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OUTER HOUSE, COURT OF SESSION
[2007] CSOH NUMBER154
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A174/05
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OPINION OF LORD HODGE
in the cause
VERONICA DINELEY
Pursuer;
against
LOTHIAN HEALTH
BOARD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
J. Campbell, Q.C., Henderson; HBJ
Gateley Wareing (Scotland) LLP
Defenders: Ferguson, Q.C.,
MacSporran; R.F. Macdonald
29 August 2007
[1] This
is an action for damages for alleged medical negligence during the final hours
before the birth on 23 February 1996
of Jessica Dineley in the Eastern General
Hospital in Edinburgh. Jessica has dyskinetic cerebral palsy and the
parties have agreed in a joint minute that the cause of Jessica's condition was
an acute hypoxic episode which occurred in the twenty-four minutes immediately
before she was delivered by emergency caesarean section. On 11 May 2007 the court ordered that the
proof be confined to the issue of liability and that the quantification of any
damages be held over to a future date.
In the joint minute parties agreed that ฃ3,800,000 would be paid as damages
if the defenders were found liable, under reservation of a further claim by the
pursuer in relation to assistance technology.
As a result the proof which I have heard dealt only with the issue
whether there was negligence in the care of Mrs Dineley's baby in the period immediately
before her birth which caused or failed to prevent that acute hypoxic episode.
[2] The
pursuer sought to establish that the obstetric registrar, Dr Maziah Ahmad
Mahadin ("Dr Maziah"), was negligent in her care of Jessica in the following
ways. First, it was asserted that she was negligent in her decision to attempt
to deliver Jessica by a trial of forceps in the operating theatre using
Kielland's forceps
as, having regard to the known circumstances of Mrs Dineley's labour, the
prospects of achieving an assisted vaginal delivery were poor. Secondly, it was alleged that Dr Maziah
negligently performed the trial of forceps by raising the baby's head too far
when attempting to rotate her head and thus allowed a cord prolapse or cord
occlusion to occur.
[3] As
well as witnesses of fact, I heard the expert opinion evidence of Professor
Alan Cameron, a consultant obstetrician at the Queen Mother's Hospital,
Yorkhill, whom the pursuer called. The
defenders led the expert evidence of Professor Deirdre Murphy who is a
consultant obstetrician and gynaecologist at Trinity College & Coombe
Women's Hospital, Dublin. She is also
chairman of the Guidelines and Audit Committee of the Royal College of
Obstetricians and Gynaecologists ("RCOG") and a co-author of the Guidelines on
Operative Vaginal Delivery produced by the RCOG in 2005 ("the RCOG guidelines").
The
events leading up to Jessica's birth
[4] Having
received appropriate ante-natal care, Mrs Dineley was admitted to the Eastern
General Hospital
in Edinburgh at 0830 hours on 22 February 1996 after a pregnancy of
forty-one weeks in order to induce the birth of her first child, Jessica. At 0900 hours a consultant obstetrician, Dr
Scrimgeour, examined her in the company of Dr Maziah. At 1640 hours doctors performed an artificial
rupture of the membranes and clear liquor was observed. At this time Mrs Dineley's cervix was 2 cm
dilated and the baby's head was recorded as being 3 cm above the ischial
spines. The first stage of labour was
uneventful. Mrs Dineley made good
progress which was recorded on the partogram.
At 1900 hours the cervix was
5 cm dilated and the baby's head was recorded in the nursing notes as being
between 1 cm and 2 cms above the ischial spines. At 2200 hours the midwife, Mrs
Dunn, examined Mrs Dineley and recorded that she felt rectal pressure at the
height of contractions and that the baby's head was not yet visible. Mrs Dunn conducted a vaginal examination at
2230 hours and recorded that the cervix was then 9 cm dilated and the baby's
head was 2 cm above the ischial spines. Mrs
Dunn was able to feel the anterior fontanelle of the baby's head and recorded
that the head was deflexed and the back of the baby's head, the occiput, was in
a position between transverse ("OT") and anterior ("OA"). The baby's head was still not visible. Mrs Dunn repositioned Mrs Dineley from side
to side to encourage rotation and descent of the baby's head. Throughout this period, and indeed until the
trial of forceps, readings of the foetal heart rate were reassuring.
[5] At
2300 hours Mrs Dunn recorded that clear liquor was draining and that there was
"show ++". The reference to "show"
recorded that Mrs Dineley was expelling the mucus plug from her cervix and the
"++" indicated that on a scale of mild, moderate and marked, Mrs Dunn assessed
the outflow as moderate. At 2330 hours
Mrs Dunn recorded that Mrs Dineley was feeling expulsive throughout
contractions and that the vertex was visible in the distance. At 0000 hours on 23 February 1996 she again recorded that the vertex was
visible in the distance and that there had been no descent of the baby's head
yet.
[6] At
0045 hours Mrs Dunn conducted anther vaginal examination and recorded that the
cervix was fully dilated and that the baby's head was now at the ischial
spines. She noted a query whether the
baby's head was in the occipito- posterior position ("OP"). While this was the first record of Mrs
Dineley's cervix being fully dilated, it is likely that full dilatation
occurred earlier. On this issue I accept
the evidence of the pursuer's expert, Professor Cameron, and of the consultant
whom the registrar, Dr Maziah, consulted, Dr Alan Brown, that it is likely that
the second stage of Mrs Dineley's labour commenced at about or shortly after
2330 hours on 22 February.
Professor Murphy expressed the view that it was not possible to say
precisely when second stage commenced in the absence of a vaginal examination
but she accepted that in Mrs Dineley's case it was likely that she reached the
second stage of her labour at some time shortly after 2330 hours. At 0100 hours on 23 February Mrs Dunn
recorded that Mrs Dineley was attempting active pushing, that her contractions
were expulsive but short-lived, and that the baby's head was not
descending. To assist the strength of
the contractions, Mrs Dunn requested a senior house officer to site a drip to
allow the administration of oxytocin and at 0130 hours she obtained the
authorisation of a registrar to administer that drug. In accordance with an established protocol,
she started the administration of the drug at 0135 hours and doubled the dose
every twenty minutes thereafter until by 0215 hours Mrs Dineley was
receiving 12 mls per hour of the drug.
At that time Mrs Dunn recorded that the contractions were improving in
strength and frequency but that there was no real descent of the baby's head.
[7] Observing
that Mrs Dineley was getting tired from the effort of pushing and that there
was no descent of the baby's head, Mrs Dunn decided at 0220 hours to contact Dr
Maziah to review Mrs Dineley's case. Dr
Maziah arrived at the labour room within about ten minutes and shortly after
0230 hours reviewed the nursing notes, was briefed by Mrs Dunn, examined the
cardiotocograph trace of the mother's contractions and the foetal heartbeat and
conducted a vaginal examination.
Dr Maziah recorded in the nursing notes that Mrs Dineley had been
pushing for one hour and there had been no obvious descent of the baby's
head. She recorded that on vaginal
examination she found the cervix to be fully dilated and the baby's head to be
at the ischial spines. The baby's
occiput was in a transverse position to the right ("ROT"). Dr Maziah felt the foetal head for moulding
and initially formed the view that there was mild moulding (recording it as
"moulding +") but on further feeling decided that there was no moulding
(overwriting the entry as "moulding 0").
She also felt for caput or swelling of the foetal scalp and recorded an
observation of "caput ++" or moderate swelling which she considered to be consistent
with a normal labour. She considered
that there was no evidence of serious cephalo-pelvic disproportion. As a result of her review of the nursing
notes, her briefing and her examination of Mrs Dineley, Dr Maziah reached
the view that there had been a transverse arrest of labour and formed the plan
of conducting a trial of Kielland's forceps in the operating theatre where she
could promptly perform a caesarean section if she encountered difficulty in
attempting to deliver Jessica by rotational forceps.
[8] Dr
Maziah, having formed this plan, telephoned the on call consultant, Dr Alan
Brown, and informed him of the history of Mrs Dineley's labour, her findings
and her plan. She informed Dr Brown that
it was her impression that there was no obvious disproportion between the
baby's head and the mother's pelvis and that she thought that she should give
the mother the benefit of a trial of forceps.
Dr Brown explained in his evidence that, while he could not recall
Mrs Dineley's case, he would have received a detailed account of the labour and
the findings from Dr Maziah, who was a competent registrar, and that in any
event he would have asked for any information which he needed to decide on the
appropriate method of delivery. He
approved of Dr Maziah's plan to attempt a rotational forceps delivery as a
trial of forceps in the operating theatre.
[9] On
returning to the labour room after consulting Dr Brown, Dr Maziah and the
midwives then prepared to deliver the baby in the operating theatre. They called an anaesthetist who administered
an epidural anaesthetic in the operating theatre at about 0320 hours when the
infusion of oxytocin was discontinued.
Dr Maziah returned to the operating theatre at about 0330 hours and she
and the midwives prepared Mrs Dineley for forceps delivery. The cardiotocograph trace was intermittent
while Mrs Dineley was taken to theatre and prepared for the operation because
she was being moved about. But the
midwives noted that the foetal heart was satisfactory at 0330 hours and the
trace which was recorded between 0333 and 0334 hours continued to be
re-assuring. At 0340 hours the midwives,
with Dr Maziah's consent, discontinued the cardiotocograph as its straps would
have impeded the attempted delivery of the baby. Shortly thereafter, Dr Maziah carried out a
further vaginal examination. This
examination was more reliable as Mrs Dineley had by then received her epidural
anaesthetic and so would have felt less discomfort from the internal
examination. Dr Maziah recorded in her
operation notes that the baby's head remained in the ROT position and was
one-fifth palpable on abdominal examination.
The presenting part of the head remained at the ischial spines. There was moderate caput and no moulding. Dr Maziah then attempted the rotational
delivery of Jessica.
[10] Dr Maziah was able to apply the Kielland's forceps directly to
Jessica's head and, as she recorded in her operation note, she raised the
baby's head and was able to rotate it without difficulty. When it was suggested oin cross-examination that
she had not succeeded in turning the baby's head and that in fact the forceps
had slipped, Dr Maziah denied that suggestion and said that she would have
known if that had happened and that she had had the impression that not only
the baby's head but her body had turned in the rotation. As there was a dispute over both the lifting
of the baby's head and whether there was rotation, I discuss these issues in
more detail in paragraphs 14 to 23 below.
Dr Maziah, having achieved rotation of the baby's head into the desired OA
position, then applied traction on three occasions when Mrs Dineley was
having contractions but was not able to cause the baby to descend to any
significant degree. She then abandoned
the trial of forceps at about 0350 hours and she and the midwives promptly
prepared for a lower uterine segment caesarean section while the midwives tried
to listen to the baby's heart beat but were not able to detect any.
[11] On cutting into Mrs Dineley's uterus Dr Maziah found Jessica's head to be in the OT
position and deeply engaged in the pelvis.
She recorded in her operation note that she found a loop of the
umbilical cord lying between the baby's head and the lower segment of the
uterus. There was a delay in delivering
the baby as her head turned into the OP position and had to be delivered face
up. Jessica was delivered at 0404 hours
and transferred immediately to paediatric staff for resuscitation. Jessica was limp with no respiratory effort
and no audible heart rate. It was a
matter of agreement between the parties that she had suffered an acute hypoxic
episode between the commencement of the trial of forceps and her delivery. Jessica had only minimal cardiac output and Professor
Murphy opined that the baby's brain would not have been perfused and that she
had suffered an effective circulatory collapse.
No criticism was made on behalf of the pursuer of the time taken to
perform the caesarean section or of the way in which it was performed.
[12] Mrs Dineley was a woman of average height and build and Jessica
at birth weighed 3.16 kgs and so was an average baby in the tenth centile. There was therefore no obvious disproportion
in size between mother and baby which could be identified in advance or with
hindsight. The most likely explanation
of the failure to deliver by rotational forceps is either the degree of
deflexion of the baby's head or a degree of disproportion or a combination of
both of these factors.
The
likely cause of Jessica's dyskinetic cerebral palsy
[13] The evidence of both Professor Cameron and Professor Murphy
supported the agreement between the parties that the acute hypoxic event which
caused Jessica's cerebral palsy occurred during the attempted rotational
forceps delivery. There was no evidence of
a cord prolapse (that is the umbilical cord preceding the baby's head in the
birth canal) and the most likely explanation of Jessica's hypoxia is that a
loop of cord became trapped between her head and the wall of her mother's
uterus in the course of the trial of forceps. Having regard to the timing of the hypoxic
insult it is likely that movement of the baby's head caused the occlusion of
the cord which may have been present beside her head before the attempted
rotational forceps delivery. Professor
Murphy pointed out that there was evidence of the effect of intermittent and
transient cord compression on the cardiotocograph trace from 0150 hours onwards
which was consistent with the cord in that position being squeezed during
contractions. Thus the occlusion of the
cord was probably caused by the movement of the head, either by its elevation
or its rotation or both. The consequence
of the occlusion for Jessica was effective circulatory collapse.
Issues
of disputed fact
[14] There was little disagreement between the parties on the facts
of the case, which I have set out above.
Two matters however require further consideration. In order to address those issues and at the
request of parties, I ordered that the notes of Dr Maziah's evidence should be
transcribed. As the transcript contained
many omissions and errors I also listened to the digital recording of her
evidence when preparing this opinion.
[15] The first issue relates to the extent to which Dr Maziah raised
Jessica's head during the trial of forceps before attempting to rotate it. This factual dispute is critical to the second ground on which the pursuer
asserts that Dr Maziah was negligent. In
her operation note Dr Maziah recorded that she had "disengaged" the baby's head
and it was suggested that that meant that she had raised the head several
centimetres from its position with the vertex at the ischial spines so that the
head was lifted out of her mother's pelvis.
All the obstetricians who gave evidence opined that to do so would have
been an unacceptable practice.
[16] Mr James Campbell QC, for the pursuer, invited me to infer that
that was what Dr Maziah had done, that she had been negligent and that the
insult to Jessica's brain resulted from the severe compression or occlusion of
the umbilical cord which slipped between the side of her head and the wall of
her mother's uterus when her head was elevated excessively. Mr Campbell submitted that, even if Dr Maziah
did not lift the baby's head wholly out of her mother's pelvis, the court
should conclude that she lifted the head to an unacceptable extent and so
negligently caused the brain damage from which Jessica suffers.
[17] In support of either or both of those inferences, Mr Campbell
founded on the undisputed facts (a) that there was no evidence of any foetal
distress during either stage of the labour before the attempted rotational
forceps delivery, (b) that Dr Maziah raised the baby's head to facilitate
the rotation and (c) that the acute event which caused Jessica's brain damage
occurred during the attempted rotational forceps delivery. He founded on Dr Maziah's use of the word
"disengage" in her operation note and what he submitted was her unsatisfactory
attempts to explain that usage in her evidence.
Finally, he submitted that while there were other possible causes of the
cord compression during the attempted rotational forceps delivery, such as
spontaneous descent of the cord and compression caused by rotation of the head,
the court should conclude that on balance of probabilities the cause was the
excessive elevation of the head, which the medical profession recognised as a
serious risk. Obstetricians did not see
rotation of itself as posing a serious risk.
The injury to the baby was more likely to have been caused by the
dangerous practice of excessive elevation.
[18] Having considered Dr Maziah's evidence carefully I am satisfied
that that is not what she did. I am
satisfied on balance of probabilities that Dr Maziah did not disengage the
baby's head in the sense of lifting it out of Mrs Dineley's pelvis. That would have been an extremely dangerous
manoeuvre. I am not persuaded that
Dr Maziah adopted a course of action which she knew to be dangerous. Rather, as Dr Maziah said in her
evidence, she nudged the head upwards slightly to disimpact it to ease its
rotation. I formed the impression that Dr Maziah
was an honest and thoughtful witness and I accept her evidence on this
important factual issue. By 1996 she was
a registrar who had considerable experience of unsupervised forceps deliveries
including rotational forceps deliveries.
Dr Brown described her as one of the best registrars which the hospital
had had. He was confident that he would
have supervised her carrying out a delivery by Kiellands Kielland's forceps and
would have satisfied himself as to her competence. Professor Murphy suggested that by 1996 Dr
Maziah had the experience of a doctor who now (in 2007) would be completing his
training programme and would be applying for a consultant post.
[19] I am supported in this view by the fact that the term
"disengage" is sometimes loosely used by obstetricians to mean "disimpact" and
that usage would be consistent with a slight upward movement of the head which
would not of itself give rise to a significant risk of the cord slipping into a
position where it could be severely compressed.
See paragraph 33 below. In her
evidence Dr Maziah defined engagement as meaning that the presenting part of
the baby's head was at the ischial spines and disengagement involved moving the
presenting part above the ischial spines.
That use of the word "disengaged" would cover both what Dr Maziah said
she did, namely nudging the baby's head upwards slightly, and also the
dangerous lifting of the baby's head out of the pelvis. It appeared to me that Dr Maziah's apparent
initial difficulty with the use of the term and her eventual position that the
term was appropriate may have been caused at least in part by her awareness
that another expert, Dr Alastair Miller, in his report dated 11 April 1998,
had inferred from her use of the word "disengaged" that she had lifted the
baby's head out of the pelvis. Professor
Murphy spoke of imprecise linguistic usage in her profession and another
expert, Dr Peter Buchan, in his report dated 1 June 2005 declined to read Dr Maziah's use of the term
in the way Dr Miller had. In addition
Professor Murphy opined that it was not possible to say what was the most
likely cause of the cord compression in this case. While spontaneous slippage of the cord into a
dangerous position or a prolapse was unlikely in a primagravida whose uterine
walls would not have been weakened by previous childbirth, rotation of the
baby's head itself could provide the opportunity for the cord to be trapped by
the baby's head.
[20] Many obstetricians do not lift a baby's head to any extent when
attempting a rotation in order to avoid the risk of trapping the umbilical
cord. Professor Cameron and Dr Brown
adopted that approach. But it was clear
that others were prepared to lift a baby's head to a moderate degree, to about
one centimetre above the ischial spines.
There was support in medical literature for that practice: see Turnbull's Obstetrics (2nd ed
1995) pp.701 and 705, which referred to "slight upward dislodgement", and Liu
and Fairweather, "Labour Ward Manual"
(2nd ed. 1991) p.85, which stated, "the foetal head is rotated at
the level of application of the forceps.
If difficulty is encountered the foetal head is moved up or down a few
centimetres to seek a level which allows rotation with the least effort". While neither Professor Cameron nor Professor
Murphy supported the lifting of a baby's head by "a few" centimetres if the
presenting part was at the ischial spines before it was lifted, both
acknowledged that there was a recognised and responsible practice of slight
upward dislodgement or disimpaction of the foetal head and were prepared to
accept an arbitrary figure of about one centimetre above the ischial spines as
the height to which the presenting part could properly be lifted. Dr Maziah's description of what she did was
consistent with this practice.
[21] I am satisfied therefore on the balance of probabilities that
Dr Maziah did not negligently raise the baby's head excessively when attempting
the rotational forceps delivery. As a
result the pursuer's second case of negligence fails.
[22] The second area of disagreement on what occurred relates to
whether Dr Maziah managed to rotate Jessica's head to the OA position
before applying traction. In suggesting
that there had not been rotation Mr Campbell founded principally on three
matters. First, Mrs Dunn in her nursing
notes recorded that the Kielland's forceps delivery had been abandoned "due
to difficulty in rotation and descent of vertex". Secondly, the fact that on performing the caesarean
section Dr Maziah discovered that the baby's head was in the OT position
and deeply engaged suggested that the baby's head had never moved from the OT
position. Thirdly, after her birth
Jessica was noted to have left facial palsy which might have been caused by
pressure from the Kiellands forceps being moved over her face in an attempted
but unsuccessful rotation.
[23] While these factors in combination might point to the forceps
having slipped in an attempted rotation, I am satisfied that on balance of
probabilities that the rotation was successful.
Several matters point towards this conclusion. First, when Mrs Dunn was asked to comment on
her entry in the nursing notes, she was critical of herself for having written
a generalisation in the nursing notes rather than an observation. She said she had used a phrase rather than
record a judgement on the procedure and that if she had observed difficulty in
rotation she would have made a more detailed note of the problem. Secondly, I accept Professor Murphy's opinion
that it was likely that the baby moved back from the OA position to the OT
position once the trial of forceps was abandoned. Thirdly, facial palsy may result from various
forms of pressure applied to the facial nerve during forceps delivery and is
not necessarily associated with slipping forceps. Fourthly, there was no evidence of any marks
on Jessica's face at birth which one would have expected if the forceps had
slipped significantly from the sides of the baby's head and then traction had
been applied. Finally, I accept that Dr
Maziah's normal practice was to carry out a visual examination of the baby's
head to ascertain its position after rotation before applying traction with the
forceps. While Dr Maziah had no active
memory of having done so in this case, I consider it likely that she would have
carried out her normal practice. For
completeness I should add that I have not relied on Dr Maziah's evidence that
she recalled being aware that the baby's body had turned when she rotated the
forceps. This is because she did not
have a detailed recollection of the delivery and counsel did not explore the
reliability of this recollection.
Professor
Cameron's criticism of the care of Mrs Dineley and Jessica
[24] The pursuer led the evidence of Professor Alan Cameron. He criticised the care of Mrs Dineley and her
baby as negligent in two principal respects.
First, he expressed the opinion that the particular circumstances of Mrs
Dineley's labour should have alerted Dr Maziah to the likely failure of an
attempt at assisted vaginal delivery so that, if she had acted with reasonable
care, she would not have exposed Jessica to the risks which eventuated but shwould have proceeded
immediately to a caesarean section. He
emphasised the importance of looking at all the circumstances of a woman's
labour and opined that there were six interrelated circumstances in Mrs Dineley's
labour that militated against a trial of forceps. First, he emphasised that Mrs Dineley's
labour had progressed well during the first stage but that it had arrested
after the commencement of second stage which occurred at about 2330 hours on 22
February. Secondly, the second stage had
been allowed to continue for about four hours until the trial of forceps and
the baby's head had not descended significantly in that time. Thirdly, this failure to descend occurred
notwithstanding that oxytocin had been administered for almost two hours. Fourthly, the baby's head arrested at the
ischial spines. Fifthly, her head was
de-flexed which made it more difficult for it to fit within the birth
canal. Sixthly, the baby's head remained
one-fifth palpable on abdominal examination.
Professor Cameron explained that he never attempted a forceps delivery
if a baby's head was to any extent palpable on abdominal examination, but it
was the combination of the six factors which persuaded him that it was
inappropriate to attempt a forceps delivery.
These factors persuaded him that the baby was in deep transverse arrest
and that there was obstructed labour caused by cephalo-pelvic disproportion. He considered the chance of a successful
operative vaginal delivery to be between ten and twenty-five per cent. To embark on a trial of forceps in light of
these six circumstances was a decision which a competent registrar should not
have made.
[25] Secondly, Professor Cameron expressed the opinion that Dr
Maziah had been negligent in raising Jessica's head before attempting to rotate
it. That had exposed her to the risk of
cord prolapse or occlusion between the side of the baby's head and the wall of
the pelvis which he thought was the most likely cause of the oxygen deprivation
which led eventually to Jessica's cardiac arrest and, despite skilled
resuscitation, to her dyskinetic cerebral palsy. He recognised that some obstetricians
considered it appropriate to raise a baby's head marginally when attempting to
rotate it but he would not do so and he thought that it was not an appropriate
procedure when the vertex was at the ischial spines and not below them. Any raising of the head which gave the
opportunity for a prolapse of the umbilical cord was dangerous. Again he criticised the decision to raise
not merely as a matter of differing clinical judgement but as an error which a
competent registrar should not have made.
[26] Mr Ferguson QC in his cross-examination referred Professor
Cameron to medical literature which was current in 1996 and also to the RCOG
guidelines which gave advice on the circumstances in which it was appropriate
to attempt an operative
vaginal delivery including a rotational forceps delivery. In citing contemporary literature he referred
to Liu and Fairweather, "Labour Ward
Manual" (2nd ed. 1991) pp.77-86, Turnbull's Obstetrics (2nd ed 1995) pp.695-714, and Dewhurst's Textbook of Obstetrics and
Gynaecology for Postgraduates (4th ed. 1990) chapter 30. Professor Cameron accepted that the
conditions laid down in those textbooks for the use of forceps were met in
Mrs Dineley's case. Similarly
Professor Cameron accepted that the case met the pre-requisites for the use of
forceps in the RCOG guidelines, which he acknowledged had been produced in part
because junior doctors had less clinical experience than in the past as a
result of reduced working hours.
Nonetheless, Professor Cameron's position was that, while the literature
and the RCOG guidelines did not exclude the use of forceps, they went no
further than to allow consideration of forceps as an option. The clinician was entitled to consider the
appropriateness of forceps in the particular case, but, in his opinion, the
facts of the case required a competent registrar to consider and then to reject
the option of a trial of forceps.
Professor
Murphy's opposing opinion
[27] Professor Murphy accepted that it was likely that Mrs Dineley
reached the second stage of her labour at about or shortly after 2330 hours on
22 February and that the second stage had run for almost four hours when the
trial of forceps began. See paragraph 6
above. But she did not criticise the
length of time for which the second stage was allowed to continue as the baby's
heart rate was re-assuring until the forceps delivery was attempted. It was not unusual to have a prolonged second
stage when the baby's head was deflexed and in a mal-position. She assessed Dr Maziah's actions by reference
to the RCOG guidelines. In her opinion
it had been wholly appropriate to proceed to a trial of forceps when Dr Maziah
did. She explained that the presence of
caput was not unusual and the absence of moulding was re-assuring. The absence of moulding suggested that the
failure to progress in second stage was caused by mal-position rather that
cephalo-pelvic disproportion. She was
not concerned that one-fifth of the foetal head was palpable on abdominal
examination as that was common when the head is was de-flexed and in a
mal-position such as OT or OP. In those
circumstances a mid cavity rotational forceps procedure was appropriate. Mrs Dineley was of average size and there was
no indication that the baby was excessively large. There was no warning of any
disproportion. An experienced
obstetrician could use the Kielland's forceps to correct to some degree the
deflexion of the head. Professor Murphy
expressed the view that, without the benefit of hindsight, she would have had a
high degree of confidence that there would have been a successful rotational forceps delivery on the
information available to Dr Maziah.
Professor Murphy stated that in 1996, when she was a registrar, she
would have managed Mrs Dineley's care in the same way as Dr Maziah and that if
she were treating her now, as a consultant, she would not hesitate to do the
same.
[28] Professor Murphy explained that the RCOG guidelines were
intended to state best practice and provide guidance which could be implemented
in the protocols of individual hospitals.
The RCOG guidelines were prepared after a a systematic
search of medical literature so that the guidance given was based on evidence
and the evidence was graded by reference to its origins. The classifications in Table 1 of the RCOG
guidelines, which defined, among other terms, mid-cavity, were long established
classifications. In particular if the foetal head was not
more than one-fifth palpable on abdominal examination and the leading point of
the baby's skull was not above the ischial spines, the baby was in mid- cavity and
operative vaginal delivery could be considered.
In addressing when such delivery should be offered, she referred to
Table 2 of the RCOG guidelines which suggested that intervention might be
appropriate where a nulliparous mother, who did not have an epidural
anaesthetic, had been in the second stage of labour for two hours without
making progress. She explained that, as
the table itself stated, this was not prescriptive and that each case should be considered individually. It was intended to encourage obstetricians to
allow a mother about two hours to deliver naturally and not to undertake
operative intervention too soon and at the same time to discourage them from
waiting too long before considering intervention. A prolonged second stage in which the mother
was pushing could exhaust the mother and reduce her ability to assist in an
operative vaginal delivery. In this case
she considered
opined that the
care given to Mrs Dineley and her baby had been entirely appropriate as, in the
absence of any sign of foetal distress, it was important to give the mother the
opportunity to allow the baby's head to rotate and then achieve spontaneous vaginal
delivery. In Professor Murphy's opinion
the passage of more than two hours in second stage in this case did not make a
trial of forceps inappropriate.
[29] She stated, and it was not contested, that all the
pre-requisites for operative vaginal delivery set out in Table 3 of the RCOG
guidelines were present in Mrs Dineley's case. The prerequisites which related to the baby
were the following: the head was not more than one-fifth palpable per abdomen;
there was vertex presentation; the cervix was fully dilated and the membranes
ruptured; the exact position of the head could be determined so that proper
placement of the forceps could be achieved; and the mother's pelvis was deemed
adequate. While the RCOG guidelines did
not exist in 1996, they were more conservative in certain areas than practice
in 1996. For example, it was now a
general practice to carry out rotational operative deliveries in the operating
theatre rather than in the labour ward and, as a benchmark, consultants
attended such deliveries. But the
prerequisites for operative vaginal delivery set out in the textbooks which
were current in 1996 (see paragraph 26 above) were essentially the same as
those set out in the RCOG guidelines.
None of the factors on which Professor Cameron relied was a contra-indicator
of a trial of forceps. She opined that,
provided an obstetrician had the required experience, which Dr Maziah had, the
observations in Mrs Dineley's case, which met the Table 3 criteria, made a
trial of forceps in the operating theatre the appropriate form of
treatment. She would not have criticised
as negligent an obstetrician who proceeded immediately to a caesarean section,
but pointed out that that practice would deprive many women of the opportunity
of a safe vaginal delivery.
[30] Professor Murphy stated that a rotational forceps delivery and
a caesarean section posed different risks to the mother and child but that
research showed that there was no clear choice in terms of outcome. A rotational forceps delivery exposed the
baby to the risk of trauma, bruising, abrasions and lacerations. Occasionally damage might result from
compression of the baby's facial nerve by the forceps. An extremely rare complication was a cerebral
haemorrhage. Sometimes babies suffered
asphyxiation, but that might be the result of a prior bradycardia rather than
the instrumental delivery itself. There
was the danger of a failure to deliver by operative vaginal methods which would
necessitate an emergency caesarean section.
But medical research suggested that, if the attempt at forceps delivery
were conducted in the operating theatre with support on hand to perform an
immediate caesarean section, there was no material difference in outcome for a
baby from a caesarean section after an unsuccessful attempt at forceps delivery
on the one hand and from an immediate caesarean section on the other. For the mother, the risks of forceps delivery
were the tearing of her cervix, vulva and vagina and the resulting risk of
haemorrhage.
[31] A caesarean section when the mother's cervix was at full dilatation
also posed considerable risks to the mother.
Her uterus would be soft and swollen from effort in labour and it would
be more difficult to identify the lower segment of the uterus where one could
enter safely. There were risks of extensive
tearing when delivering the baby, whose head would be in the mother's
pelvis. This could result in heavy blood
loss and repairs which left scars. Such
scars created a risk of future problems, for example where in a later pregnancy
the placenta implanted into a scar. That which was a life-threatening
problem for a mother. There was a high
risk of uterine rupture. Research also
suggested an enhanced risk of unexplained stillbirths. There was also evidence of some women finding
it difficult to become pregnant again.
[32] Professor Murphy suggested that the choice between a trial of
forceps and an immediate caesarean section was a question of clinical judgement
which involved the balancing of risks of both maternal and neonatal
morbidity. She would have opted for the
trial of forceps and would have expected obstetricians in her unit who had the
necessary experience to do so as well.
[33] Professor Murphy did not agree with Professor Cameron's
criticism of Dr Maziah for lifting the baby's head in the process of
rotation, provided that Dr Maziah had not lifted the head so that it was
more than two-fifths palpable on abdominal examination. It was common practice for obstetricians to
move a baby's head slightly upwards when performing a rotation in order to disimpact
it. She described the exercise as a
subtle, gentle movement which might raise the head by 1 centimetre or at
most by 2 centimetres, for example where the baby's head was below the ischial
spines and a one centimetre movement was not sufficient to achieve the
rotation. Having heard the relevant part
of Dr Maziah's evidence, Professor Murphy had formed the view that what she had
done was the small, subtle movement in accordance with common practice. She did
not interpret Dr Maziah's use of the term "disengaged" in her operation notes
to mean that she had carried out the hazardous and unacceptable manoeuvre of
lifting the head above the brim of the pelvis.
She interpreted the note as Dr Maziah using the word "disengage" loosely
to mean "disimpact", explaining that such loose usage was not uncommon among
obstetricians. Where the baby's head
remained no more than two-fifths palpable, it remained engaged in the mother's
pelvis and there would be a very low risk of a cord prolapse.
[34] Accordingly, on both of the grounds advanced by the pursuer,
Professor Murphy considered that Dr Maziah had not failed to show the standard
of care required of her by law but had acted in accordance with accepted
obstetric practice.
Discussion
[35] There are, as I have said, two separate allegations of
negligence. The first in short is that Dr Maziah was negligent in proceeding to
a trial of forceps in the circumstances of Mrs Dineley's case. The second is that Dr Maziah was negligent in
lifting the baby's head too far when attempting to rotate her head. The first allegation has given rise to a
difference of expert medical opinion.
The second allegation is essentially a question of fact and there was no
material difference in expert opinion as to acceptable practice. I have already dealt with the second
allegation in my findings in paragraphs 15 to 21 above. I turn therefore to the first allegation.
[36] Parties were agreed as to the approach of the law where there
was conflicting expert testimony on what was acceptable medical practice. I was referred to the leading cases of Hunter v Hanley 1950 SC 200, Bolam v Friern Hospital Management Committee [1957]
2 All ER 118, Maynard v West Midlands Regional Health Authority [1984]
1 WLR 634 and Bolitho v City and Hackney Health Authority [1998] AC 232. I was also referred to Lord
Reed's opinion in McConnell v Ayrshire and Arran Health Board 14 February 2001 (unreported) and to
my opinions in Honisz v Lothian Health Board [2006] CSOH 24 and Scott v Lothian University Hospitals NHS Trust [2006] CSOH 92. In relation to the way in which the court
should assess the evidence of expert witnesses I was referred to the judgment
of Stuart Smith LJ in Loveday v Renton [1989] 1 Med LR 117 at 125.
[37] As parties had agreed that my opinion in Honisz was an accurate summary of the relevant law where there was
a conflict between experts on acceptable medical practice, I refer to 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."
[38] In McConnell (at
paragraph 29) Lord Reed similarly stated that where there were conflicting
bodies of evidence from credible and reliable experts of appropriate
professional standing the pursuer could succeed "only if the opinion supportive
of the treatment [could] be demonstrated to be untenable, for example because
it [was] based on a mistaken or incomplete understanding of the relevant facts
or [had] no logical basis".
[39] Stuart Smith LJ in Loveday
set out (at p.125) the following approach to the evidence of expert
witnesses (in the context of a dispute about causation):
"The mere
expression of opinion or belief by a witness, however eminent, ... cannot
suffice. The court has to evaluate the
witness and the soundness of his opinion.
Most importantly this involves an examination of the reasons given for
his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to
attach to a witness's opinion by examining the internal consistency and logic
of his evidence; the care with which he has considered the subject and
presented his evidence; his precision and accuracy of thought as demonstrated
by his answers; how he responds to a searching and informed cross-examination
and in particular the extent to which a witness faces up to and accepts the
logic of a proposition put in cross-examination or is prepared to concede
points that are seen to be correct; the extent to which a witness has conceived
an opinion and is reluctant to re-examine it in the light of later evidence, or
demonstrates a flexibility of mind which may involve changing or modifying
opinions previously held; whether or not a witness is biased or lacks
independence."
Stuart Smith LJ went on to say that
the demeanour of a witness in the witness- box could be important when the
court was evaluating expert evidence, particularly if a witness had been
criticised for bias or lack of independence.
[40] Thus, using the forensic tools described by Stuart Smith LJ and
having regard to the evidence as a whole, the court has to assess at least
three things where there is conflicting expert evidence on the propriety of a
course of action adopted by a medical practitioner. First, the judge must consider whether an
expert has reached his or her view on a mistaken or incomplete understanding of
the relevant facts of the particular case.
Secondly, the judge must examine whether there has been a proper
assessment of the risks and benefits of the course of action which was adopted
compared with another course of action advocated by a pursuer. Thirdly, and more generally, the court must
satisfy itself whether or not there is a logical basis for the opinion
supporting the course of action which was adopted.
[41] In this case Mr Campbell for the pursuer concentrated his
criticism of the evidence of Professor Murphy on the first of these three
issues. He submitted that she had failed
to pay sufficient attention to the facts of the particular case and had erred
in treating conformity with the minimum requirements of the RCOG guidelines as
sufficient to justify the course of action which Dr Maziah adopted. He also submitted that she had looked at each
of the requirements of the RCOG guidelines individually, as if ticking boxes,
and had failed take account of or give full weight to the whole picture based
on the facts revealed in the medical and nursing notes. In so doing, she had not approached the
matter as a clinician would. He
suggested that she had adopted this approach in her report and that the court
should be slow to accept her oral evidence that she had taken account of all
the circumstances. Finally he appeared
to address the third of the issues referred to in the preceding paragraph,
submitting that Professor Murphy's opinion was not logically grounded in the
light of all the evidence.
[42] I am not persuaded that there is substance in those
criticisms. Professor Murphy in her
report set out the history of Mrs Dineley's labour in detail and recorded four
of the six factors upon which Professor Cameron relied for his clinical
judgement and his opinion as to the propriety of attempting a rotational
forceps delivery. Professor Murphy
did not refer in terms to the good progress of labour during the first stage,
but it is clear from her review of obstetric management in part 4 of her report
that she was aware of the events in first stage which she described as
acceptable progress. The one factor, which Professor Cameron
emphasised, to which Professor Murphy did not refer was the prolonged second
stage of labour in this case. In her
report Professor Murphy treated the onset of the second stage as having
occurred at 0045 when Mrs Dunn recorded the existence of full dilatation of the cervix on a vaginal
examination. Professor Murphy noted in
her report that technically this was the first confirmation of the onset of the
second stage. On cross-examination
Professor Murphy accepted that it was more likely than not that the second
stage commenced at about 23.30 hours on 22 February 1996 or shortly
afterwards. I have accepted this
contention in paragraph 6 above.
Professor Murphy explained, and I accept her explanation, that it was
and is normal practice to time the second stage from the vaginal examination
which confirmed full dilatation. I also
accept the evidence of both Professor Cameron and Professor Murphy that it is
an accepted practice in obstetrics to treat a period of about two hours in
second stage as the period which a primagravida may be left to achieve
spontaneous delivery before those charged with her care should be considering
whether to arrange an assisted delivery of the baby. This practice is referred to in Table 2 of
the RCOG guidelines. Professor Murphy
explained that the suggested period of about two hours served to give the
mother a sufficient opportunity to deliver the baby and also recognised that a
prolonged period of active pushing to deliver a baby could exhaust the
mother. The principal concern was
maternal morbidity but a mother's exhaustion could adversely affect her ability
to push during an assisted vaginal delivery.
[43] In this case active pushing appears to have begun at about 0100
hours on 23 February and there
was no evidence of any foetal distress before the start of the attempted
rotational forceps delivery, either in the form of meconium staining or an
irregular cardiotocograph trace. Absent
such distress, I consider that the relevance of the prolonged second stage in
this case is principally that the baby's head did not descend during this
period. The issue therefore is whether
the prolonged period of the arrested descent was a reliable indicator that the
cause of the arrest was significant cephalo-pelvic disproportion and thus was a
clear warning against attempting a rotational forceps delivery. For the reasons set out below I am not
persuaded that it was either by itself or, as Mr Campbell emphasised, when
taken in combination with the other factors on which Professor Cameron relied
for his opinion.
[44] It is clear from the terms of Professor Murphy's report that
she took into account the other factors upon which Professor Cameron
relied. She also considered the
existence of moderate caput and the absence of moulding, seeing the latter as
re-assuring. I am satisfied that
Professor Murphy took account of the particular circumstances of the pursuer's
case and did not, as was suggested, apply the guidelines in a mechanistic way
in reaching her opinion in this case. It
is clear that circumstances may arise in an individual case which militate
against an attempt at rotational forceps delivery where the prerequisites in
the RCOG guidelines are in place. For
example if there were evidence of significant foetal compromise which
necessitated immediate delivery by caesarean section, it would be inappropriate
to risk further delay by attempting a rotational forceps delivery. But I am not persuaded that such
circumstances existed in this case.
Professor Cameron cited the six factors on which he relied to support
his professional judgement that the attempt at rotational forceps delivery was
likely to fail and that the only proper course was to proceed immediately to
caesarean section. Professor Murphy did
not reach the same conclusion and explained that she considered that the
factors were consistent with a mal-position of the baby's head which could be
rectified by the use of rotational forceps.
As I recorded in paragraph 27 above, she would have been confident of
success, but for the benefit of hindsight.
[45] It is important, in my opinion, to see the RCOG guidelines in
the context of the available medical research on the balance of risks posed by
attempting a rotational forceps delivery and a caesarean section. The RCOG guidelines stated (in paragraph 5.2)
that there was little evidence of increased maternal or neonatal morbidity
following failed operative vaginal delivery compared with immediate caesarean
section where immediate recourse to caesarean section was available. The source of this view was an article by
Revah, Ezra, Farine and Ritchie, "Failed trial of vacuum or forceps - maternal
and fetal outcome" (Am J Obstet Gynecol 1997; 176: 200-4). In an article in the Lancet in 2001 (Vol 358:
1203-1207) Professor Murphy and others reported the results of a cohort study,
examining maternal and neonatal morbidity associated with vaginal instrumental
delivery in theatre and caesarean section,, at full
dilatation. The study so far as relevant
to this issue showed that a low umbilical artery pH (a result of the baby
suffering from a degree of hypoxia) was more frequently recorded after failed
vaginal instrumental delivery but there was no increase in the number of babies
admitted to intensive care in a Special Care Baby Unit. Thus it appeared that the outcome of a
caesarean section after a failed attempt at instrumental vaginal delivery was
not significantly worse in terms of a baby's morbidity than the outcome when
the obstetrician proceeded immediately to caesarean section. The stated interpretation of the article was
that the data lent support to an aim to deliver women vaginally, unless there
were clear signs of cephalo-pelvic disproportion, and underlined the importance
of skilled obstetricians supervising complex operative deliveries.
[46] Amongst the literature which was current in 1996, Turnbull's Obstetrics (2nd
ed. 1995) at p.706 reached a similar view, without the benefit of the later
research, stating:
"A trial of
forceps which is not successful might ... be regarded as failed forceps but if
the trial is conducted according to defined rules - by a skilled operator, in
the operating theatre, with adequate anaesthesia, and with the team and
equipment ready for immediate caesarean section - there should be no
significantly increased risk of morbidity".
[47] I conclude that Professor Murphy did not have a mistaken or
incomplete understanding of the relevant circumstances and that in reaching her
opinion she made a proper assessment of the risks and benefits of an attempt at
rotational forceps delivery and immediate recourse to caesarean section. I am also satisfied that she was entitled to
take the view, without the benefit of hindsight, that the arrest in second
stage was probably explained by a mal-position.
Having regard to that and to the research which suggests that a trial of
forceps in the operating theatre does not give rise to a significantly higher
risk of morbidity to the baby than immediate recourse to caesarean section,
there appears to be a clear logical basis for her view and for the advice
contained in the RCOG guidelines.
Accordingly, I conclude that, on this issue, the difference in opinion
between her and Professor Cameron in relation to the care of the pursuer and
her baby is a matter of differing professional clinical judgement in relation
to which the court has no role.
[48] I observe for completeness that there was some evidence that
other distinguished obstetricians shared Professor Murphy's opinion that it was
appropriate for Dr Maziah to have attempted the rotational forceps
delivery. Her consultant, Dr Brown,
expressed that view in his evidence. Dr
Hilary Macpherson,
who presided over the peri-natal review meeting in the Eastern
General Hospital
at which the treatment of the pursuer and Jessica was discussed, sent the
pursuer's general medical practitioner a letter dated 17 April 1996 which supported Dr Maziah's
decision. I was also referred briefly to
two expert reports from Dr Alastair Miller dated 11 April 1998, and Dr Peter
Buchan dated 1 June 2005 which suggested that the attempt at rotational forceps
delivery had been appropriate treatment. None of those experienced
obstetricians, other than Dr Brown (who gave evidence as a witness to fact),
gave evidence or were subjected to cross examination. I have therefore concentrated on the evidence
of Professor Cameron and Professor Murphy in determining the pursuer's first case.
Conclusion
[49] While, sadly, Jessica suffered catastrophic injury shortly
before she was born, I am not satisfied persuaded that Dr Maziah was negligent in her
care of Mrs Dineley and Jessica. I
therefore sustain the third plea-in-law for the defenders and grant decree of
absolvitor.
