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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 92

A1349/02

OPINION OF LORD HODGE

in the cause

ROBBIE WILLIAM SCOTT

Pursuer;

against

LOTHIAN UNIVERSITY HOSPITALS NHS TRUST

Defenders:

________________

Pursuer: Stacey, Q.C., Joughin; Digby Brown, S.S.C.

Defenders: Bell, Q.C., Crawford; Scottish Health Service CLO

13 June 2006

Introduction

[1] Robbie Scott is fifteen years old. He is a warm-hearted boy with an attractive personality. He lives with and is supported by his mother and father, who have taken great care in his upbringing. Unfortunately, as a result of a mishap during birth, he suffers from cerebral palsy. Robbie Scott is a plucky young man and tries hard to overcome the restrictions which he encounters. He is a credit to his parents.

[2 ] In this action he seeks damages for alleged medical negligence. The parties have agreed the appropriate level of damages to be awarded should there be a finding of negligence. The subject of the proof was therefore whether or not Dr Tara Cooper, who was then a senior registrar, was negligent in her care for the pursuer in the final minutes of his mother's labour in the early hours of 16 June 1990. On that issue I had the benefit of Dr Cooper's views and those of two expert witnesses, Mr Anthony Johnson and Professor Deirdre Murphy.

Mrs Scott's labour

[3 ] Robbie was Mrs Scott's first baby. She exhibited no abnormalities or other risk factors. Her pregnancy was uneventful. She was admitted to the Eastern General Hospital in Edinburgh at 2230 hours on 14 June 1990. She underwent an artificial rupture of her membranes in the labour ward at 1445 hours on 15 June. The first stage of labour progressed slowly and the baby's heart rate as charted on the cardiotocograph ("CTG") did not give cause for concern, although on several occasions the midwives consulted the sister midwife to obtain her opinion on early decelerations of the baby's heart rate. At 1740 hours Staff Midwife Gordon carried out a vaginal examination and noted that the cervix was 6 cm dilated, the baby's head was 2 cm above the mother's ischial spines and that the baby's head was swollen ("caput ++"). An epidural infusion was sited in Mrs Scott at about 1900 hours on 15 June. As the labour was progressing slowly, Dr Cooper decided at about 2035 hours on 15 June to give Mrs Scott syntocinon, which is a synthetic for oxytocin, a hormone which makes the uterus contract and thereby dilates the cervix. The delivery of syntocinon was commenced at 2100 hours and the dosage was periodically increased between then and 2355 hours. At 2207 hours, Dr Souter, the duty anaesthetist, tested the epidural block. When the baby's heart beat decelerated below a baseline of about 120 beats per minute ("bpm") the midwives alerted Sister Pennycook who saw Mrs Scott and informed Dr Cooper. After an early deceleration to 95 bpm with a fair recovery to baseline at 2205 hours, Dr Cooper came to see Mrs Scott, examined the CTG trace and observed her contractions and the baby's decelerations. After late decelerations at 2220 and 2225 hours the baby was recorded as having a baseline heart beat of 120 - 125 bpm with good beat-to-beat variability. Dr Cooper noted at 2230 hours that the CTG trace was then satisfactory.

[4 ] By 2230 hours Mrs Scott's cervix was fully dilated after a first stage of labour which had lasted about eight hours and thirty-five minutes. Shortly before 2230 hours Dr Cooper carried out a vaginal examination which revealed that the mother's cervix was fully dilated, the baby was in the right occipito-posterior position ("ROP") (which meant that the back of the baby's head, the occiput, was facing backwards towards the mother's spine and towards the mother's right) just at the ischial spines and that the baby's head had caput (or swelling) which was recorded as "caput +". Dr Cooper instructed the midwives to wait so as to allow the baby's head to descend.

[5 ] At 2357 hours the nursing notes recorded variable decelerations from a baseline of 130 bpm to between 80 and 100 bpm with a slow recovery and Sister Pennycook was informed. A vaginal examination by a staff midwife at 0016 hours on 16 June revealed the baby in the ROP position at 1 cm above the ischial spines ("S - 1") and recorded the swelling of the baby's head as "caput ++". The midwives discussed this with Dr Cooper who advised that the mother wait one hour and then push. The midwives, having consulted Sister Pennycook, instructed Mrs Scott to commence organised pushing at 0135 hours. There were early decelerations of the baby's heart beat to 80 bpm but they did not cause great concern. The vertex of the baby's head (which is the crown or top of the head) was advancing slowly. By about 0155 hours the midwives were becoming concerned about the decelerations and thereafter called Dr Cooper. At 0203 hours the baby suffered a prolonged bradycardia (which is a fall in heart rate below baseline) with a deceleration to below 80 bpm which lasted about three minutes. It was recorded in the nursing notes that the deceleration was to between 65 and 70 bpm. Dr Cooper arrived in the labour room at some time between 0201 hours and 0204 hours. On Dr Cooper's instructions the midwives turned Mrs Scott on to her left side and administered oxygen to her. Dr Cooper observed the foetal heart rate recover to the 120 bpm baseline and the staff midwife recorded that there was good reactivity. Because the CTG trace had demonstrated significant decelerations in foetal heart rate, Dr Cooper decided that it was not appropriate to wait longer but that the baby should be delivered. There was no perception of great urgency at that stage but Dr Cooper explained that she would not have wanted the decelerations which had occurred at about 0200 hours to persist over thirty minutes.

[6 ] Dr Cooper examined Mrs Scott in the labour room before 0210 hours. She carried out a vaginal examination and in the note of that examination recorded that the baby's vertex was at "S+1", which meant that it was about one centimetre below the ischial spines. The baby was in the ROP position; swelling on the baby's head was recorded as "caput +". The baby's head would have been de-flexed to some degree but not significantly as otherwise Dr Cooper would have commented on that in the medical notes because, as she explained, deflexion can make it more difficult to rotate the baby's head. Dr Cooper also recorded that the baby's heart rate had shown variable decelerations but had had good recovery and showed good variability. Although it was not recorded in the medical notes, Dr Cooper gave evidence, which I accept, that before the vaginal examination she carried out an abdominal examination of Mrs Scott to ascertain the position of the baby's head. Dr Cooper said in evidence that on abdominal examination she found that the baby's head was not palpable and that it was engaged in the mother's pelvis. She explained that it was her invariable practice to carry out an abdominal examination before considering an operative vaginal delivery, and that if she found nothing which militated against such a delivery she would not note her findings on such an examination. Again I accept her evidence. Dr Cooper also gave evidence, which I accept, that if on vaginal examination she had discovered that the baby's head had significant moulding she would have recorded that finding. She did not record such a finding. Dr Cooper was aware that the baby had suffered bradycardia but by the time of her examination its heart rate had made a good recovery and the baby's heart beat showed good variability. Professor Murphy agreed with this analysis. As Mrs Scott had been in the second stage of labour for about three and a half hours, Dr Cooper decided that it was appropriate to deliver the baby. To achieve delivery it was necessary to rotate the baby's head from the occipito-posterior ("OP") position to the occipito-anterior ("OA") position which meant that the back of the baby's head would face its mother's front. She decided to deliver the baby in the labour room using Kiellands forceps.

[7 ] Dr Cooper explained to Mrs Scott what the delivery would involve. Mrs Scott was washed, draped and positioned for the forceps delivery. She had already had a catheter fitted at 2030 hours on 15 June. Dr Cooper applied the Kiellands blades and corrected an asynclitism (which is a tilt of the baby's head towards one of his shoulders). She then attempted to rotate the baby's head but was able to move it only about 45 degrees to the right occipito-transverse position ("ROT"). When she attempted the rotation for a second time the foetal scalp electrode, which supplied information to the CTG, had to be removed from the baby's head. This occurred at some time between 0218 hours and 0222 hours. A midwife listened for the baby's heart beat through the mother's abdomen. Initially the foetal heart rate was 109 bpm. Dr Cooper's second attempt to rotate the baby's head was not successful. At that point, the midwife alerted her to a serious bradycardia. The foetal heart rate was assessed to be 58 bpm and the foetal scalp electrode was promptly reconnected. The CTG revealed that the baby's heart rate had collapsed to between 50 and 60 bpm, creating an emergency. At some time between 0222 hours and 0225 hours Dr Cooper made the split-second decision to abandon the attempt to deliver the baby by forceps and instructed that Mrs Scott be taken immediately to the operating theatre for a Caesarean section. She instructed the midwives to summon an anaesthetist and a paediatrician. In her operation note she recorded that there was foetal distress.

[8 ] Mrs Scott was transferred to the operating theatre within ten minutes. She still had the epidural in place but there was not sufficient time to top up the epidural anaesthesia before Dr Cooper performed the Caesarean section. As a result an anaesthetist gave Mrs Scott a general anaesthetic. Dr Cooper had some difficulty in disimpacting the baby's head from his mother's pelvis and Robbie Scott was delivered by Caesarean section at 0244 hours on 16 June. He was in poor condition at birth. At one minute after birth his Apgar score was one, rising to five at five minutes, six at ten minutes and seven at fifteen minutes. As a result of profound birth asphyxia he has cerebral palsy.

[9 ] The precise cause of the birth asphyxia is unknown. In her notes of her discussion with Robbie's parents on 22 June 1990 Dr Cooper recorded that the umbilical cord was very short and was wrapped tightly around the baby at delivery. The midwives' notes made shortly after the birth recorded the cord length as 40 cm, which is the lower limit of what is considered the normal range of cord lengths. Dr Cooper suggested to Robbie's parents at the time and to Mrs Scott's general medical practitioner in a letter dated 16 July 1990 that the likely cause of the sudden drop in foetal heart rate was a tightening of the short cord on partial rotation in the attempted forceps delivery.

Causation of the cerebral palsy
[10 ] There was no dispute between the parties that the likely cause of Robbie Scott's cerebral palsy was his deprivation of oxygen which was manifested by his profound bradycardia in the twenty minutes immediately before he was delivered by Caesarean section. Professor Murphy expressed the view that dystonia (which is abnormal movements such as arching of the back and a tendency to use the extensor muscles) in the first year of life was consistent with a hypoxic ischaemic injury to the basal ganglia (the part of the brain that regulates voluntary movement at a subconscious level) and that effective circulatory collapse for an interval of twenty minutes was consistent with an insult of this type. She referred to the International Cerebral Palsy Task Force's template for defining a causal relationship between acute intrapartum events and cerebral palsy, (BMJ Vol 319. 1999. p.1054).

[11 ] Dr Mary O'Regan, a consultant in paediatric neurology, explained that the interruption or acute reduction in the mother's blood supply to the foetus after the abandoned attempt at rotation would have deprived the baby's brain of oxygen and thereby damaged that part of the brain which was most active and thus needed most energy at the time. As the deprivation of oxygen was an acute episode, the foetus had not had a sufficient opportunity to redirect its blood supply to the brain in order to protect it. Elevated levels of acid in the baby's blood after birth were consistent with it having produced lactic acid by expending energy obtained anaerobically. Exaggerated Moro reflexes, irritability, and seizures in the first 36 hours after birth were consistent with an acute injury to the brain caused by oxygen deprivation. So also was the baby's elevated glucose level after birth. As there were no indications in Mrs Scott's medical history or in the pregnancy to explain the cerebral palsy, and as the symptoms were consistent with oxygen deprivation over a relatively short time, Dr O'Regan concluded that oxygen deprivation between the abandonment of the rotational forceps delivery and delivery by Caesarean section was the most likely cause of Robbie's cerebral palsy. Had he been deprived of oxygen for only ten minutes, he might not have suffered permanent injury. But Robbie suffered hypoxia for about twenty minutes and that caused him his injury, which, as he has developed, has evolved from dystonic cerebral palsy to dyskinetic cerebral palsy, manifested by dysfunction in motor control.

[12 ] I accept the evidence given by Professor Murphy and Dr O'Regan on this issue.

Dr Cooper's experience in 1990
[13 ] Dr Cooper graduated MB ChB from Queen's University, Belfast in 1980 and, after serving as a junior house officer in Belfast, decided to pursue obstetrics and gynaecology as her medical career path. She worked in Northern Ireland, initially as a senior house officer and since 1985 as a registrar, until February 1989 when she obtained employment in Edinburgh as a senior registrar. She won the gold medal in the examinations of the Royal College of Obstetricians and Gynaecologists in 1985. In Edinburgh she worked initially in the Simpson Memorial Maternity Pavilion and then in the Eastern General Hospital, where she was working in June 1990. Thereafter she returned to the Simpson Memorial Maternity Pavilion before she was appointed as a consultant in obstetrics and gynaecology at St John's Hospital, Livingston in August 1990, a post which she took up on 1 February 1991. She explained in her evidence that by June 1990 she had performed several hundred rotational forceps deliveries and that she was confident of her ability to judge when it was suitable to do so.

Dr Cooper's explanation of her decision
[14 ] Dr Cooper stated that, when deciding to expedite Robbie's delivery, she was faced with three options, which were whether to use rotational forceps in the labour room, whether to use the forceps in the operating theatre in a trial of forceps or whether to perform a Caesarean section. She explained her standard practice when deciding whether conditions were appropriate for forceps delivery. There were six pre-requisites. First, the mother's cervix was fully dilated. Secondly, her membranes had ruptured. Thirdly the baby's head was the presenting part. Fourthly, none of the baby's head was palpable on abdominal examination. Fifthly, she was able to determine the baby's position by vaginal examination and it was far enough down the pelvis for forceps delivery. Sixthly, the baby's head did not have excessive moulding, which would have suggested that it would have difficulty in being delivered through the pelvis.

[15 ] As Mrs Scott's membranes had been ruptured and she was in the second stage of labour, the baby's vertex was at S+1, the foetal head was not palpable on abdominal examination, and there was not excessive caput or moulding, Dr Cooper was able to consider a rotational forceps delivery with confidence of success. While some obstetricians were prepared to perform a rotational forceps delivery when the baby's head was one-fifth palpable on abdominal examination, she would have done so only as a trial of forceps in the operating theatre with personnel and equipment ready to perform a Caesarean section if the forceps delivery were not successful. In Dr Cooper's view, a trial of forceps was appropriate where the obstetrician had reasonable doubt whether a forceps delivery would be successful. She said that the criteria for making this judgement included (i) the parity of the mother (whether she had had a baby before), (ii) the size of the mother's pelvis compared with the size of the baby, (iii) the progress of the first and second stages of labour and the presence of risk factors such as ante-natal problems or foetal distress which might indicate a compromised baby and (iv) the findings on abdominal and vaginal examination. She did not accept that rotational forceps delivery from the ROT position was significantly easier than from the ROP position; both required rotation and both would involve traction and delivery. Having carried out the necessary examinations, and having regard to the experience which she had acquired in delivering babies by Kiellands forceps, Dr Cooper was confident that she would succeed in delivering Mrs Scott's baby. She explained that if she had had doubt she would have initiated a trial of forceps. She recognised that the consequences of a failure to deliver by forceps could be very serious for a baby but in this case she had close to complete confidence that she would undertake the delivery successfully in the labour room. She described the collapse in the foetal heart rate during the attempted rotation as "an unforeseeable and unexpected event".

[16 ] Mrs Scott had been in the second stage of labour for almost four hours when Dr Cooper decided to perform the rotational forceps delivery. Dr Cooper did not accept the suggestion that this was a clear indicator that she should not have done so; the duration of the second stage was influenced by Mrs Scott's epidural anaesthesia. Nor was she dissuaded by the non-reassuring decelerations at about 0200 hours as the foetal heart rate had made a good recovery by the time she took the decision and she had no cause to believe that she was dealing with a compromised foetus. She explained that if there had been persistent bradycardia she would have not have used the forceps in the labour room; but there was not.

[17 ] Although obstetric practice had changed since 1990, Dr Cooper had not altered the criteria by which she judged whether to perform a rotational forceps delivery in the labour room or to perform a trial of forceps in the operating theatre. Guidance on current practice was set out in Guideline No 26 of the Royal College of Obstetricians and Gynaecologists ("the 2005 RCOG guideline") which was issued in November 2005. She accepted that guidance as entirely sensible. The reasons for the change in practice were, first, that local analgesia was now considered inadequate and spinal anaesthesia was usually administered in theatre; secondly, junior medical staff now had less experience in their training years both through a reduced number of working hours per week and also fewer years of training; and, thirdly, there was a fear of litigation. But the disadvantage of taking straightforward cases to the operating theatre was that it could traumatise the parents of the baby. As a result of the change in practice it was unlikely that Dr Cooper would now perform a Kiellands forceps delivery in the labour room but she remained prepared to do so if an operating theatre were not available.

The differing expert opinions
Mr Anthony Johnson
[18 ] The pursuer's expert, Mr Anthony Johnson, is a very experienced obstetrician and gynaecologist. During his career from 1966 to 2001 he worked in Cambridge, London, Brighton and Sheffield. From 1978 to 2001 he was a consultant obstetrician and gynaecologist at the Jessop Hospital for Women in Sheffield and an honorary senior lecturer at Sheffield University. Since his retirement he continues to teach on courses for the Royal College of Obstetricians and Gynaecologists ("RCOG") and to examine for the General Medical Council. He is also an experienced expert witness in medico-legal work.

[19 ] Other than certain comments about the increases in the amount of syntocinon which was given to Mrs Scott (which are not relevant to this case), he did not criticise the care of Mrs Scott before Dr Cooper decided to attempt to deliver the baby by forceps at about 0210 hours on 16 June. In the hours before then he suggested that the CTG trace showed increasing foetal distress, but he opined that the decision at 0015 hours to leave Mrs Scott for one hour before commencing pushing was acceptable practice. In his opinion the decelerations after 0135 hours were much more significant, the CTG trace was by then very suspicious, and the midwives had been right to be concerned and to request Dr Cooper to attend at about 0155 hours.

[20 ] He criticised Dr Cooper for her decision to attempt a Kiellands forceps delivery in the labour room. He opined that she should instead have arranged a trial of forceps in the operating theatre so that, if the vaginal operative delivery did not succeed, she could deliver the baby immediately by Caesarean section and thus avoid the risks of damaging the baby by a failed forceps delivery. He said that in deciding to attempt to deliver the baby in the labour room by the use of Kiellands forceps, Dr Cooper acted in a way in which no competent obstetrician exercising reasonable care would have acted. She was, as he put it by reference to the famous English law test of medical negligence (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), "Bolam negligent". In his report he stated his opinion that in the circumstances which existed in relation to Robbie Scott at 0210 hours on 16 June 1990 there would be no responsible body of obstetric opinion that would have countenanced carrying out a Kiellands rotational forceps delivery other than as a trial of forceps in the operating theatre. The only options that a competent body of clinicians would consider were a trial of forceps or a Caesarean section.

[21 ] Mr Johnson accepted that in 1990 and also in 2005 it was acceptable for experienced obstetricians to carry out forceps deliveries in the labour room rather than in the operating theatre, but only when such deliveries were straightforward and the obstetrician could be almost certain that the forceps delivery would succeed. In this case he considered that there could not have been sufficient confidence in the outcome of the rotational forceps delivery to merit taking the risk of failure outside the operating theatre. In particular, he considered that there were four features in this case which militated against rotational forceps delivery in the labour room. The first two features were the most important and he suggested that when they were present there was an unwritten rule that an obstetrician should not attempt rotational forceps delivery except as a trial of forceps in the operating theatre. The first feature was that the baby was in the ROP position. This meant that the obstetrician would have to rotate the baby's head through approximately 135 degrees to achieve the desired occipito-anterior ("OA") position. It also meant that the baby's head was likely to be relatively deflexed and therefore more difficult to rotate. The second feature was that the vertex of the baby's head was only at one centimetre below the ischial spines. This combined with the ROP position meant that there was a sufficient chance of failure that attempted forceps delivery in the labour room was unsafe and inappropriate. The third feature was that there had been evidence of foetal distress in the decelerations which had occurred since 0135 hours on 16 June and in the more persistent deceleration which led to the midwives requesting Dr Cooper to attend at 0155 hours. The fourth feature was the slow progress of the second stage of Mrs Scott's labour.

[22 ] In relation to the second feature Mr Johnson suggested that, as on vaginal examination the baby's head was at S +1, Dr Cooper's recollection that on abdominal examination she had found the baby's head to be no-fifths palpable must have been incorrect. He opined that the baby's head would have been at least one-fifth palpable and probably two-fifths palpable. In support of this view he referred to a diagram of a woman's pelvis which was published in "Safe Practice in Obstetrics and Gynaecology" (ed. Roger Clements (1994)), a medico-legal textbook, at p. 226. This diagram, which Mr Johnson stated was originally published in Myles Textbook for Midwifes, equated the S + 1 station of the presenting head with a finding on abdominal examination that the baby's head was about two-fifths palpable. On questioning Mr Johnson insisted that the S+1 station equated to the head being two-fifths palpable on abdominal examination. Both Dr Cooper and Professor Murphy challenged the accuracy of this diagram and of that equation, and I discuss this further in paragraph [39] below.

[23 ] Mr Johnson opined that a failed forceps was a desperate emergency and that it only arose as a result of substandard care. He referred to the following textbooks: Hibbard, "Principles of Obstetrics" (1988), pp.498, 507-508 and 513; Turnbull and Chamberlain, "Obstetrics" (1989) pp.842-848, Dewhurst's "Textbook of Obstetrics and Gynaecology for Postgraduates" (4^th ed 1986) pp.430-431; and Kerr's "Operative Obstetrics" (8^th ed 1971) pp.521-523, (9^th ed 1977) pp.495-496 and (10^th ed 1982) pp.290-291. His position in summary was that there was a rule that if there was any doubt about the success of assisted delivery then one must attempt that delivery in theatre as a trial of forceps.

[24 ] Mr Johnson was referred to a medico-legal report by the late Dr Gordon Lang, which criticised Dr Cooper for attempting a forceps delivery outside the operating theatre or without being prepared to perform an immediate Caesarean section should the forceps fail. It was clear that when he formed his opinion, Dr Lang had not had the benefit of Dr Cooper's account of her actions which would probably have caused him to qualify some of his criticisms, nor had he seen the CTG trace. As a result of his untimely death he was not available to be cross-examined. I am therefore not prepared to attach weight to Dr Lang's untested views.

Professor Deirdre Murphy
[25 ] Professor Murphy, who gave evidence at the request of the defenders, is also a very distinguished obstetrician. She graduated MB ChB from the University of Dublin in 1989, became a member of the RCOG in 1996 and gained a doctorate of medicine from the University of Dublin in 1997. Since 2002 she has been Professor of Obstetrics and Gynaecology at the University of Dundee, where she has divided her time equally between clinical work on obstetrics at Ninewells Hospital and her research. Between 1993 and 1996 she was a research fellow at Oxford University, where she studied the ante-natal and intra-partum origins of cerebral palsy while maintaining her clinical work in obstetrics. She is chairman of the Guideline Audit Committee of the RCOG, was responsible for the decision to revise the RCOG's guidelines on operative vaginal delivery and was a co-author of the 2005 RCOG guideline (see paragraph [17] above).

[26 ] On the central issue of professional negligence, namely whether it was acceptable obstetric practice to attempt a rotational forceps delivery in the labour room, she disagreed with the opinion of Mr Johnson. In her opinion, apart from a deceleration at 2230 hours on 15 June, the CTG trace of the baby's heart beat had been largely reassuring until 0130 hours on 16 June 1990, when a single episode of a late deceleration and slow recovery was an indicator that more caution was required. She agreed with the decision of the labour ward sister to recommend organised pushing. When the decelerations occurred at 0155 and 0200 hours, these indicated that it was time to get on with delivering the baby. While the deceleration to 65-70 bpm had lasted about three minutes, the return of the foetal heart rate to 120 bpm with good variability supported the view that the baby was in good condition at about 0210 hours. She therefore did not share Mr Johnson's view that the baby was compromised at that time. Nor did she share his view that the labour had been dysfunctional. While it had been slow, the administration of syntocinon enabled Mrs Scott to achieve full dilatation and the baby had progressed from position S-1 to S+1. The progress of the labour was not a warning sign.

[27 ] In her opinion Dr Cooper had had three decisions to make: whether to deliver the baby; the method of delivering the baby; and where to deliver the baby. In relation to the first two decisions she opined that Dr Cooper had been correct to deliver the baby when she decided to do so, and that she was also correct to choose to attempt the delivery by rotational forceps. The abdominal and vaginal examinations had revealed that the prerequisites for a forceps delivery were in place; the mother was of average size as was the baby; the baby's head was well down and visible at the pelvis in position S+1; there was a small amount of caput; and the baby was in the ROP position. In her view the ROP position was an indication that a rotational forceps delivery was appropriate. It was acceptable practice to perform a rotational forceps delivery when the baby's head was one-fifth palpable. In this case the baby's head was further into the pelvis at no fifths palpable. She commented on the diagram in the medico-legal textbook referred to in paragraph [22] above, and suggested that it was misleading, observing that it was inconsistent with the text of the same textbook at p.231 and also with the commentary in Dewhurst (above) at p.430. She was adamant that the diagram made no sense in its suggestion that an observation of the baby's head at S+1 equated to the baby's head on abdominal examination being two fifths palpable. As a mid-cavity delivery was defined as being when the leading part of the baby's head was between S+0 and S+2 but the baby's head must not be more than one-fifth palpable on abdominal examination, it would not be possible to perform a mid-cavity delivery if the diagram were correct.

[28 ] On the crucial decision of whether to deliver in the labour ward or to take the mother to the operating theatre for a trial of forceps Professor Murphy supported Dr Cooper's decision. She explained that such a decision was appropriate if the experienced obstetrician, after examining the mother carefully, was confident that he or she could deliver the baby successfully. A rotational forceps delivery required clinical skill, experience and care. In her opinion, Dr Cooper had the necessary experience and skill to make the decision. Professor Murphy said that on the information available she would have judged the baby to be in good condition and would have considered that there was a high degree of probability (90%) that the baby would be successfully delivered by forceps in the labour room. That high probability was necessary if the delivery was to be attempted in the labour room. She did not accept the significance of third and fourth features that Mr Johnson founded on, namely prior evidence of some foetal distress and the slow progress of labour (see paragraph [21] above). She rejected the suggestion that the baby's ROP position and the leading part of his head at the S+1 position militated against a forceps delivery in the labour room. Having regard to the information which was available to the obstetrician about the mother and baby, including that revealed by the abdominal and vaginal examinations, it was in her view perfectly acceptable practice both in 1990 and 2005 to attempt a rotational forceps delivery in the labour room. Professor Murphy said that she would have attempted a rotational forceps delivery of a baby in such a mid cavity and ROP position in the labour room both in the early 1990s and now if she were confident that she would succeed. She was also aware of other distinguished obstetricians who would do the same. She was aware that Dr Cooper had not noted whether there was moulding of the baby's head but stated that it was common for obstetricians not to record a negative finding of that nature. The fact that swelling was recorded as "caput +" was consistent with the absence of significant moulding as moulding caused by an obstacle would have caused excessive swelling.

[29 ] She said that the acute bradycardia which Robbie Scott suffered was an extremely unusual occurrence on an attempted forceps delivery and that it could not have been foreseen. She pointed out that Dr Cooper had had back up available as there was an operating theatre in close proximity and an anaesthetist and experienced midwives were present within the hospital and could be on hand at short notice.

[30 ] In support of her report Professor Murphy produced the following literature to which she or others referred in evidence: the 2005 RCOG guideline, an article (of which she was the first author) in the Lancet Vol 358. (2001) p.1203 which was a cohort study of early and neonatal morbidity associated with operative delivery in the second stage of labour, an article (of which she was the first author) in the BJOG 2003 Vol 110. p.610 which was a cohort study of operative delivery in the second stage of labour and the standard of obstetric care, an abstract of an article by Revah and Others in the American Journal of Obstetrics and Gynaecology 1997. Vol 176. p.200 on failed trials of vacuum or forceps and the maternal and foetal outcome, and an article by Tuffnell and Others in the BMJ Vol 322. (2001) p.1330 on the interval between decision and delivery by Caesarean section.

[31 ] She explained that the 2005 RCOG guideline, which recommended that a rotational forceps delivery should be attempted in the operating theatre, was promulgated because of concerns that there had been problems with registrars attempting such deliveries in the labour room. In particular there had been three concerns. First, it was now more common for obstetricians to use a vacuum cup which had a higher failure rate than forceps. Secondly, registrars had a shorter period of specialist training and much less hours of clinical experience than in the past. Thirdly, far more mothers were obese than in the past and this made it more difficult to assess the relationship between the baby's head and the mother's pelvis both on abdominal examination and on vaginal examination. The 2005 RCOG guideline is much more specific in its guidance than previous guidelines as to the type of delivery, where to deliver and the degree of supervision required. It was designed to guide future obstetric practice. She opined that one would now have to have a good reason to deliver a baby in the OP position in the labour room rather than in the operating theatre, but that was a marked change in practice since 1990.

[32 ] When asked on cross-examination to consider Mr Johnson's report she explained that she disagreed with his opinion on the issue of negligence. In her opinion there was a range of acceptable obstetric practice and Dr Cooper's decision to deliver by rotational forceps in the labour room was within that range; some obstetricians would have taken Mrs Scott to the operating theatre while others would have been comfortable to do what Dr Cooper did. She accepted that there was a risk of cerebral palsy with the delivery of every baby but the risk was very small even after a difficult labour where a mother needed assistance. She did not accept that this was a case where the obstetrician would have had a heightened concern for the welfare of the baby as there was no indication that the foetus was compromised when the decision to deliver in the labour room was taken.

Decision
Legal issues
[33 ] Counsel for the pursuer referred me to Hunter v Hanley 1955 SC 200, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296, Hucks v Cole [1993] 4 Med LR 393, Bolitho v City and Hackney Health Authority [1998] AC 232 and my unreported decision in Honisz v Lothian Health Board [2006] CSOH 24. Counsel for the defenders also referred me to those cases and also to Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. There was no material dispute as to the law; parties differed on how I should apply the law to the facts established by the evidence.

[34] Where, as in this case, the pursuer alleges deviation from normal medical practice, he must prove (i) that there was such a usual and normal practice at the relevant time, (ii) that the doctor had not adopted that practice and (iii) that the course which the doctor adopted was one which no professional person of ordinary skill would have taken if he or she had been acting with ordinary care: Hunter v Hanley, Lord President Clyde at p.206. It is not disputed that in this case the relevant standard of professional person is the standard of a senior registrar in obstetrics.

[35 ] In this case there was conflicting expert medical evidence as to the existence of a normal practice in 1990 and also in 2005 and as to the acceptability of Dr Cooper's decision to attempt the roational forceps delivery in the labour room. As parties referred me to my opinion in Honisz as an accurate summary of the relevant law, I take the easy course of citing what I said in that case:

"[39] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at p.639F-G). Secondly, however, the court does not defer to the opinions of the relevant professionals to the extent that, if a defender lead evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson at pp.241G-242F, 243A-E). Where a judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgment. Thus it will normally require compelling expert evidence to demonstrate that an opinion held by another medical expert is one which that other expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of Hunter v Hanley... As Lord Browne-Wilkinson said in Bolitho (at p.243D-E), 'it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed.'

[40] An example of such a rare case is that of Hucks v Cole [1993] 4 Med L R 393, which Lord Browne-Wilkinson discussed in Bolitho. In that case a general practitioner failed to give penicillin to a lady in a maternity ward who had a septic spot and as a result she developed fulminating septicaemia. The defendant knowingly took the risk that the lady could develop puerperal fever because the risk was small and he was supported in his decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the Court of Appeal upheld his decision, Sachs LJ holding that there was a lacuna in professional practice and that the defendant knowingly took an easily avoidable risk which elementary training had instructed him to avoid. As, in the court's judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk."

[36 ] The case of Edward Wong Finance, which Lord Browne-Wilkinson discussed in Bolitho, is consistent with this approach. Professional practice is not conclusive evidence of the prudence of a course of action where that practice, which a profession has adopted as a matter of its own convenience, involves risks that are foreseeable and readily avoided.

Whether the Pursuer has established negligence
[37 ] In this case, there was no dispute between the experts as to the appropriateness of attempting a rotational forceps delivery in the circumstances of Mrs Scott. Their disagreement was as to where that delivery should be attempted. That in turn depended in large measure on their assessment of the risks involved.

[38 ] I do not accept Mr Johnson's assertion that in 1990 there was no school of thought among competent obstetricians that would have sanctioned an attempt to deliver a baby by Kiellands forceps in the labour room rather than in the operating theatre where the baby's head was ROP and the leading part of his head at the S + 1 position. In that regard I accept the evidence of Dr Cooper and Professor Murphy who explained that there were many competent obstetricians who would have attempted a rotational delivery in the labour room in the circumstances which existed in Mrs Scott's case and that they would still do so. I have considered the literature that Mr Johnson produced in support of his views. Those textbooks vouch the danger of failed forceps, advise that forceps be attempted in theatre if the clinician is in any doubt and express views that most occurrences of failed forceps are the result of fundamental mistakes in technique, inexperience or disobeying the ground rules. See, for example, Dewhurst at p.430, Hibbard at p.508, and Turnbull & Chamberlain at pp.847-848. But the failures listed in those texts, such as not recognising a disproportion between the mother's pelvis and the size of the baby, acting before the mother's cervix was fully dilated or failing to observe that the foetus's head was in the OP position, do not apply in this case. It appears that Dr Cooper did not make any of the mistakes identified in the textbooks and it is not clear why Robbie's head did not rotate.

[39 ] I have to add that I was concerned about Mr Johnson's insistence on the accuracy of the diagram referred to in paragraph [22] above and his assertion that there was no obstetrician of any seniority who would agree with Professor Murphy that it was inaccurate. It was evident from the text of the textbooks referred to in paragraph [27] above and Mrs Stacey conceded in her submission that the diagram was inaccurate, as Dr Cooper and Professor Murphy had said. While Mr Johnson had considerable experience as an expert witness, I detected that he had a tendency to assert that his views were shared by the entire obstetric discipline, without putting forward material to support that assertion. In the case of the diagram he was demonstrated to be wrong. In relation to his opinion on the central question of negligence, he spoke of Dr Cooper having broken the rule that if there is any doubt about the success of a forceps delivery, one performs it as a trial in the operating theatre and referred to the textbooks in support of this view. But he accepted that there is never absolute certainty in the delivery of babies and ultimately rested his view on the proposition that while, without the benefit of hindsight, it was more likely than not that Robbie Scott would be delivered safely, there was not sufficient certainty (which he set at over 90%) of that outcome so as to justify an attempt outside the operating theatre. The difference between him on the one hand and Professor Murphy and Dr Cooper on the other was in their assessment of the likelihood of success of the rotational forceps delivery in Robbie Scott's case.

[40 ] I have also had regard to the 2005 RCOG guideline. In section 5.2 it identifies operative vaginal deliveries where the foetus is in the OP position and where there is a mid-cavity delivery or when the foetal head is one-fifth palpable per abdomen as cases which should be treated as a trial and conducted in a place where immediate recourse to Caesarean section can be undertaken. In most cases such a place will be the operating theatre. While taking account of the circumstances which Dr Cooper and Professor Murphy explained were the background to the 2005 RCOG guideline (see paragraphs [17] and [31] above), it appears that there is emerging a normal practice that rotational deliveries of foetuses in the OP position and in mid-cavity are performed in theatre and the clinician who performs such a delivery in the labour ward will require to justify departure from normal practice. Professor Murphy accepted that an obstetrician carrying out such a delivery in the labour room now would require to have a good reason for doing so. She suggested that there were three good reasons: first, where the foetus had already suffered a severe bradycardia, in which case the benefits of speedy delivery would outweigh the risks of failure; secondly, where the mother is pushing well, the baby is relatively small and the clinician knows she can rotate and deliver it; and, thirdly, where the baby is a second twin. Nonetheless, I accept Professor Murphy's evidence that the views which are now expressed in the 2005 RCOG guideline have emerged over time and that there was no such normal practice in 1990. I also accept that in 1990 and now, there were and are responsible and experienced obstetricians who will attempt rotational mid-cavity delivery of a foetus who is in the OP position outside the operating theatre.

[41 ] As I accept that there was a responsible body of medical opinion which would have attempted such rotational delivery in the labour room rather than in the theatre, the central question in this case becomes whether this is an exceptional case where the practice which distinguished medical practitioners have maintained cannot be supported when subjected to rational analysis.

[42 ] As Professor Murphy stated, birth is the most dangerous journey that a human being makes. The vast majority of babies arrive at the end of that journey unharmed. But cerebral palsy is one possible result and it can be a very severe outcome. The task of the obstetrician is to attempt to reduce morbidity in both mothers and babies.

[43 ] In view of potentially catastrophic consequences of prolonged bradycardia, it is understandable that a responsible obstetrician would hold the opinion in more difficult cases that a trial of forceps avoids unnecessary risk and that rotational delivery should not be attempted in the labour room. But it appears to me that another responsible obstetrician may properly balance his or her legitimate confidence of succeeding in a forceps delivery (where he or she has the necessary experience and skill), the expressed wishes (if any) of the mother, the obstetrician's wish to avoid unnecessary emotional trauma where parents are afraid of the operating theatre and the remoteness of the risk against the gravity of the outcome should that risk eventuate. In my opinion these are all factors to be taken into account in the exercise of professional judgement. In this case I am satisfied that Dr Cooper and Professor Murphy were aware of the risks and benefits. This is not a case as in Hucks v Cole where a medical practitioner failed to act in a way that he had been instructed to act in his elementary training nor is it a case like Edward Wong Finance where the practice was adopted simply for the convenience of the professionals. I am unable to conclude that there is no rational basis for the practice which Dr Cooper adopted.

[44 ] Accordingly, I do not consider that Dr Cooper was negligent in her care of Robbie Scott.

Causation
[45 ] I have discussed Professor Murphy's and Dr O'Regan's evidence about the cause of Robbie's cerebral palsy in paragraphs [10] and [11] above. It is necessary now to consider causation in law.

[46 ] Professor Murphy explained in her report that there is a clinical standard, which is not always met, that an emergency Caesarean section should be completed within thirty minutes of the decision to operate and deliver the baby. She referred to the article by Tuffnell and Others mentioned in paragraph [30] above. Mr Bell QC sought to persuade me not only that the defenders were not under a legal duty to deliver Robbie Scott in under thirty minutes but also that it had not been established that he would have been delivered more quickly, so that the damage which he suffered would not have occurred, if Dr Cooper had attempted the rotational forceps delivery only as a trial in the operating theatre. The pursuer does not argue that the time taken to deliver him once the attempted rotational forceps delivery had failed was excessive. But, as Professor Murphy acknowledged, the recommendation of thirty minutes is a standard for the purpose of auditing performance and babies can suffer irreversible damage within that time. In an emergency, such as the one which Robbie Scott suffered, where there is effective circulatory collapse, the task of the obstetrician is to deliver the baby as quickly as possible.

[47 ] I am satisfied that on balance of probabilities the catastrophic collapse in Robbie's oxygen supply occurred at the time and as a result of the attempt to rotate his head with the Kiellands forceps. Professor Murphy, while emphasising that there was no certainty, considered that it was plausible that an acute cord accident, such as a tightening on rotation, caused the bradycardia. Mr Johnson considered that there was a causal link between the rotation and the bradycardia. I am also satisfied that if Mrs Scott had been taken to the operating theatre for a trial of forceps and if the foetal bradycardia occurred during that trial, it is more likely than not that Robbie Scott would have been delivered more quickly than in fact occurred. It is important to recall that the reason that it is recommended that a trial of forceps be carried out in the operating theatre is in order to minimise the time between any failure of the attempted forceps delivery and the eventual delivery by Caesarean section. While Mr Johnson's suggestion, that the time would only have been five minutes, may have been optimistic, I consider it likely that delivery would have been completed in considerably less time than the twenty to twenty-four minutes that passed between onset of Robbie Scott's acute bradycardia in the labour room and his delivery in the operating theatre. Professor Murphy in her report suggested that there might have been a saving of ten minutes. Mr Johnson suggested that the saving would have been in excess of fifteen minutes. As the damage to a foetus from an acute hypoxic insult tends to increase over time, it is likely that the time lost in this case because the attempted forceps delivery was not a trial in the operating theatre made a material contribution to the severity of the brain damage that Robbie Scott suffered.

[48 ] Mr Bell QC submitted that Bolitho supported his position that there was no proof of a causal connection between any negligence in attempting to deliver in the labour room and the adverse outcome which Robbie Scott suffered. In my opinion, Bolitho does not assist his submission. In that case, where the doctor was negligent in failing to respond to a nursing sister's phone call by attending the patient, the issue of causation gave rise to two separate questions. The first question was what the doctor would have done if she had not been negligent and had attended her patient. It was held in answer to that question that she would not have intubated the child and thus would not have prevented his circulatory collapse and cardiac arrest. As a result, the second question arose, namely whether a decision not to intubate would have been negligent. The second question arose because the defendants could not escape legal liability by saying that the damage would have happened in any event because the doctor would have committed another breach of duty. In the present case, once the emergency had arisen in the labour room, it was not negligent for the defenders to take between twenty and twenty-four minutes after the onset of the acute bradycardia to deliver Robbie Scott. But that is not the issue as it is looking at the situation which in fact occurred (ex hypothesi after a negligent act) and not the hypothesis of what would have occurred if there had been no negligence. Here what is relevant is the first question. On the hypothesis that it was negligent not to perform a trial of forceps in the operating theatre, the question would be: what, on the balance of probabilities, would the outcome have been if that trial of forceps had been undertaken and had failed? And I give my answer to that question in paragraph [47] above.

[49 ] If, therefore, I had concluded that Dr Cooper had been negligent in attempting a rotational forceps delivery in the labour room instead of proceeding immediately to a trial of forceps, I would have held on balance of probabilities that that negligence caused or materially contributed to Robbie Scott's cerebral palsy.

Quantification of damages
[50 ] Parties agreed in a Joint Minute that, if the defenders were found liable in reparation to the pursuer, the damages should be £900,000 net of any liabilities that the defenders might have in terms of section 6 of the Social Security (Recovery of Benefits) Act 1997, inclusive of interest to the later of (a) the date of payment or (b) 31 December 2005. It was also agreed that the sum of £900,000 included £50,000 in respect of past solatium and 70,000 in respect of past services which Mrs Caroline Scott provided the pursuer. Provision was also made for the award of interest on the sums of £50,000 and £70,000 in the event that a determination that the defenders were liable to make reparation to the pursuer was made only after 31 December 2005. As I have not made such a determination, I do not need to say anything else.

Conclusion
[51] As the pursuer has not proved that Dr Cooper was negligent in her care for him at the time of his birth, his action fails. I therefore repel the pursuer's pleas-in-law, sustain the defenders' 2^nd and 3^rd pleas-in-law and assoilzie the defenders from the conclusions of the summons.