Scottish Court of Session Decisions

"(1) The pursuers argued that the registrar was negligent in failing to order an immediate Caesarean section when the baby's lie was ascertained. The registrar chose to wait in the hope that the baby's lie would alter thus making ordinary delivery possible. The pursuers' case was that (i) this was negligent since the course was unlikely to lead to any change in the baby's lie and that (ii) the negligence caused the pursuers' loss since the baby suffered brain damage during the period of delay. Her Ladyship held (paragraph 82) that because there was an alternative non-negligent method of delivery namely podalic version, the pursuers must fail. She held that because the registrar could have called for a more experienced colleague to perform podalic version it had not been shown that her failure to order Caesarean section was negligent. This approach is erroneous. The evidence was that the registrar was not competent to perform podalic version. There was no evidence that she considered calling an experienced colleague. The choice the registrar in reality made was between proceeding with natural delivery or calling for Caesarean section. In that circumstance it is irrelevant that a theoretical non-negligent alternative would, if followed, have led to the same brain damage. Give then that the course of action which on the balance of probabilities she would have followed had she appreciated that natural delivery was not a viable alternative was Caesarean section, the true question is whether she was negligent to wait in the hope that natural delivery could be achieved.

(2) Her Ladyship further held (paragraph 88) that the registrar's decision to delay was not negligent. She so held in spite of the fact that the textbooks provided to the court indicated that in the case of a baby with a shoulder presentation the proper course was to call for Caesarean section. This was also the evidence of Dr Atkin (sic) the pursuers' expert. Her Ladyship acknowledged that the registrar's decision to wait was 'not a textbook response' but failed to identify any feature of the case that invalidated the guidance provided by the textbooks. The defenders' expert, Dr Miller, stated that the course adopted by the registrar stood at best a 50:50 chance of succeeding. He therefore was of the view that the course adopted was not likely to succeed. It was common ground that Caesarean section was a low risk operative procedure. It is respectfully submitted that against this background the decision to delay was professionally negligent. The Lord Ordinary was not entitled to find the opinion of Dr Miller persuasive in relation to the question of negligence.

(3) Her Ladyship preferred the evidence of Dr Miller over Dr Atkin (sic). This was founded on the 'suspicion' that his views had been coloured by a misconception of the facts when he wrote his first report (paragraph 91). There was no legitimate basis for this 'suspicion'. In his evidence Dr Atkin (sic) explained what he meant by the phrase 'a shoulder presentation with a prolapsed arm'. Dr Atkin (sic) in any event sat in court and listened to the registrar's evidence before giving his own evidence. When he gave his evidence he indicated that he had heard nothing which led him to alter his opinion. He stood by his report's conclusions. The phraseology used in his report does not provide a legitimate basis for rejecting his evidence in favour of Dr Miller's. Dr Atkin's (sic) views are those supported by relevant published opinion.

(4) Her Ladyship held that Dr Atkin (sic) did not give evidence that the registrar had breached the standard of care laid down in Hunter v Hanley (paragraph 92). Dr Atkin's (sic) was asked whether the registrar 'in performance of her duty of reasonable care ... the duty to exercise the care and skill of a senior registrar in obstetrics and gynaecology ... ought to have performed a Caesarean section as soon as possible ... at 8.00 o'clock or thereabouts'. Dr Atkin's (sic) answered 'Yes' (see volume 3, pages 246-248). It is submitted that this question coincides with the test in Hunter v Hanley. Separatim the Lord Ordinary took the point about failing to satisfy the Hunter v Hanley test ex proprio motu. It was not within her power to do so. The point was waived by the defenders.

(5) Her Ladyship held (paragraph 98) that even if the registrar had ordered Caesarean section at 8.00 pm the pursuers failed to prove that the delay which caused the relevant brain damage would have been obviated. The pursuers' evidence (sic) proceeds on the basis that the time it took to get the baby to theatre would have been the same as it took when the decision was eventually made at 8.08. The defenders did not suggest that the trip to the theatre would have been more leisurely had it commenced at 8.00. There is no evidence upon which to conclude that the time lag would have been materially different. Dr Miller did not give evidence that there were any reasons which would have meant that the trip would have been slower. No hospital personnel gave evidence that there were any operational reasons to slow down a trip commenced at 8.00. The onus lies on the defenders to lead evidence to establish that the time taken for the trip commenced at 8.08 would have been different had the trip commenced at 8.00. In the absence of such her Ladyship's reasoning is speculative."

"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.) page 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 a 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."

"The true test for establishing negligence in diagnosis or treatment on the part of the 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."

"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 Caesarean 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".

"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."

"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 Caesarean 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 pm as an indication for immediate Caesarean section. It follows that the first pre-requisite of professional negligence as set out in Hunter v Hanley has not been satisfied, and the defenders fall to be assoilzied".

"In my view, if the decision to proceed to Caesarean section had been made at 8.00 pm, 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 a decision to proceed to Caesarean 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 timetable, I was not satisfied that a decision taken in a non-emergency situation at 8.00 pm 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 pm once an alarm had been raised in the form of difficulty (in) detecting the foetal heart. In other words, I was not satisfied that a decision to proceed to Caesarean section taking at 8.00 pm would, on a balance of probabilities, have resulted in the delivery of Sandy at 8.24 pm 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 Caesarean section been taken at 8.00 pm, Sandy's death would have been avoided. For this reason also the defenders are in my view entitled to absolvitor".

"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".