Dr. Busby-Earle. Counsel submitted that it was for the pursuers to aver and prove that, but for the doctor's negligence, the baby would not have suffered in the way he did. He submitted that, at best for the pursuers, the delay began at 8.00 p.m., on the basis of a very speedy assimilation of the findings from the ultra sound scan and the vaginal examination. On Dr. Busby-Earle's evidence, the decision to stop the syntocinon and to proceed to theatre was taken at 8.08 p.m., when foetal distress was noted. At 8.08 p.m., the first pursuer's legs had to be taken out of the stirrups; she had to be placed on a trolley and moved to theatre. The element of foetal distress was important: the steps being taken to get the first pursuer to theatre were taken against that background. Had the decision to proceed to theatre been taken earlier, say at 8.00 p.m., it would have been taken in a non-emergency situation, when there was no cause for alarm. Matters might well have proceeded at a slower pace. The pursuers were in effect asking the court to speculate that a decision to proceed to Caesarian section, taken earlier in a situation of non-emergency, would necessarily have been followed by precisely the same pattern and timing of events as did in fact occur once the decision to proceed to Caesarian section was taken at 8.08 p.m. But such an assumption or speculation could not be made. For example, Professor Calder would not necessarily have arrived in the same number of minutes. There was no proper basis upon which the court could, on a balance of probabilities, hold that the sequence of events and the timing following a decision to proceed to theatre taken earlier in a situation of non-emergency, with no foetal distress, would have been the same or similar to the sequence of events and the timing following the actual decision to proceed to theatre taken once the foetal heart rate gave cause for concern at 8.08 p.m.

Counsel further submitted that Dr. Atkins would not have criticised Dr. Busby-Earle had she called for Professor Calder at about 8.00 p.m., and then waited several minutes for him to arrive.

In conclusion, senior counsel for the defenders submitted that the pursuers had failed to establish negligence. In any event, they had failed to prove that any negligence caused or contributed to the death of the baby.

Whether the presenting part was engaged in the cervix or impacted in the bony pelvis

One important area of contention was the precise position of the second twin relative to the cervix and the bony pelvis. In my view, Dr. Busby-Earle was particularly well-qualified and well-positioned to describe and define the position of the baby. She carried out a vaginal examination. She used an ultra sound scanner. She conducted the Caesarian section operation, and not only saw the position of the baby in the course of the operation, but also physically lifted him out in a manoeuvre which was noted at page 73 of the medical records number 6/3 of process as "easily delivered". She gave evidence that the baby was above and some distance back from the cervix, and was neither engaged in the cervix, nor impacted in the pelvis. Her credibility and reliability were not challenged in the course of the proof. I accept her evidence. I find it established, on a balance of probabilities, that at the time of Dr. Busby-Earle's diagnosis of a shoulder presentation, and her decision to administer syntocinon, the presenting part of the baby was near to but above the pelvic brim, and the presenting part was not applied to nor engaged in the cervix, nor impacted in the bony pelvis.

Timing of the decision to proceed to Caesarian section

On this matter, I accept Dr. Busby-Earle's evidence. I find it established that at 8.08 p.m., when the syntocinon appeared to be having no effect, and the foetal heart became difficult to detect, Dr. Busby-Earle made the decision to proceed to Caesarian section. Subsequent physical and administrative steps (such as organising the first pursuer for transport, alerting theatre staff, advising both pursuers briefly of developments, and calling for Professor Calder) then took place, and by 8.10 p.m. the first pursuer was being physically transported to the anaesthetic room. Accordingly I find it proved that Dr. Busby-Earle took the decision to proceed to Caesarian section at 8.08 p.m.

Whether there was professional negligence

As Lord Scarman observed in Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634 at p.638G, the test which a pursuer requires to satisfy in a complaint of medical negligence has been best formulated by Lord President Clyde in Hunter v Hanley 1955 SC 200, at pp.204-5, and p.206 as follows:

"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances - Caswell v Powell Duffryn Associated Collieries, per Lord Wright at pp.175-176. But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care - Glegg, Reparation (3^rd ed.) p.509 ... It follows from what I have said that in regard to allegations of deviation from ordinary professional practice - and this is the matter with which the present note is concerned - such a deviation is not necessarily evidence of negligence. Indeed it would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated ..."

In the present case, the usual and normal practice for which the pursuers contend is that the circumstances faced by Dr. Busby-Earle at 8.00 p.m. on 23 June 1996 fell to be treated as an indication for immediate Caesarian section, with all appropriate steps being taken there and then, without delay. The immediacy of the response is fundamental to the pursuers' contention, as it is the delay of some 8 minutes in the decision to proceed to Caesarian section which is criticised.

Having considered the evidence, I am not satisfied that such a practice has been established. Both Dr. Atkins and Dr. Miller mentioned internal version as a possible alternative which an obstetrician faced with the rather unusual presentation of the second twin would be entitled to consider and explore. Dr. Atkins agreed that a senior registrar such as Dr. Busby-Earle, recognising that she had neither the training nor the experience to attempt internal version, would be entitled to call in a more experienced senior colleague. That colleague, having arrived in theatre and having been advised of the situation, might examine the baby's lie, and then might perform an internal version under general anaesthetic, thus achieving the hoped-for vaginal delivery. Alternatively the colleague might, after examination, form the view that internal version was not feasible, and recommend that a Caesarian section be carried out. Against that background I am unable to accept that there was a usual and normal practice that an obstetrician should treat the circumstances prevailing at 8.00 p.m. as an indication for immediate Caesarian section. It follows that the first prerequisite of professional negligence as set out in Hunter v Hanley has not been satisfied, and the defenders fall to be assoilzied.

Even if, contrary to my view, it were to be assumed that there had been a usual and normal practice from which Dr. Busby-Earle departed, I was not satisfied that the evidence established that the course which she adopted was one which no ordinarily competent obstetrician and gynaecologist acting with reasonable care and skill would, in the particular circumstances, have adopted.

Dr. Busby-Earle knew that the first pursuer had on previous occasions achieved spontaneous vaginal delivery of 4 healthy babies. She also knew that the first pursuer had, only minutes before, quickly and efficiently delivered the first twin, Raymond. She knew that there had been no sign that the second twin was in distress or that his oxygen supply had been compromised to any extent.

Having conducted a vaginal examination and ultra sound scan, and having diagnosed - commendably quickly - an oblique shoulder lie, Dr. Busby-Earle recognised that internal version was not open to her, as she was one of a generation of doctors who had neither been trained in, nor had experience of, such a manoeuvre. She also appreciated that it was not open to her simply to wait and let nature take its course.

A doctor such as Dr. Busby-Earle has to make clinical judgements after weighing up perceived risks and benefits on the information available. At the time when Dr. Busby-Earle made her risk-benefit analysis, there was no uterine activity. The baby was situated near the pelvic brim but was not engaged in the cervix, nor impacted in the bony pelvis. There were no indications of foetal distress or foetal asphyxia. The perceived benefits of administering syntocinon were the chance that the lie of the second twin might improve, followed by fairly speedy vaginal delivery, thus avoiding the time required for transfer to theatre and preparation prior to operation, and the risks (albeit fairly low) arising from major abdominal surgery under general anaesthesia. The perceived risks of the course adopted by Dr. Busby-Earle included the possibility of an over-violent response from the uterus of a parous woman, and the possibility that, if the lie did not improve yet the syntocinon was persisted in, a stage might be reached where the baby would become impacted in the bony pelvis and be subjected to strong contractions, with compression of the cord, interference with the baby's blood supply, and damage to the baby (and the mother possibly suffering a ruptured uterus in the process).

Having taken a decision to administer syntocinon, Dr. Busby-Earle's approach was cautious. She remained with the first pursuer, carefully monitoring her condition and signs. She did not persist with the syntocinon when the hoped-for effects were not achieved. At the first sign of what could be foetal distress at 8.08 p.m., she made a prompt decision to proceed to Caesarian section. The situation she then faced was quite different from that which she had faced at 8.00 p.m., when there had been no suspicion of foetal distress, no alarm raised, and no emergency situation. Thereafter the time-lapse between the decision and the delivery by Caesarian section (23 minutes) was not criticised by Dr. Atkins, and was described by Dr. Miller as being on the fast side of average.

The course of action adopted by Dr. Busby-Earle at 8.00 p.m. was not what could be described as a textbook response. Nevertheless, as Dr. Miller pointed out, textbooks do not cover every situation which may arise in practice. Nor does the fact that one cannot find a manoeuvre described in standard text-books necessarily mean that it amounts to bad practice or negligence: cf. Hunter v Hanley, cit. sup., Lord President Clyde at p.206:

"... a deviation [from ordinary professional practice] is not necessarily evidence of negligence ... it matters nothing how far or how little [a doctor] deviates from ordinary practice. For the extent of the deviation is not the test. The deviation must be of a kind which satisfies the [requirement that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care]."

While accepting that the court is the ultimate arbiter in a case such as this, guidance from medical witnesses is nevertheless fundamental in order to assess whether a deviation from practice could be categorised as one which no ordinarily competent obstetric senior registrar would have adopted in the circumstances. Much therefore depends on the evidence of Dr. Atkins and Dr. Miller.

Having carefully considered their evidence, I ultimately found Dr. Atkins' opinion to be less persuasive than Dr. Miller's, for two reasons. Firstly, Dr. Atkins appeared to have based his views upon his perception of how low in the pelvic cavity the baby must have been. His perception on this matter differed from that of the main eye-witness, Dr. Busby-Earle (whose description of the baby's position was not challenged in evidence). As I accepted Dr. Busby-Earle's evidence, it follows that I find Dr. Atkins' opinion less relevant and less persuasive than it might otherwise have been. Secondly, Dr. Atkins was understandably not aware of the full circumstances of Sandy's delivery until he heard Dr. Busby-Earle's evidence in court. Dr. Atkins' reports dated 15 July 1997 number 7/1 of process and 20 April 2001 number 6/4 of process were based purely on the medical records. These reports suggest that Dr. Busby-Earle had diagnosed a compound presentation, and criticise her alleged failure to recognise a shoulder presentation. However Dr. Busby-Earle in evidence described findings and a diagnosis amounting to a shoulder presentation. Further Dr. Atkins' report of 20 April goes on to refer to "a shoulder presentation with a prolapsed arm". While Dr. Atkins disavowed any intention of giving a picture of an arm protruding from the cervix into the vagina (which all the medical witnesses agreed would require a Caesarian section), the wording of Dr. Atkins' reports give rise to at least a suspicion that Dr. Atkins might have formed a certain view on the basis of a necessarily incomplete and possibly inaccurate factual picture, and that his earlier view might have coloured any subsequent assessment of the case. In the result, therefore, I found Dr. Miller's evidence more persuasive.

In view of Dr. Miller's evidence, and bearing in mind my reservations in relation to Dr. Atkins' evidence, I am not persuaded that the course of action adopted by Dr. Busby-Earle was one which no ordinarily competent senior registrar in obstetrics acting with reasonable care and skill would have adopted. For this reason also, the defenders are entitled to absolvitor.

Finally, it may be worth noting that neither Dr. Atkins nor Dr. Miller, as I understood their evidence, actually stated that the course of action taken by Dr. Busby-Earle between 8.00 p.m. and 8.08 p.m. was one which no ordinarily competent senior registrar in obstetrics acting with reasonable care and skill would have taken. Dr. Miller categorically refuted such a suggestion. Dr. Atkins, for his part, certainly did not approve of Dr. Busby-Earle's approach. In his report dated 15 July 1997, he described her management during these minutes as "incorrect and unacceptable". In his report dated 20 April 2001, he described her management as "unacceptable practice". In answer to questions put by counsel, he confirmed that there had been a failure by Dr. Busby-Earle to perform her duty to exercise the care and skill of a senior registrar in obstetrics and gynaecology. However Dr. Atkins did not go so far as to categorise Dr. Busby-Earle's acts or omissions as ones which no ordinarily competent registrar in obstetrics and gynaecology exercising reasonable care and skill would have carried out or permitted to occur. Even if, therefore, I had found Dr. Atkins' evidence as persuasive as Dr. Miller's (which I did not), I would not be satisfied, on a careful reading of Dr. Atkins' evidence, that the test laid down in Hunter v Hanley had been satisfied.

Causation

The medical witnesses could not explain what had caused the prolonged partial asphyxia suffered by the second twin. The pursuers' averments in Article 7 of Condescendence are as follows:

"Post-mortem examination showed that the cause of Sandy's death was intrapartum asphyxia that is a severe lack of oxygen during labour and delivery. The probable causes of this oxygen starvation were either or both of the following. The entanglement or compression of Sandy's umbilical cord as Raymond moved down the first pursuer's birth canal prior to the first delivery. The reduction of size of the placental bed following upon the birth of Raymond. That is, as Raymond was delivered the first pursuer's uterus reduced in size leading to shrinkage of the area of its wall supporting Sandy's placenta. Both of those mechanisms are likely to reduce a second twin's oxygen supply ..."

However in the course of the proof before answer, no medical witness was able to explain the precise cause of the oxygen starvation.

Three aspects of the oxygen starvation were nevertheless established:

Firstly, although the second twin's foetal distress became manifest to medical staff only at 8.08 p.m. when the foetal heart rate was noted as "difficult to pick up", the process of prolonged partial asphyxia probably commenced at least twenty five minutes before Sandy's birth at 8.31 p.m.

Secondly, whatever mechanism was causing the partial asphyxia, the administration of the dilute infusion of syntocinon did not cause or contribute to that asphyxia. I accept the evidence of Dr. Busby-Earle that the dilute infusion did not in fact bring about contractions of the uterus. I also accept the evidence of both Dr. Atkins and Dr. Millar that in such circumstances the administration of syntocinon to the mother did not cause or contribute to the lack of oxygen being suffered by the baby. The unidentified problem which was causing the asphyxia continued, independently of the introduction of syntocinon.

Thirdly, had Sandy been delivered by 8.24 p.m., or at any time earlier, he would have been able to live some sort of existence independently of a ventilator. Dr. Sinha and Professor McIntosh were agreed on this point, although they did not agree about the extent of brain damage which Sandy would have suffered. Accordingly in the context of a claim in terms of section 1(4) of the Damages (Scotland) Act 1976 as amended, a 7 minute delay in the delivery of Sandy caused, or significantly contributed to, his death.

Against that background, counsel for the pursuers contended that, had Dr. Busby-Earle's decision to proceed to Caesarian section been made immediately upon her diagnosis of a shoulder presentation, then, on a balance of probabilities, the baby would have been delivered at least seven minutes earlier, and would have survived. Counsel for the pursuers made this submission on the basis (a) that Dr. Busby-Earle diagnosed the shoulder presentation at about 7.59 p.m. or 8.00 p.m., and that she decided to proceed to Caesarian section at about 8.10 p.m., and (b) that, on a balance of probabilities, the sequence or at least the timing of events following a more prompt decision to proceed to Caesarian section (taken at, say, 7.59 p.m. or 8.00 p.m.) would have been the same as the sequence or timing of events which in fact followed the actual decision to proceed to Caesarian section (taken, as I have found, at 8.08 p.m.). Thus, it was contended, the delivery of the second twin would have been accelerated by seven or more minutes, and Sandy's death would have been avoided.

In my view, if the decision to proceed to Caesarian section had been made at 8.00 p.m., that was a time at which there was no apparent cause for alarm or concern. There was no reason to suspect or to expect that the baby might be suffering from any form of asphyxia. The evidence established that it is accepted medical practice in the United Kingdom that a not insignificant period of time - often 40 minutes - may lapse between decision to proceed to Caesarian section and ultimate delivery of the baby. Dr. Atkins' view was that he would be disappointed if the time-lapse between decision and delivery were allowed to exceed 25 minutes. Even taking into account Dr. Atkins' preferred time-table, I was not satisfied that a decision taken in a non-emergency situation at 8.00 p.m. would have been followed by the same sequence or timing of events which actually occurred following the decision taken in a situation of emergency at 8.08 p.m. once an alarm had been raised in the form of difficulty detecting the foetal heart. In other words, I was not satisfied that a decision to proceed to Caesarian section taken at 8.00 p.m. would, on a balance of probabilities, have resulted in the delivery of Sandy at 8.24 p.m. or earlier, thus avoiding his death.

In the circumstances therefore I was unable to conclude on a balance of probabilities that, had a decision to proceed to Caesarian section been taken at 8.00 p.m., Sandy's death would have been avoided. For this reason also the defenders are in my view entitled to absolvitor.

Conclusion

I shall repel the pursuers' first plea-in-law, sustain the defenders' first, second and third pleas-in-law, and grant the defenders absolvitor. I reserve all questions of expenses to enable parties to address me on that matter.