Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 132
A664/06	OPINION OF LADY CLARK OF CALTON in causa MRS KT or K (as guardian of CK) Pursuer; against LOTHIAN NHS BOARD Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hanretty; McNaughton; Digby Brown SSC

Defenders: Ferguson; Stevenson; R F Macdonald, solicitor

25 September 2009

Summary

[1] The pursuer is the mother of CK who was born on 11 May 1998. The pursuer sues as guardian of CK in respect of alleged negligence of anaesthetic and obstetric staff for whose acts and omissions in the course of employment, the defenders are averred to be liable. By interlocutor dated 11 October 2007 the proof was restricted to liability and causation. The issues in dispute were firstly, whether there had been professional negligence on the part of Dr Cameron (the obstetrician) and/or Dr Jones (the anaesthetist). Secondly, whether said negligence had caused or contributed to the medical condition and disabilities of CK and, if so, to what extent.

The pleadings in relation to fault

[2] The final form of the pleadings are contained in the amended Closed Record, 18 of process. I set out those pleadings in some detail as the pleadings are designed to give fair notice and focus the issues in dispute. The pleadings shaped the way in which the case was presented. Article 2 of Condescendence sets out the averments of fact. In summary the pursuer was admitted in labour at the Simpson Memorial Maternity Pavilion on 11 May 1998. Her labour was monitored in various ways by machine and by midwifery staff. It is averred by the pursuer that:

"At or about 1105 hours the pursuer felt like pushing. The foetal heart rate was noted to be 100 bpm to 110 bpm and by 1110 hours was at 90 bpm. The foetal heart rate remained at or below this rate until 1124 hours, when the CTG was discontinued and the pursuer was transferred to theatre. The pursuer was placed on her left side and then on her right side. The foetal heart rate failed to improve. Medical staff were called at 1112 hours. Spontaneous rupture of the membranes occurred at 1114 hours. A vaginal examination was carried out at 1115. The cervix was fully dilated and the head was above the ischial spines. A further examination was carried out at 1118 hours. The cervix was fully dilated, the position was occipito-posterior and the station 1 cm above the ischial spines. The foetal heart rate had been below 100 bpm for 8 minutes. It was falling rather than recovering. The pursuer was encouraged to push but there was no descent of the head. A decision was made to proceed to emergency caesarean section at approximately 1120 hours. The defenders are called upon to aver whether the obstetricians alerted the theatre team and the anaesthetist that the pursuer was being transferred to theatre. The defenders are called upon to aver the time at which the obstetricians did so. The pursuer was transferred to theatre at 1125 hours. At 1125 the foetal heart rate was at or below 90 bpm. By the time the pursuer arrived in theatre there had been a severe foetal bradycardia for at least 15 minutes. All theatre and medical staff were or ought to have been aware of the data on duration of severe profound hypoxia needed to cause irreversible damage to the baby. The situation was one of extreme urgency. All theatre and medical staff were or ought to have been aware that the outcome for the baby would be profoundly altered by a five to ten minute delay. In theatre the pursuer was attended upon by Dr Karen Jones, a senior experienced trainee anaesthetist. She decided to attempt spinal anaesthesia. Spinal anaesthesia was attempted between at or about 1125 and 1140 hours. The foetal heart rate was recorded at 1137 hours at 90 and 95 bpm. At or about 1140 hours a decision was made to proceed to general anaesthesia."

[3] Against the factual background averred in Article 2 of Condescendence, the pursuer avers:

"it was the duty of the obstetrician to advise the anaesthetist of the extreme urgency of the situation upon the pursuer's arrival in theatre at or around 1126 hours. It was the duty of the obstetrician to advise the anaesthetist in theatre that all steps had to be taken to expedite delivery of the baby. No reasonably competent obstetrician acting with ordinary care would have failed to advise the anaesthetist accordingly. Further, it was the duty of the anaesthetist to take all steps to expedite delivery. In doing so, it was the duty of the anaesthetist to have prepared both spinal and general anaesthesia prior to the pursuer's arrival in theatre. It was the duty of the anaesthetist to assess the comparative risks and benefits of alternative forms of anaesthesia and to reach a reasonable conclusion. It was the duty of the anaesthetist to take into account the very grave condition of the foetus as reported to him or her and to have proceeded directly to administer general anaesthesia. Esto the anaesthetist considered it to be a reasonable conclusion to attempt regional anaesthesia, it was the duty of the anaesthetist to make a single quick attempt at spinal anaesthesia before proceeding to general anaesthesia. Had the anaesthetic and obstetric staff complied with the duties incumbent upon them the baby would have been delivered by 1134 hours."

[4] In answer 2 the defenders admit many of the averments about the history and following a general denial aver certain facts. In particular it is averred:

"At or about 11.18 hours the Registrar, Dr Sharon Cameron attended. Dr Cameron performed a further vaginal examination. She found the cervix to be fully dilated with the head at 1 cm above station. The foetal head position was left occipito-posterior. The pursuer was still pushing with contractions. However there was no sign of the foetal vertex. The immediate plan was for an attempt at forceps delivery in the pursuer's room. The use of rotational forceps required the attendance of a Consultant. As no advance of the head was seen with pushing it was decided to transfer the pursuer to theatre for trial by forceps or Caesarean section. Dr Cameron took steps to alert theatre staff. She spoke to the Senior Registrar, Dr Holmes. He was unable to attend the theatre. Dr Holmes informed Dr Cameron that a Consultant, Dr Tay, was in the theatre adjacent to the theatre Dr Cameron intended to use. Dr Tay was engaged in an emergency Caesarean section there. Midwife McWalter transferred the pursuer to theatre at or about 11.25 hours. Dr Tay was asked to attend. In theatre Dr Jones attempted spinal anaesthesia but was unsuccessful. At or about 11.40 the on call consultant, Dr Tay attended from the adjacent surgical theatre. Dr Tay found the pursuer's cervix to be fully dilated with the vertex still at 1 cm above the station and in the OP position. Dr Tay decided the pursuer should be delivered by Caesarean section. General anaesthetic was administered. K was delivered in a poor condition at or about 11.50. The umbilical cord was found to be tightly around K's neck and also over her shoulder. In the course of the pursuer's labour the first indication of significant foetal distress began around 11.05. An earlier decision to resort to Caesarean section would not have been justified. It was reasonable for Dr Jones to attempt spinal anaesthesia in the circumstances. Spinal anaesthesia for emergency Caesarean section is commonplace particularly, as in the pursuer's case, if the mother has eaten within the last 4-6 hours. Spinal anaesthetic is associated in the circumstances with a much lower maternal risk than is general anaesthetic. Dr Jones had a brief attempt at spinal insertion, recognised it was going to prove difficult and decided to convert to general anaesthesia."

Against the factual background admitted and averred by the defenders, it is averred that the medical and midwifery staff complied with all duties properly incumbent upon them.

The pleadings in relation to causation

[5] It is not in dispute that the child CK has cerebral palsy, is significantly disabled, is microcephalic, exhibits the features of dystonic tetraplegic cerebral palsy and will have severe neurological impairment for the whole of her life. Both parties accept that her condition is indicative of hypoxic ischaemic encephalopathy. The pursuer avers that it was the failure of duties by the anaesthetic and obstetric staff which caused or contributed to the neurological disability of CK. The defenders aver at page 17B-D that the child's condition indicates

"a short term hypoxic episode during the late stages of labour. If the child had been born between 11.34 and 11.38 instead of at 11.50 (as the pursuer contends) she would still have sustained significant structural brain damage. While her intellectual function and mobility would have been better than they are, they would not have been normal. She would have had bulbar involvement with consequent feeding and speech difficulties."

The Evidence

[6] A number of factual witnesses about the events on 11 May 1998 were led by counsel for the pursuer. The witnesses to fact were led in this order:

(1) the pursuer;

(2) Mr K, the pursuer's husband;

(3) Alison McWalter, one of the midwives responsible for the care of the pursuer, who attended her for most of the period after admission to the labour suite. Her qualifications and experience are recorded in paragraph 9 of the Joint Minute (19 of process);

(4) Dr Sharon Cameron, a second year specialist obstetric registrar who attended the pursuer shortly after 11 am and was involved in her care thereafter, including the delivery of CK by caesarean section. Her qualifications and experience are set out in her CV 7/10 of process;

(5) Dr Karin Jones who gave evidence by video link from Australia. She was an anaesthetic registrar in her first month of a twelve month contract at the hospital, who attended the pursuer after her transfer from the labour ward to theatre up to the period of delivery of CK. Her qualifications and experience are set out in her CV 7/5 of process;

(6) Dr John McClure, consultant anaesthetist who was present from sometime after 11.40 until shortly after the delivery of CK. His medical qualifications and experience are recorded in paragraph 10 of the Joint Minute 19 of process;

(7) Dr Clement Tay, consultant in obstetrics and gynaecology who was present from about 11.38 until shortly after the delivery of CK. His qualifications and experience are set out in paragraph 11 of the Joint Minute 19 of process

[7] Counsel for the pursuer also led a number of expert witnesses in this order:

(1) Mr S.A Walkinshaw, consultant in maternal and foetal medicine, Liverpool Womens Hospital who gave evidence based on his CV 6/4 of process and his report 6/5 of process;

(2) Dr Pieter Pretorius, consultant neuro radiologist who gave evidence based on his CV 6/13 of process and his report, 6/11 of process;

(3) Dr Rosenbloom, consultant paediatric neurologist who examined the child CK in 2004 and who gave evidence based on his CV 6/8 of process and reports 6/9 and 6/10 of process;

(4) Dr Bogod, consultant anaesthetist who gave evidence based on his CV 6/6 of process and his report 6/7 of process.

[8] Counsel for the defenders led two expert witnesses:

(1) Dr Rennie who gave evidence based on her CV 7/3 of process and her report 7/12 of process. Her evidence was interposed of consent during the pursuer's proof after the evidence of Dr Rosenbloom;

(2) Dr Frame who gave evidence based on his CV 7/4 of process. A report 7/7 of process was lodged in process but this witness gave oral evidence without direct reference to the report, except page 12 of the report which was referred to in cross examination.

[9] Information about the qualifications and experience of witnesses was agreed by the parties in Joint Minute 19 of process.

Submissions by counsel for the pursuer

[10] I was invited to sustain the first plea in law for the pursuer, repel the fourth plea in law for the defenders and to remit the cause for a proof before answer on quantum.

[11] Counsel for the pursuer produced an outline submission (20 of process) which formed the basis of his oral submissions about the facts and the approach which should be adopted to the evidence. His oral submissions were extensive and detailed and I provide here a short summary.

[12] Counsel dealt firstly with the factual witnesses. I was not invited to find that any of the witnesses were not credible. Criticisms were made of the reliability of Dr Cameron, Dr Jones and Dr McClure. It was submitted that Dr Cameron's first involvement was some time before 11.18 when she carried out a vaginal examination of the pursuer. Dr Cameron then left the pursuer to attend another delivery which involved an emergency in relation to foetal bradycardia. Dr Cameron gave evidence to the effect that when she returned to the pursuer, she appreciated the urgency of the situation. Her opinion was that the baby needed to be delivered as soon as possible. She spoke to Dr Jones explaining the urgency and that there was to be a "trial of forceps". Counsel criticised the evidence of this witness as giving "mixed messages to the anaesthetist". He submitted that as a result she did not properly convey to the anaesthetist, Dr Jones, the nature of the emergency and the need for urgent anaesthesia to expedite delivery.

[13] Dr Jones gave evidence by video link. Counsel submitted that made her more difficult to assess as a witness. Counsel further submitted that she could not be treated as reliable as "she does not remember anything". She had given her evidence having had access to the expert reports of Dr Frame and Dr Bogod. He criticised the adequacy of her notes. Because of her lack of recollection and poor notes, all that is known is that sometime between 11.26 to 11.40 a spinal anaesthesia was attempted and failed. Counsel submitted that there are three possibilities, firstly, that Dr Jones did not start the spinal anaesthesia timeously; secondly, that she started timeously and took too long; and thirdly, that as she gives no clear explanation this suggests that there were two attempts at spinal anaesthesia and not a single brief attempt as averred by the defenders. The third possibility is supported by events described by Mr K in his evidence. At best the evidence of Dr Jones was a reconstruction of her understanding from inadequate notes.

[14] Counsel submitted that Dr McClure had no clear recollection of events and relied upon the notes. He arrived in theatre at 11.40 or 11.45. It is not clear at what stage of events he arrived. His evidence does not particularly assist.

[15] Counsel was not critical of Dr Tay who he accepted gave clear evidence. Dr Tay stated that when he examined the pursuer she was not in the lithotomy position but dorsal. Counsel submitted this might have a marginal effect on timing as the lithotomy position takes slightly longer to arrange both before and after examination.

[16] Counsel then addressed the expert evidence. In relation to Mr Walkinshaw, I was invited to accept his evidence which was unchallenged. Counsel submitted that Mr Walkinshaw had some expert knowledge about anaesthesia in obstetric cases. From his own discipline of obstetrics, Mr Walkinshaw gave evidence about the development of foetal bradycardia and the interpretation of the CTG. He identified severe bradycardia from 11.13. If the pursuer had been admitted to theatre at 11.26, the baby would have been delivered on the estimated timings of Dr Walkinshaw by general anaesthetic at 11.31/11.32. That was his preferred option. Had a brief attempt at spinal anaesthetic been attempted and failed, delivery following general anaesthetic would have been 11.34/11.35. Mr Walkinshaw gave evidence to the effect that delivery under general anaesthetic would take about 10 minutes from reaching theatre. If a spinal anaesthetic was also attempted that would add about 5 minutes. Counsel stated that this witness had not been cross examined and that his evidence was therefore unchallenged, including the time estimates which he had given.

[17] Referring to the evidence of Dr Pretorius, counsel submitted that the MRI scan results provided uncontroverted evidence of lack of damage to the hippocampi. Counsel also submitted that Dr Pretorius stated that no damage to the lateral genicular and superior vermis was noted. Counsel submitted that there were some brain structures not damaged despite the lengthy period of hypoxia which CK had suffered. This supports "a process of damage" not "an event". The evidence pointed to the conclusion that some structures are damaged first. The earlier the delivery, the more likely brain structures would be undamaged and the outcome for CK would have been better.

[18] In view of the conflicting evidence of Dr Rosenbloom and Dr Rennie about causation and timings, counsel made detailed submissions about why the evidence of Dr Rosenbloom should be preferred in relation to the critical issues. Counsel submitted that Dr Rosenbloom was a world renowned expert with expertise as a paediatric neurologist. Dr Rennie's expertise was developed in the neo-natal stage. Dr Rosenbloom had the advantage that he had examined CK and had the opportunity to assess her clinical function. Dr Rennie accepted that her analysis depends upon "intuition, experience and a hard knowledge base". Dr Rosenbloom accepted that his theory is a new theory and that it is not "hard science". He had however analysed all the issues and given reasons for his conclusion. They both agreed that CK is an unusual case.

[19] Counsel provided an analysis of the effects of the two different theories on timing and causation which I tabulate below. Both experts agreed that they were only able and preferred to express opinions in relation to the situation at five minute intervals.

Dr Rosenbloom	Dr Rennie
11.35 No damage if delivery	11.35 Mild damage
11.40 Mild damage	11.40 Moderate damage
11.45 Moderate damage	11.45 Severe damage as suffered by CK
11.50 Actual damage which equals the damage suffered by CK	11.50 Substantially the same damage as at 11.45

[20] Counsel submitted that Dr Rennie's analysis was based on pure arithmetic. He accepted that she was very well qualified and that her opinion deserved weight. He accepted that there was a good deal of common ground between the two experts. He was not criticising the use of the 10 minute model in appropriate cases, but this was an exceptional case as both experts agreed. Dr Rennie attached some importance to damage to the hippocampi but that was not established in the present case. She did not provide any rationale for the adoption of the purely arithmetic model which extrapolates from a 10:15 ratio. That ratio is found in the animal experiments but it is not based on a clinical analysis and consideration of the nature of the ongoing damage which occurred in the present case.

[21] In relation to Dr Bogod, counsel submitted that his evidence was to the effect that if the pursuer had been sent at 11.26 for general anaesthetic, she could have been ready for surgery by 11.31. That was the method of anaesthesia Dr Bogod supported. He accepted however that a small body of acceptable professional opinion would support a quick attempt at spinal anaesthesia. His opinion was that in these circumstances the pursuer would have been ready for surgery at 11.34.

[22] In the course of discussion of Dr Bogod's evidence, counsel for the pursuer accepted that the main case pled against the anaesthetist Dr Jones did not have support in Dr Bogod's evidence. The pursuer could only rely therefore on the esto case to the effect that any attempt at spinal anaesthesia should be brief and if spinal anaesthesia failed it was necessary to proceed to general anaesthesia. Counsel stated that on this basis the earliest time of non-negligent delivery would be at 11.40. He accepted that obviously has a bearing on the evidence about causation and damage. I was asked to accept Dr Bogod's evidence and conclude that delivery at 11.40 should have occurred.

[23] In relation to the evidence of Dr Frame, counsel submitted that both Dr Frame and Dr McClure gave support for a crash Caesarean section by general anaesthetic in the circumstances of this case. Nevertheless counsel for the pursuer had to accept that the pursuer's expert witness, Dr Bogod, gave support for a short trial of spinal anaesthesia. Counsel for the pursuer submitted that Dr Frame appeared to give his evidence on the basis that there was no great urgency. Counsel submitted that was a wrong interpretation of the facts in this case. Dr Frame was interpreting the notes and in particular the obstetric view that there should be "a trial by forceps" as indicating that the situation was not so urgent as to require a "crash section". Dr Frame was influenced by the decision to wait for Dr Tay to carry out further examination. Counsel submitted that Dr Frame's evidence was based on a very substantial misunderstanding of the facts.

[24] Counsel submitted that the pursuer's case against Dr Jones is that Dr Jones attempted two spinal anaesthesia procedures when she should not have. That is based on the evidence of Mr K. Mr K described two attempts and remembered the anaesthetist talking about failure and trying again. The alternative case for the pursuer is that Dr Jones should have done a quick spinal anaesthetic procedure timeously and then without delay proceed to a general anaesthetic. Counsel referred in particular to the entry in 6/2 of process at 11.37. That refers to an attempted spinal. That entry is 11 minutes after the pursuer reached the theatre. He also referred to the evidence of Dr Jones who could not explain the timings.

[25] Counsel made reference to Main v McAndrew Wormald Ltd 1988 SLT 141; Hunter v Hanley 1955 SC 200; Greenhorn v South Glasgow University Hospital NHS Trust 104 BMLR 50 in particular paragraph 108 in which Lord Uist summarises the law in relation to the well known dicta in Hunter v Hanley about the tests for medical negligence and the proper approach of the Court where there are competing bodies of medical opinion in relation to matters of medical or surgical practice. Counsel submitted that in this case there were no competing bodies of medical opinion about obstetric practice.

[26] Against that legal background, counsel submitted that the pursuer has established a direct case of fault against the anaesthetist Dr Jones. She had failed to proceed timeously to a general anaesthetic. She had taken too long and attempted the spinal anaesthetic twice.

[27] Counsel then developed a different submission. He submitted that this was a case in which the pursuer had turned up at the hospital with a healthy foetus. At 11.50 she was delivered with a brain damaged baby. If delivered earlier, the pursuer would have delivered a much less damaged baby. Counsel submitted that this could be considered as a res ipsa loquitur case. He referred to Jackson and Powell Professional Liability 6^th Edition (2007) paragraphs 13-039 to 13-04. He relied on the passage at paragraph 13/039

"Clinical negligence is the main area of professional negligence in which res ipsa loquitur assumes importance. The patient's position is such that he may very well not know, and not be able to establish, what treatment he received and how his injuries were caused. Where he is able to invoke the maxim res ipsa loquitur, the defendant cannot escape liability unless he calls evidence to rebuke the inference of negligence which arises from the injury itself and its surrounding circumstances"

Counsel referred to Cassidy v Ministry of Health 1951 2K.B.343 at page 365 and Ratcliffe v The Plymouth and Torbay Health Authority 1998 PIQR, 170. In Ratcliffe, Brooke L.J reviewed of the authorities in relation to res ipsa loquitur at pages 178-182. At page 184 he considered the relevance in relation to medical negligence cases of res ipsa loquitur. Counsel submitted that in the present case the pursuer offers to prove and has proved that the pursuer was in labour and that an emergency has arisen. Such emergencies have a recognised risk of damage and death which is avoidable by application of proper practice in accordance with the principles discussed in Hunter v Hanley. In the present case the recognised type of damage to the child was not avoided. It is for the defenders to explain the reasons the damage was non‑negligent, if they can. In this case the defenders have not rebutted the inference of negligence. In these circumstances, I was invited to be satisfied on the facts proved that both liability and causation were established.

Submissions by counsel for the defenders

[28] Counsel for the defenders provided an outline of some 38 pages plus a bound volume of cases. These documents are all contained in 21 of process. The outline was in effect a written version of his oral submission to which he adhered with some amplification and emphasis. In these circumstances I provide only a brief outline of the submissions. Counsel invited me to sustain the defenders third and fourth pleas-in-law and assoilzie the defenders.

[29] Counsel prefaced his oral submissions by two points which he submitted undermined entirely the pursuer's case. Firstly, he submitted that there was no evidence on which to conclude that Dr Cameron was negligent on the limited grounds averred by the pursuer. The Hunter v Hanley test was never addressed in the evidence and in particular was not considered by the pursuer's expert, Mr Walkinshaw. Secondly, even if there was negligence on the part of Dr Jones, any delay by Dr Jones was not causative of any damage. In the absence of any ground of fault directed at the decision to involve Dr Tay in relation to a possible forceps delivery, the child CK would not have been delivered any earlier. Albeit there was delay by Dr Jones capable of causing the damage suffered by the child or some of it, it is not the consequence of any negligence for which the defenders are responsible.

[30] Counsel for the respondents addressed the ambit and implications of the pursuer's pleadings under reference to Morrison's Associated Companies Ltd v James Rome & Sons Ltd 1964 S.C. 160 at p. 182 and 190. He submitted that the present case was not based and pled as res ipsa loquitur. There was no notice of such a case. In any event the facts and circumstances do not give rise to res ipsa loquitur. The mere fact that there is a gap in the records of some 14 minutes does not form the basis of a res ipsa case particularly in circumstances where the treating doctors were known and had given evidence. The case of Cassidy and Greenhorn are distinguishable on their facts and circumstances.

[31] Counsel did not insist in his submission recorded at page 6 paragraph 3 as outlined.

[32] Counsel did not submit that any of the witnesses were not credible. He accepted that the witness had difficulties of recollection which was not surprising because of the passage of time.

[33] On pages 8 to 25 of the written submissions counsel set out his assessment and narrative about the facts.

[34] In paragraph 6 at page 25 of the written submissions, counsel returned to his opening submission and looked in detail at the role and implications of Dr Tay's involvement in the pursuer's care. Having analysed his understanding of the evidence, he submitted that the weight of evidence supports the finding that Dr Tay arrived at theatre between about 11.37 and 11.40. That Dr Tay carried out a vaginal examination and thereafter at about 11.41 decided that the pursuer should be delivered by caesarean section under general anaesthetic. The pursuer was anaesthetised and CK delivered at 11.50. Within the scope of the case as pled and developed in evidence, the pursuer avers a very limited basis of fault in relation to the management of the delivery by Dr Cameron. No allegations of fault are made in relation to Dr Tay's involvement. The reality of the factual situation is that Dr Tay was involved and properly involved in the case. That involvement alone explains why caesarean section did not commence until about 11.40/41. The attempt at spinal anaesthetic or delay because of spinal anaesthetic was not causative and did not add to any delay in relation to the administration of general anaesthetic for the caesarean section.

[35] Counsel then addressed the law in relation to the standard of care under reference to Veronica Dineley v Lothian Health Board (2007) CSOH 154 paragraphs 36-40. Against that legal background, counsel considered the expert evidence in relation to negligence.

[36] The only obstetric expert led for the pursuer was Mr Walkinshaw. Counsel submitted that the height of this expert's evidence was based on evidence about his own experience and expectation. At no point was Mr Walkinshaw asked to address the legal test for establishing negligence in the diagnosis or treatment on the part of a doctor. Counsel made reference to Phillips v Grampian Health Board (1991) 3 Med LR 16, pages 24, 27-28. He submitted that the well recognised test in Hunter v Hanley is not a mantra but the test must be accurately and properly understood by the expert and applied to the expert's understanding of the facts. If the facts are disputed, the disputed version of facts must also be put if the pursuer wishes to rely on the expert's evidence about practice. Counsel submitted that as this evidence did not form a foundation to support professional negligence on the part of Dr Cameron, he did not cross-examine this witness and he did not lead any expert obstetric evidence.

[37] Moving to a consideration of the case in relation to Dr Jones, counsel for the pursuer took as a starting point the evidence of Dr Bogod and the concession which he had made to the effect that if an anaesthetist was told that a baby was bradycardic and was for an immediate delivery as quickly as possible, most anaesthetists of ordinary competence exercising reasonable skill and care would proceed immediately to general anaesthetic but a minority of such anaesthetists would attempt spinal anaesthesia and would persist in their attempt for up to five minutes before converting to general anaesthesia if unsuccessful. Counsel submitted that Dr Frame supported the actions of Dr Jones. In Dr Frame's opinion, applying the Hunter v Hanley standard, an anaesthetist would not have proceeded to general anaesthesia until Dr Tay arrived and determined the mode of delivery. Although Dr Frame accepted that a single attempt at a spinal anaesthetic should have taken some 4-5 minutes in addition to the pre-anaesthetic assessment and examination, in the circumstances of the case, he did not criticise one or more attempts at spinal anaesthesia whether continuing or not until Dr Tay arrived.

[38] Counsel deals with causation at pages 33-36 of his submissions. He departed from the first paragraph. Counsel's submissions about timings based on the pursuer's analysis were as follows: arrival at theatre 11.26; pre-op assessment and examination 3-4 minutes; attempt at spinal 5 minutes; general examination by Dr Tay 2-3 minutes; delivery 9-10 minutes. He submitted that the evidence bore out an approximate delivery time of 11.48 not 11.40, even if the pursuer's case of negligence in relation to Dr Jones was well founded. Finally, counsel addressed differential outcomes on various hypothesis about the time of non-negligent delivery.

Discussion

[39] I do not understand there to be any particular dispute about the law which applied which is usefully summarised by Lord Uist in Greenhorn, paragraph 108. There was dispute in relation to the applicability of the maxim or principle of res ipsa loquitur to this case. It was not disputed that in certain limited situations, as discussed in Ratcliffe, res ipsa loquitur may have application in the case of medical negligence. I do not consider that there was any basis in the evidence to lead me to conclude that any witness was not credible. The witnesses, for a variety of reasons, plainly had difficulties of recollection. That is not surprising as the events in this case took place over 11 years before the proof. The timing of events was critical. In these circumstances the notes recording timing became critical. Even if the recollection of witnesses had been better, I consider it unlikely that they would have been able to remember, minute by minute, timings. The witnesses in this case were plainly dependent upon the notes for detailed timings. I was satisfied that with the assistance of such notes and records that existed, I was able to deduce from the evidence a reasonably detailed picture of events. I set that out in the subsequent paragraphs.

Hospital records and notes

[40] The most important hospital notes are to be found in 6/2 of process and 6/1/59-60 of process. It should be borne in mind in relation to the timings recorded that the notes were made by different people. The method of timing noted in the records was not standardised either in methodology or by reference to the same instrument. The entries are by reference to a time recorded in minutes. It is unlikely that every entry was directly related to the minute recorded and the event or record may have been seconds before or after the time noted. Some of the entries were written in retrospect as appears from the notes. I consider that the timings recorded cannot be regarded as completely consistent and accurate albeit that is the best information available.

[41] Although the factual witnesses have some memory of events, the records in this case also provide an important source of information about what happened. Unfortunately the records do not contain information which may be important and which one might expect to have had recorded. There is no ground of fault based on inadequate record keeping but there was criticism of the adequacy of the record keeping by Dr Jones. It was not submitted that inadequate record keeping or any gap in the records played any part in the resulting events.

[42] There is one entry in the records 6/2/34 of process which was altered by a scoring out deletion. Dr Cameron explained that this was an entry written after delivery of CK. She said that she did not alter this entry. The implications, if any, of this alteration were not revealed in the proof. It was not submitted that the records had been falsified.

[43] I found that the entries and notes made by Alison McWalter were particularly useful. Some or all of the timings in her retrospective note may have been noted on paper at the time then destroyed. In addition she also made some personal notes a few days after events. These notes are to be found in 7/8 of process.

[44] Although I have considered the case on the basis of the evidence of the timings and the submissions on behalf of both parties in relation to this, I wish to record that I consider there is some artificiality in this exercise which should not be overlooked. I have made reference to the difficulties which there are with the timings recorded. I consider that it is significant that none of the witnesses speaking to what was happening between 11.20 and 11.50 state that nothing was happening. The overall impression which I gained from the witnesses to fact, including the pursuer and Mr K, is that the medical and nursing staff were actively trying to deal with the situation as it developed and carrying out procedures. There does not appear to be any significant period when nothing was done or any significant period when activity stopped and the medical and nursing staff did nothing.

Events on the morning of 11 May 1998

The period up to 11.05 am

[45] This history was not in any significant dispute. One matter which was disputed was whether the pursuer ate breakfast. I deal with that in paragraph [52]. The pursuer is married to Mr K. She gave birth to her first child on 3 May 1990 with a normal delivery. Her estimated date of delivery in her second pregnancy was 16 May 1998. She had no significant problems during her second pregnancy. There were no particular problems anticipated with her health or the foetus. In the early hours of 11 May 1998, the pursuer believed labour had commenced. The pursuer and Mr K attended at hospital for a short period but her contractions subsided. They returned home. The hospital notes (6/2 of process, page 15) record a second attendance at hospital at 9.20 and it was noted that she was contracting every 4 to 5 minutes. The position of the head of the foetus was noted as "OP" (occipital-posterior). This is a potential problem for delivery. This position may change during labour but did not in this case. No other potential problems were noted. At 10.15 the pursuer was transferred to the labour suite where a CTG trace was commenced there at 10.20. A CTG trace records the foetal heart rate. For assessment purposes, a normal trace is regarded as a baseline between 110 to 160 beats per minute with "beat to beat" variability of 5 beats a minute. The pursuer was attended by midwife Alison McWalter. At 10.55 Alison McWalter left the pursuer to attend another patient. There were no significant concerns about the foetal heart rate up to that time. The midwife was called back by a doctor (not a witness) at about 11.05. The pursuer "felt like pushing".

The period 11.05 am to 11.25 am

[46] In this period there is a retrospective note by Alison McWalter. This records the foetal heart rate at 100 to 110 beats per minute falling to 90 beats per minute at 11.10am. Alison McWalter tried to change the position of the pursuer in case there was cord compression. This did not assist. There was spontaneous rupture of the membranes at 11.14. This was an unusually dramatic event but not in itself significant in relation to later problems. At 11.15 there was a vaginal examination by Alison McWalter (6/2 of process, page 20). The cervix was found to be fully dilated, the foetal head was above the ischial spines, no cord was felt. Dr Cameron attended at 11.16 and carried out a vaginal examination at 11.18. She recorded that the cervix was fully dilated, the position OP and the station 1 centimetre above the plain of the ischial spines. In evidence, she supplemented her note to the effect that she felt no cord. She regarded that as significant. If she had felt the cord, she would have proceeded to immediate caesarean section. Following a decision by Dr Cameron, which I discuss in more detail at paragraphs [54]-[60], arrangements were made to transfer the pursuer to theatre at about 11.25.

[47] It should be noted that there was some confusion in the evidence about what was meant by "theatre" in this case. The initial evidence proceeded on the basis that the transfer was directly into a theatre. During the evidence it became apparent that the hospital had what might be termed a theatre "block" of rooms which consisted of two separate operating theatres and an ante-room. This theatre block was located a short distance about 400 metres from the labour suite. The estimated transfer time from the labour suite was approximately 1 minute in cases of emergency. I did not consider that there was any serious dispute at the end of the evidence that the pursuer was initially placed in the ante-room of the two theatres and that is my conclusion. That is where the spinal anaesthetic was attempted. Thereafter she was transferred to the operating room which had not been in use by Doctors Tay and McClure. I do not consider this confusion is of any significance in the context of the case. The placing of the pursuer does have a very marginal impact on the timings as the pursuer would require to be moved from the ante-room into the operating theatre at the time of the caesarean section. As the word "theatre" was used by witnesses to refer to this arrangement, I use that terminology in the opinion.

The period 11.26 am - 11.40 am

[48] At about 11.26 in theatre, Dr Cameron had a discussion with Dr Jones. I deal with this in more detail in paragraph [61]. Dr Jones had a very limited recollection of events and her record keeping was, on her own admission, inadequate. She explained that her note 6/2/59 of process was her pre-operative assessment of the pursuer. Her note recorded foetal bradycardia. In relation to the pursuer, Dr Jones recorded full dilation of the cervix?; distressed and contracting; had eaten breakfast; had her own teeth; the airway was category 1; had not previously had a general anaesthetic; was taking no drugs and had no known allergies. This assessment which included examination and was relevant to general anaesthetic took approximately three to four minutes. There are no timings by Dr Jones relating to the pre-operative examination and no record by her of the spinal anaesthesia in the anaesthetic record. At some point after the pre-operative assessment by Dr Jones, an attempt to administer spinal anaesthesia was done by Dr Jones in the way that she described in evidence. The best information about these events which I consider to be available is the note written in retrospect by Alison McWalter. In that note she describes events from 11.14 to 12 noon (6/2, pages 20-21). She explained what she meant by these notes in her evidence. The note records an entry in which it is stated that "the anaesthetist attempted to insert spinal but unsuccessful". The timing of that entry which covers a description of a number of procedures is not clear from the note which appears to have been overwritten. The note probably reads 11.37. That appears to be consistent with the best estimate and recollection of Alison McWalter. It is an entry which falls between the entries timed at 11.25 and 11.41. Throughout this period the pursuer was contracting, in great pain and was distressed. As a result she was not able to sustain a position suited to spinal anaesthesia.

The period 11.40 am to 11.50 am

[49] Dr Tay recorded at 11.40 that there had been "a failed spinal". He said his note was timed when he wrote it. The note was referring to procedures including his vaginal examination carried out before 11.40. Dr Tay decided delivery should be by caesarean section. There was no dispute that Dr Cameron was the person who carried out the caesarean section and with the assistance of Dr Tay delivered CK. I accept that Dr Jones administered the anaesthesia during the caesarean section. The time to administer and establish anaesthesia and achieve delivery of CK was approximately 9/10 minutes. I accept that CK was delivered by caesarean section under general anaesthetic at 11.50. CK required intubation and specialist ventilation. She was transferred to a special ward where she received treatment.

The resolution of some important facts

Was there an emergency?

[50] The witnesses including the expert witnesses who were asked to comment on the foetal bradycardia agreed that an emergency situation arose shortly after 11 am. There was a risk of death or damage to the foetus if prolonged bradycardia continued. The pursuer and Mr K were obviously alarmed by what was happening and gave lay evidence about the development of an emergency situation because of the foetal bradycardia. I consider that Dr Cameron was well aware of the seriousness of the situation, the potential risk to the health and life of the baby and took various appropriate steps in response thereto to transfer the pursuer to theatre where the emergency could be dealt with. There was evidence that under more modern protocols, the situation might have been classified in a different way. Be that as it may, I accept that Dr Cameron recognised the emergency. The only grounds of fault alleged against her are narrow in compass and I deal with that separately.

The length and severity of bradycardia

[51] The length and severity of the bradycardia is important not only in relation to the birth but also in relation to causation. The CTG traces covering the period 09.27 to 10.06 (6/2 of process 74B) are normal. A new trace was started when the pursuer is in the labour ward at 10.20 (6/2 of process 74A). This is usefully explained in section 5 of Mr Walkinshaw's report. Mr Walkinshaw explained that an obstetrician would recognise prospectively about 11.11 that there is bradycardia but not severe. There would be concern. But by 11.13 prospectively the obstetrician would understand that there is no hint that the heart rate is returning to its previous level even after repositioning by the midwife. By 11.13 severe bradycardia would be identified. From 11.13 the rate drops from 90 beats per minute to 70 with a brief rise at 11.17 to 85. It was not disputed that bradycardia of 80 or below can cause damage over a period.

Did the pursuer eat on the morning of 11 May 1998

[52] This issue was reflected in a late amendment to the Closed Record. The pursuer explained that because of the way she was feeling in the early hours of the morning, she did not have anything to eat. She was not thinking about that. Dr Jones made a note in 6/1/59 of process to the effect that the pursuer "ate breakfast". Dr Jones explained that she had been given this information by the pursuer when Dr Jones did her assessment of the pursuer in theatre. She also recorded information from the pursuer that she had not previously had anaesthetic. In evidence, the pursuer accepted that she may have given the wrong information about previous anaesthetic to Dr Jones but she did not accept that she had told Dr Jones that she had breakfast.

[53] I accept the pursuer's recollection that she did not eat on the morning of 11 May for the reasons she gave in evidence. Her evidence was supported by Mr K. But I also accept that Dr Jones noted what she thought she was told at the time. There is no suggestion that Dr Jones falsified the entry and she is not blamed for obtaining wrong information. It may be that the discussion was not clear and that there was a misunderstanding by one or both parties to the conversation. In any event, I consider that it matters not in the context of this case. It was not in dispute that food consumption is one of the risk factors of general anaesthesia because of the risk of aspiration. But it is not a risk factor which prevents the administration of general anaesthetic and general anaesthetic was eventually given to the pursuer. This issue may have had some bearing upon whether a general anaesthetic or spinal anaesthetic was selected by the anaesthetist as the first choice of anaesthesia. But that is no longer relevant for the reasons given in paragraphs [77].

Was the decision made to proceed to emergency caesarean section at approximately 11.20 hours?

[54] This is the basis of the factual case averred by the pursuer. The obstetric decision making about the management of the pursuer was taken by Dr Cameron. Her decision making was in the context of concerns about foetal bradycardia which from at least 11.05 was noted as falling into the range of 100 to 110 and continuing to fall. The notes record that at 11.10 the foetal heart rate baseline was down to 90 despite midwifery attempts to relieve any compression of the cord. After 11.13 the foetal heart rate was noted as falling to about 70. Dr Cameron attended at about 11.16. She regarded the foetal bradycardia which she identified as an emergency because the baby can be damaged or die. Dr Cameron carried out a vaginal examination at 11.18 and made her note at 11.20. In the course of the examination Dr Cameron realised it was not possible to deliver the pursuer vaginally at that stage because the foetal head had not descended and was still minus 1 above the ischial spines. The membranes were ruptured. The pursuer was asked to consent to a trial of rotational delivery by forceps and if necessary caesarean section. Dr Cameron was able to carry out caesarean sections but not rotational forceps delivery. Dr Cameron phoned the senior registrar (not a witness). She told him the history, that the pursuer was to be taken to theatre for caesarean section or if the head descended for instrument delivery. He said it was a good plan. He said he could not come but that Dr Tay was available in theatre.

[55] Thereafter Dr Cameron bleeped the anaesthetist, alerted staff and ran to the theatre where she spoke to Dr Jones. That took about a minute. She said in evidence that she told Dr Jones that the baby had prolonged bradycardia and that the baby had to be delivered as quickly as possible. She said she would have told her that the head was above the spines but that Dr Tay would check to see if vaginal delivery possible. Dr Cameron said that she had told Dr Jones the nature of the emergency and that there was a possible trial of forceps or possible caesarean section.

[56] Alison McWalter in her retrospective note, noted that at 11.25 the pursuer was transferred to theatre for "? forceps ? caesarean" section. She had noted in her immediately preceding entry that forceps delivery in the room was not possible because the head had not descended.

[57] Dr Jones understood that the decision had not been made as to whether it was forceps or caesarean section. She understood that "we were waiting for Dr Tay". She did not know who had told her that this was the case. She said she was aware of the bradycardia and the urgency of delivery.

[58] The pursuer recalled that there was talk of caesarean section and talk of forceps and that the staff were still talking about this in theatre. Her understanding was that she was going to theatre for a caesarean section because it was an emergency. She thought she would be "knocked out and that would be it". Mr K remembered some talk about forceps in the labour suite and also someone talking about "a crash" caesarean. He thought that the pursuer was being taken to theatre for a crash caesarean section.

[59] Whatever the understanding of the pursuer and Mr K, I am satisfied that it is clear from the evidence of Dr Cameron, Dr Jones and Alison McWalter and borne out by the contemporary notes that there was no obstetric decision to proceed to emergency caesarean section at approximately 1120 hours. The obstetric management of the pursuer, up until the examination by Dr Tay, always involved the possibility of vaginal delivery using instruments. Because of the presenting position of the foetal head, forceps delivery would necessarily involve the use of special instruments. That procedure could not be carried out by Dr Cameron who was not trained and experienced in their use. The management of the pursuer therefore always envisaged the involvement of a more senior obstetrician who had that experience. That doctor was Dr Tay. It may be that in retrospect, immediate caesarean section could be regarded as the preferable solution in this case. It also may be that even prospectively, other doctors might have dealt with it in that way. Certainly Dr Walkinshaw would have done so. This is not a case however in which Dr Cameron is alleged to be at fault in the management which she decided upon in the labour suite or at fault in failing to decide to change that management to immediate caesarean section at some time before 11.40.

[60] My conclusions in relation to this are not inconsistent with the evidence of the pursuer and Mr K. According to their evidence, they were aware of some discussion about forceps delivery. The pursuer appears to remember some discussion about this even when she was in theatre at the stage of the spinal anaesthesia procedure. I think this is an important issue because it sometimes appeared to me that counsel for the pursuer wished to be able to develop a case of fault against Dr Cameron that she should have decided immediately to delivery by caesarean section. There is no case of fault in the pleadings and no such case developed in the evidence.

What did Dr Cameron tell Dr Jones?

[61] I have set this out in paragraphs [55] and [57] in order to put the evidence into context. I am satisfied from the evidence that as a matter of fact Dr Cameron did explain the nature of the emergency and the need to deliver the baby as soon as possible. It was not suggested to Dr Cameron, Dr Jones or Mr Walkinshaw that something was said or not said and that a "mixed message" was conveyed by Dr Cameron leading to a misunderstanding by Dr Jones. As the management of the pursuer included a trial of forceps, I do not consider that giving Dr Jones this information was a wrong "mixed message". In any event there was no evidence from Dr Jones that she interpreted the information in that way. I am satisfied that whatever the exact words used by Dr Cameron to Dr Jones, she conveyed to her that this was an emergency and the baby must be delivered as soon as possible.

Was more than one attempt at spinal anaesthesia made and how long did this take?

[62] These are critical issues in the case and I think it would be helpful if I discussed in some detail my assessment of the evidence of Dr Jones.

[63] Dr Jones had read the two expert reports of Dr Frame and Dr Bogod. I draw no adverse inference from that. She gave no impression that she had tried to shape her evidence to her advantage. She was very frank in saying she could not remember most events and could not explain detailed timings. She had a very limited recollection of events. This amounted to not much more than that she remembered the pursuer was in labour and very distressed. She was able to give a limited reconstruction based on the hospital records and notes. Her understanding and reconstruction was that a decision had not been made as to whether it was to be a forceps delivery or caesarean section delivery and that "we were waiting for Dr Tay". She did not know who had told her that. She was unable to explain why there was no record in the anaesthetic chart of the spinal anaesthesia. She accepted the record was brief and incomplete. I understood her evidence was that the experience for her had been a very stressful event. She accepted that she would normally have documented information about the spinal anaesthetic. She had no recollection as to what she was doing between 11.25 and 11.37. She said that it would normally take her three to four minutes for the necessary discussion with the patient and to carry out the physical assessment which she had documented in preparation for anaesthesia. For the rest of the time she would have been preparing the spinal and attempting to do it but she had no recollection of events. She said that she commenced the general anaesthetic immediately after Dr Tay had examined the pursuer and "decided on a caesarean". When asked about the safety of anaesthesia, she stated that spinal anaesthesia was the safest from the point of view of the mother. General anaesthesia is more hazardous for a pregnant woman. There is a higher incidence of aspiration of stomach contents. There is also an increased risk when intubating the patient. The vast majority of caesarean sections were done under spinal anaesthesia. That is much quicker than epidural anaesthesia which is a different technique. With spinal anaesthesia the mother could help with pushing. Spinal anaesthesia is easier to do if the patient is sitting up. If the patient is not able to sit up she would be placed on her side. Dr Jones thought she was attempting the spinal anaesthesia with the pursuer while the surgeon was "on the way".

[64] She described the technique which she used at the time for spinal anaesthesia. She said it is necessary to identify the bony landmarks in the spine and identify the mid-line L3-4 level and feel the ischial spine. The position is important as failure to properly position the needle could risk neurological damage. She would select a position where the spacing is widest at L2-3 to L4-5. When the space has been identified a local anaesthetic is applied to the skin. There is then an insertion of the "introducer" needle. The spinal needle which is a very fine needle is then passed through the introducer needle. The introducer needle provides some rigidity to prevent deflection. It is not usual to do this procedure during contractions because of the risks caused by an arching back. Once the spinal needle is in place it is necessary to feel the effect as the needle passes through the dura. It is then necessary to check that the procedure has been successful by checking the cerebrospinal fluid. The anaesthetic is induced and then another check is done in relation to the cerebrospinal fluid. Anaesthesia begins to have effect in a minute or so. Pain and contractions in labour make it more difficult for a patient to cooperate and for the administration of the anaesthetic.

[65] I accept that Dr Jones was the person who chose to administer a spinal anaesthetic. It is likely she thought there would be less risk to the mother. I accept that it is likely she was also aware that another doctor was to attend and that no final decision had been made as to whether the delivery was by forceps or caesarean section. It is plain from the evidence of Dr Cameron and Dr Tay, which I accept, that this was what Dr Cameron intended to happen and had arranged to happen. I consider it likely that this was part of the discussion with Dr Jones at some stage during the time the pursuer was in theatre. I accept that Dr Jones was experienced in administering spinal anaesthetic and well aware of the procedure involved which she described. There was a recognised risk, of which she was aware, that the administration might not successfully be completed.

[66] When I come to consider whether more than one attempt at spinal anaesthesia was made and how long this took, there is no assistance to be found in the anaesthetic notes. Dr Jones does not remember what happened. She gave her evidence on the basis of one spinal anaesthetic being attempted. It was never suggested to her that she made more than one attempt and so her comments about that scenario are not available.

[67] Alison McWalter stated that she could not remember what was happening in theatre in the first ten minutes and she did not remember whether a spinal anaesthesia was tried and failed more than once. She expressed a view referring to her note at 11.37 (6/2/21 of process) that spinal anaesthesia was still being tried at 11.37 because the pursuer was on her side.

[68] Dr Tay was not present during the attempted spinal anaesthesia. He said that it was not going on when he arrived. At 11.40 he made a note and that note records what he had done before that time. From that, I deduce that the attempt at spinal anaesthesia had stopped by about 11.38. I infer that Dr Tay arrived at about 11.38, assessed the situation, carried out the vaginal examination and made his decision about caesarean section, before writing his note at 11.40.

[69] At 11.40, Dr McClure was still in a different theatre with a different patient and was not present. I accept that Dr Tay had left Dr McClure attending said patient.

[70] Dr Cameron stated that she was outwith the presence of the pursuer for some 2 to 5 minutes after the decision to transfer the pursuer to theatre. Dr Cameron was busy dealing with other matters including alerting Dr Tay and getting ready for possible forceps delivery by Dr Tay. At about 11.28 to 11.31, Dr Cameron returned to the area in theatre where the pursuer had been taken (the ante room). At that stage Dr Jones was either preparing or attempting to insert spinal anaesthesia. Dr Cameron thought she was present at the time when the spinal anaesthesia was discontinued and that was when Dr Tay appeared. Her recollection was that Dr Jones persisted with the spinal anaesthetic for "a couple of minutes" and stopped when Dr Tay arrived. It was not suggested to her that she had witnessed two attempts at spinal anaesthetic. Her evidence was not very clear in relation to the timing or what was happening during the spinal anaesthesia. The best she could say was that during the period some time after about 11.28-11.31 and until Dr Tay arrived, there was preparation for spinal and an attempt at spinal anaesthesia which ceased when Dr Tay appeared.

[71] The pursuer was conscious. She was worried about the baby, in pain and contracting. She was not able to assist in her evidence with the timings. The pursuer gave general evidence about being curled up and some attempt being made to carry out a procedure. She described the problems and pain which she suffered. She does not describe any periods in theatre when staff stood around doing nothing in relation to her.

[72] Mr K was the only witness who gave direct evidence that there were two attempts at spinal anaesthetic and that both attempts failed. Mr K was plainly very upset and distressed by what he saw and experienced. Before the pursuer's transfer to theatre, he described the experience as "surreal and strange". He said "a crash" caesarean was mentioned. He was asked to go and change before going to theatre. He wondered why he was going to theatre. He remembered something about a discussion about forceps and "crash" caesarean but he thought the pursuer was going to theatre for a "crash" caesarean and nothing else. When he was changing before going into the theatre he said it was "scary". He did not want to be there. He sat for a minute or so and he thought he was waiting for "quite a while". When he rejoined the pursuer, she was on her side. The midwife could not find the foetal heart rate. The pursuer was having contractions. She was in agony. She was distressed. His recollection was that it was "a guy with glasses" putting a needle into the pursuer's back. The guy got annoyed when it didn't work and he said he would try it again. He carried out the same procedure. Mr K was trying to hold the pursuer in a curled position. Mr K remembered seeing the needle going into the pursuer's back on the first attempt. He remembered seeing blood spurting. He did not see the second attempt but he heard the discussion and reference to failure and "doing it again". He described the experience as a "nightmare" from the time the pursuer's waters broke. Mr K said he was getting "a bit angry" and when the man said he was going to try again he left or was asked to leave after a couple of minutes. He said that if he had stayed another five minutes, "he would have knocked this guy out".

[73] I accept that this was a very distressing experience for both the pursuer and Mr K. I consider that Mr K was doing his best to give a truthful and reliable account of events. Mr K was plainly wrong in his recollection about the identity of the person carrying out the spinal. The pursuer's case is based on that procedure being carried out by Dr Jones. On the evidence there was no other anaesthetist present. I accept that Dr Jones was the person involved. I consider also that Mr K's emotional state and lack of understanding of the medical procedures make it impossible to rely on his recollection. Spinal anaesthesia is a procedure in which there are two needle insertions as part of the same process. There is no support from any of the medical witnesses that the procedure was attempted and failed twice. The matter was not even put to Dr Jones or Dr Cameron for comment. I am not persuaded on the balance of probability that two attempts were made. In any event, I consider that the number of attempts is not what is critical to the pursuer's case but the timing. As I understand the pursuer's case, the essential criticisms of Dr Jones is that she did not proceed quicker to administer general anaesthetic. The contention is that by persevering and carrying out a second attempt, she spent far too long on this spinal anaesthetic procedure.

Negligence

Evidence in relation to the alleged negligence of Dr Cameron

[74] Counsel for the pursuer invited me to find fault in relation to Dr Cameron on the basis of the evidence of Mr Walkinshaw. I had no difficulty in accepting Mr Walkinshaw as an expert in obstetrics on the basis of his professional experience and qualifications. He was, however, led by counsel for the pursuer into areas which bore upon practice and timings in relation to anaesthesia. I accept that Mr Walkinshaw has long professional experience working in the interface between obstetrics and anaesthetics in relation to anaesthetic practice and timings. In his evidence, Mr Walkinshaw claimed to have a working knowledge of what is done but he did not claim to be an expert in anaesthetic and spinal anaesthesia. He would not claim to debate with a consultant anaesthetist or even a junior anaesthetist about such matters. I am not in these circumstances prepared to rely on his evidence in relation to any material issue about anaesthetic practice or timings in a case where expert evidence from anaesthetists is led by both parties. I found Mr Walkinshaw's evidence very helpful in explaining and interpreting the records and implications of the bradycardia.

[75] I was left puzzled at the end of Mr Walkinshaw's evidence as to whether he was aware of the legal test for professional negligence which was never put to him expressly or impliedly. There was no focus on the case which the pursuer makes on record in relation to Dr Cameron as to what a reasonable competent obstetrician should have told the anaesthetist at 11.26 or later. No attempt was made to explore with Mr Walkinshaw what Dr Cameron allegedly did or said and how that compared with the legal standard of professional negligence. Later in the evidence, the pursuer's counsel explored with Dr Bogod what Dr Cameron had said and the reference Dr Cameron had made to caesarean delivery or forceps delivery. There was a suggestion that the anaesthetist might have obtained a mixed message about the urgency of the situation from this reference by Dr Cameron to the proposed management of delivery. This was never explored with Dr Walkinshaw who was the appropriate expert to comment on what was said and done by Dr Cameron. In any event it was never suggested by Dr Jones that as a matter of fact she drew the wrong inference or had some misunderstanding about the urgency of the situation because of what was said by Dr Cameron.

[76] I am satisfied that there is no adequate basis in the evidence, either factual or expert evidence to conclude that there was any fault on the part of Dr Cameron on the basis of the case pled against her.

Evidence in relation to the alleged negligence of Dr Jones

[77] Both Dr Bogod and Dr Frame had impressive expertise and experience in the area of obstetric anaesthesia. Dr Bogod accepted that there were risks in using general anaesthesia for caesarean section and that regional anaesthesia, including spinal anaesthesia, is used whenever possible. He considered that spinal anaesthesia might take as little as five minutes but he recognised that there were technical difficulties and that this can extend the timing. Anaesthetists are reliant upon communication from the obstetrician about the urgency and speed of delivery required. That information is factored into their decision making. Dr Bogod's opinion is predicated on the basis that the present case was in the most urgent category involving immediate threat to the life of the woman or foetus and therefore caesarean section under general anaesthetic should be done. In his evidence he did not address obstetric management on the basis that caesarean or forceps might be an accepted mode of delivery in the urgency of the situation. Even on Dr Bogod's understanding of the case, he accepted that professional opinion would support a single attempt at spinal anaesthesia for no more than five minutes. He expressed concern about the poor record keeping of the anaesthetist which he said hampered the preparation of his report. In his opinion, if the pursuer arrived in theatre at 11.26, an ordinary competent anaesthetist would have had her prepared for delivery by 11.34 at the latest. This appears to be on the basis that the anaesthetist would proceed immediately to make a single attempt at spinal anaesthesia for no more than five minutes and then take no longer than a further three minutes to induce general anaesthesia and intubate the trachea. In his examination in chief, Dr Bogod accepted that he had given evidence to some extent about what an obstetrician should do and he conceded that perhaps he should not have done that. It was not until cross-examination that he was asked in terms what an ordinary competent anaesthetist would do. From cross-examination it was very clear that he was making a concession in favour of the defenders in relation to a five minute spinal attempt at anaesthesia on the Hunter v Hanley test.

[78] Dr Frame, both in his report and his evidence made it plain that he understood the Hunter v Hanley test for professional negligence. His evidence was to the effect that it is the obstetrician, not the anaesthetist who is responsible for the mode of delivery. He interpreted the present case as a case in which the anaesthetist was told that the mode of delivery is caesarean or forceps and that the mode of delivery is to be decided by a doctor not yet present. His evidence was supportive of Dr Jones in relation to her first choice of anaesthetic and the timing thereof regardless of whether one or two attempts were made. Dr Frame volunteered, in the course of his evidence, information to the effect that the consultant obstetrician, if he decided to do a forceps delivery, would have been able himself to induce anaesthesia by a method never explained in evidence and in a very short time. This was the first mention of this in the evidence and it came almost at the end of the case. Objection was taken by counsel for the pursuer. Counsel for the defenders did not seek to explore the matter. This might have helped explain some of the decision making in this case, but in the circumstances I consider it would be unsafe to draw any inference from this evidence. It does illustrate, however, that this case is not an enquiry at large about what happened but constrained by the case pled.

[79] I am not persuaded that there is any reason to reject Dr Frame's evidence. Indeed I consider that his evidence was based on a clear understanding of his role as an expert taking into account the legal test of professional negligence in its well known form of Hunter v Hanley. I accept that it is the obstetrician who is responsible for the mode of delivery and the anaesthetist for the choice of anaesthetic. It was not disputed in this case that general anaesthetic is not normally appropriate for forceps delivery. In contrast, a spinal anaesthetic allows the mother to push and aid delivery. I consider that it is Dr Frame, rather than Dr Bogod who properly understood the factual situation in this case. In my opinion it is not for Dr Bogod to determine that this case is equivalent to the most urgent category for caesarean section. The obstetric decision making in this case which included the possibility of delivery by forceps is not alleged to be negligent. I have found as a fact that the decision making was delivery by forceps or caesarean section. In these circumstances I do not consider that I am entitled to reject the evidence of Dr Frame which is supportive of Dr Jones. In any event, I was not persuaded by counsel for the pursuer that there was any good reason to do so. I consider that the submissions made by counsel for the defenders in relation to this chapter of evidence are well founded for the reasons he states.

res ipsa loquitur

[80] I admit to some surprise that counsel for the pursuer sought to rely on res ipsa loquitur in this case. There is no hint of that in the pleadings. In any event, in my opinion the facts and circumstances come nowhere near a situation where the maxim or principle of res ipsa loquitur is relevant and might be applied. There is no mystery in this case as to the facts. The facts were explored in detail over days of evidence. Childbirth is potentially hazardous to both mother and child and an emergency situation can develop very quickly and unexpectedly, as illustrated in this case. There was no evidence to the effect that with non negligent assistance in a hospital situation, there is a guarantee of a safe delivery and uninjured child. It is probably within judicial knowledge that sadly, such emergencies can have tragic outcomes for the child and family, even with the best medical and nursing care. Although there are some recognised circumstances, illustrated in Ratcliffe, where it might be appropriate for the pursuer to rely on res ipsa loquitur, the situation in the present case is in no way comparable. Indeed there was no focus in the evidence to the effect that the injury suffered by CK could not have occurred without negligence. On the contrary, the focus in the case related to certain acts and omissions which were alleged to be negligent and causative of the injury. I consider that the submission made by counsel for the pursuer in relation to this is wrong.

Causation and severity of damage

[81] As I am not persuaded on the balance of probability that the pursuer has established negligence in respect of Dr Cameron or Dr Jones, causation and the severity of damage caused to CK by negligence do not arise. It may be helpful however if I deal briefly with these issues.

[82] I consider that even if there was negligence on the part of Dr Cameron and or Dr Jones, there would be difficulties in relation to causation for very simple reasons. I am satisfied that it is plain in this case that the management of the delivery by Dr Cameron was on the basis of forceps or caesarean section and that the delivery method was to be decided by and done by another doctor, namely Dr Tay, whom Dr Cameron had involved. Whatever the merits of this management, there are no grounds of fault directed against Dr Cameron or Dr Tay in respect of it. Even if Dr Jones had anaesthetised the pursuer by spinal anaesthetic some time before 11.34/35 or indeed any time before Dr Tay's involvement, there is no evidence that Dr Cameron would have proceeded immediately thereafter to carry out a caesarean section. It was never suggested to her that she would have done this and she gave no evidence to that effect. That means inevitably that there is no basis in the evidence which would enable me to find that CK would have been delivered any earlier than she was delivered.

[83] I turn now to the complex expert evidence given by Dr Rosenbloom and Dr Rennie. I deal firstly with severity of damage. Both Dr Rosenbloom and Dr Rennie were in general agreement about what might be categorised very broadly as three levels of damage. Mild damage is consistent with a milder form of cerebral palsy with poor postural control. A child with such damage can usually walk, albeit with clumsy movements. Such a child can usually look after himself and have the capacity to live independently because intelligence is preserved. Moderate damage involves more disability. Such a child would have speech. But would be unable to walk independently. The child would be able to use a powered wheelchair and technology. The child would be unlikely to obtain employment in the open market. There would be some intellectual ability including basic numeracy and reading. Such a child would be unlikely to cope with education. An IQ of 75-80 might be expected. CK is in the severe category and at the higher end but not the most profound. Despite profound disabilities, CK is socially interactive and very responsive to her parents. She was aware in a strange environment. She was able to communicate distress and pleasure. CK contrasts with some children who are so brain damaged that they are not able to respond in this way. CK can understand speech at a simple level. She has a level of understanding of about a two year old albeit that is an over simplification.

[84] As I understand the final position of counsel for the pursuer, in relation to causation, he submitted that the earliest time of delivery of CK without negligence would be 11.40. He invited me to accept Dr Rosenbloom's evidence and conclude that there would have been some damage to CK but she would have fallen into the mild category. I do not accept that the pursuer's alternative case bears out a delivery time at 11.40. I have found that the actual delivery time is 9-10 minutes following upon a 3-4 minute assessment for general anaesthetic. Had a caesarean section been carried out earlier, I am satisfied that Dr Cameron would have carried out the delivery assisted by Dr Jones in relation to anaesthesia. That would have been likely to take at least the same time as actual delivery and pre-op assessment. If one then adds 5 minutes for a failed spinal attempt that brings out a delivery time, on the pursuer's alternative case, of 11.44/45 (11.26 + 3/4 + 10).

[85] I accept the table prepared by counsel for the pursuer and recorded in paragraph [19] as a helpful analysis of the evidence in relation to damage and timings given by the experts.

[86] The question then arises whether I am prepared to accept the evidence of Dr Rosenbloom in relation to causation and timing. The CV's of both experts were very impressive. It was plain from the evidence of both Dr Rosenbloom and Dr Rennie that both witnesses were entitled to claim acknowledged expertise which was recognised well beyond UK boundaries. I thought they were both measured and fair in their evidence. Dr Rosenbloom was the more senior of the two. Both experts held each other in high esteem and on occasion collaborated together. Dr Rosenbloom is a paediatric neurologist and Dr Rennie is primarily a neonatologist but their interests and expertise overlap because they both have special interests in neonatal brain disease. Dr Rosenbloom examined CK in 2004. This is not a case in which I was prepared to prefer the evidence of one of the experts because of any of these factors. In my opinion both experts were very well qualified and informed to express an opinion.

[87] Dr Rosenbloom gave evidence on the basis of his reports 6/9 and 6/10 of process. He regarded this as a case of profound hypoxia. He considered that the damage probably occurred in a stepwise fashion and in that sense is a process. The orthodox advice is to deliver the baby before any brain damage and therefore before the foetus suffers 10 minutes of profound hypoxia. That is not to say however that all babies begin to suffer damage after 10 minutes of profound hypoxia. The students are taught that the foetus can survive 10 minutes of profound hypoxia before damage and after another 15 minutes the baby will die. But in clinical practice and medical legal practice the 25 minute period may be exceeded. He accepted that it is very difficult to give precise timings. One of the difficulties is that the damaging hypoxia, although profound, did not amount to total anoxia. The animal studies on which both experts relied are based on total anoxia. With reference to his report (6/10 of process) at pages 7-8, Dr Rosenbloom discussed possible ways in which the period of probable hypoxia can be divided between an initial non-damaging period and subsequent damaging period. From these possibilities, he rejected the third possibility which involves the application of a 2/3 ratio in respect of the non-damaging period of hypoxia and the damaging period of hypoxia. He regarded this as a "totally artificial arithmetic construct". This is a major point of difference with Dr Rennie who gave support to this theory. Dr Rosenbloom supported a theory which he considered biologically more plausible which is to the effect that the initial non-damaging period of hypoxia is likely to be longer rather than shorter "particularly as in this case the initial foetal bradycardia was not profound i.e. not below 80, and because there was no evidence of any foetal recovery throughout the whole length of the hypoxic period". He prayed in aid the timing and severity of the hypoxic event referring to the heart rate of 40 at birth, the PH reading and relative ease of resuscitation. On this basis he concluded that the brain damaging period commenced at around 11.35.

[88] The main conflict in the evidence of the two experts relates to causation and timing. Both experts accepted that the opinion which they have reached in this individual case is in response to the particular circumstances of a case which they both considered to be unusual in relation to damage and timing. The present case does not, in their opinion fit, a pattern which is well established and in respect of which they would more confidently be able to provide an opinion. There is general agreement between the experts about the general pattern and they accepted that it is relevant to draw upon the experience gained from animal experiments. Each expert developed a new theory about the timing of damage. As a result, I am faced in the evidence with two new theories which are irreconcilable. Neither of these theories have been published or subjected to any scrutiny in the wider scientific or medical community. I make no criticism of either of the experts for this. I merely state it as a fact. These experts have not had the opportunity, as expert witnesses, to discuss with each other their theories before giving evidence. I understood that this would have occurred in the English jurisdiction and would have been a welcome opportunity. In a case such as this, that opportunity might have resulted in some assistance to the Court. There is plainly scope for some updated consideration of the role and function of expert evidence in our system but that is not my task in this case.

[89] I have found that there were periods between 11.13 and 11.25 when the foetal heart rate was below 80 and thereafter much is unknown about the foetal heart rate. Dr Rosenbloom conceded in cross-examination that on the limited information available, a single PH reading would not give him persuasive evidence on which to rely. In evidence, Dr Rennie was not persuaded by the reasons given by Dr Rosenbloom and rejected them. I consider that the reasoning of Dr Rosenbloom is undermined by the facts found in relation to foetal bradycardia, the concession he made in cross-examination and the criticisms of Dr Rennie. My impression of the evidence of Dr Rosenbloom in relation to this issue is that he has used his considerable experience and expertise to try to answer a problem to which there is as yet no accepted answer. In the state of the evidence, I am not persuaded on the balance of probability of the theory advanced by Dr Rosenbloom. That does not mean that I accept Dr Rennie's theory. It merely means that on the evidence I am not persuaded in relation to this issue by the reasons given by Dr Rosenbloom.

[90] I conclude that the defenders should be assoilzed.