Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 145
A47/11	OPINION OF LORD ARMSTRONG in the cause LG (AP) Pursuer; against GREATER GLASGOW HEALTH BOARD Defenders: ________________

Pursuer: Carmichael QC, McNaughton; Digby Brown LLP

Defenders: McLean QC, MacSporran; NHS Central Legal Office

27 August 2013

Introduction

[1] The pursuer lives in Glasgow with her husband. She is the mother and guardian of her son, T, who was born on 19 March 2004, and she brings the present action in that capacity. T was born with serious brain damage most probably caused by acute hypoxic ischaemia sustained in the course of his birth. He has developed dystonic cerebral palsy with spastic quadriplegia.

[2] The medical notes relating to the pursuer's ante-natal history disclose nothing remarkable and no material medical complications during it. This was the pursuer's third pregnancy. Both of her previous children were born fit and healthy.

[3] The pursuer seeks reparation for the loss, injury and damage sustained by T on the basis that, had his delivery been expedited, the neurological disability from which he will continue to suffer would not have occurred or would have been less severe than is the case. Her criticisms are directed against Mr Joseph Ogah, consultant obstetrician (referred to hereafter as Dr Ogah, as he then was in 2004) and Dr Steven Thomas, anaesthetist, both of whom treated the pursuer during her labour at Queen Mother's Hospital, Glasgow ("QMH"). At the time, Dr Ogah was an obstetric registrar and Dr Thomas was a senior house officer ("SHO").

[4] The case of fault directed on behalf of the pursuer against Dr Ogah is that, on the basis that no ordinarily competent obstetric registrar would have failed to recognise that a drop in foetal heart rate ("FHR") from 170/180 bpm to 100/110 bpm represented a risk of brain damage and the need for a category 1 caesarean section, or would have carried out a full vaginal examination or would have failed to ensure that obstetric procedures were carried out without undue delay, he failed in his duties to communicate to Dr Thomas that the requirement for delivery was as a most urgent category 1 case or "crash section" requiring to be carried out as soon as possible, without delay and to communicate to him that there had been foetal bradycardia and that there was an immediate threat to the life of the foetus.

[5] The case of fault directed on behalf of the pursuer against Dr Thomas is that, on the basis that no reasonably competent anaesthetist would have undertaken a "quick spinal" unless it could have been completed by 00.27 or would have failed to authorise the commencement of surgery when the spinal block had reached the level of T7 or would have failed to administer general anaesthesia if the administration of spinal anaesthesia had been unsuccessful by 00.27, he failed in his duties to ascertain from Dr Ogah the degree of urgency of the necessary delivery and to achieve appropriate anaesthesia at the proper time to expedite delivery by caesarean section.

[6] The action came before me for proof at which, at the outset, the parties were agreed that, given the apparent variables and complexities relating to causation, there was merit in restricting the matters to be determined by me to the following issues:

1. Has the pursuer proved that there was negligent delay on the part of Dr Ogah, registrar obstetrician and/or Dr Thomas, senior house officer anaesthetist, in the period after 00.20 on 19 March 2004 in arranging for the delivery of T?

2. If there was such negligent delay, when would T probably have been delivered had that negligent delay not occurred?

Since the approach proposed was likely to reduce the necessary ambit of any subsequent evidence relevant to causation, I allowed the proof to proceed on that basis.

[7] It was a matter of agreement that all medical and professional care provided to the pursuer in relation to her labour at QMH up to around 00.20 on 19 March 2004 was in accordance with usual and normal practice. It was also agreed that T was delivered at 00.48.

Time Line

[8] The pursuer's clinical notes (7/1 of process) and the related cardiotocograph ("CTG") traces, insofar as spoken to by witnesses, disclose the following order of events occurring during the evening of 18 March 2004 and the early hours of the following day:

21.25 Admitted with spontaneous rupture of membranes. Mild to moderate contractions occurring two to three times every 10 minutes. Uncomfortable and given entonox. Blood pressure 137/74. Pulse rate 111. Head 3/5 palpable.

21.50 Vaginal examination: 4 centimetres dilated. Head 2 centimetres above ischael spines.

22.35 Diamorphine administered.

22.50 Moved from admissions to delivery room 6.

23.00 Temperature 37.1 degrees centigrade. Given paracetamol.

23.10 Meconium stained liquor recorded.

23.30 Head 2/5 palpable. Vaginal examination: 8 centimetres dilated. Head at ischael spines. Fresh meconium noted. Three foetal blood samples taken, all producing reassuring results.

23.45 Feels like pushing.

23.55 FHR baseline 180- bpm. Heavy show.

00.00 Urge to push.

00.05 FHR 100 bpm, not recovering.

00.10 FSE applied.

Vaginal examination not possible because of distress +++. Wishes caesarean section. FHR baseline 105 bpm.

(per Dr Ogah's retrospective notes: Too distressed to tolerate vaginal examination fully but on digital examination not fully dilated. FHR 105/110 bpm).

00.15 Cimetidine administered.

00.20 Arrival in theatre

(that time is inconsistent with the timed disconnection of the CTG machine in delivery room 6 which according to the trace occurred at just before 00.22).

00.31 CTG machine in theatre reconnected.

00.38 Spinal anaesthesia sited

(cf. anaesthetics notes: 00.39).

00.42 Block at T7.

00.45 Block at T6.

(per Dr Ogah's retrospective notes: while in theatre, head 1/5 in abdomen. Vaginal examination: 8/9 centimetres).

00.47 Knife to skin.

00.48 Delivery.

The evidence

[9] I heard evidence from eleven witnesses in all, four who spoke to fact and five who gave expert opinion evidence. In addition, a joint minute (no. 27 of process) was lodged.

[10] The pursuer was 39 years of age when she was pregnant with T. When she arrived at QMH, at about 21.25 on 14 March 2004, together with her husband who was with her throughout, she was 8 days over full term. She was initially assessed in an admissions ward and subsequently moved to delivery room 6. A CTG was set up to monitor her contractions and the foetal heart rate and she was given entonox (gas and air) for pain relief followed, after an hour or so, by diamorphine.

[11] When she was seen by Dr Ogah, she told him that she felt something was not right and that something might be wrong with the baby. She repeated her concerns to him on a further two occasions. She was in considerable pain and sometime later was unable to tolerate a vaginal examination. She said that she told Dr Ogah that she needed help but, despite his comments that she had previously had two normal births and that all would be fine, she was not reassured. She felt that he was not listening to her.

[12] She described what she interpreted, at the time of the attempted vaginal examination, as a disagreement between Dr Ogah and the midwife as to the extent to which her cervix was dilated.

[13] She had an urge to push but then it disappeared. She had pain in her back which she had not experienced during her previous deliveries. She spoke of an exchange with Dr Ogah in which he said she was going to have a caesarean section "not because she wanted it, but because she needed it". He had also said that it might still be possible to try for a normal delivery after she was taken to theatre.

[14] She was taken from delivery room 6 to theatre in what felt like seconds and felt relief that something was happening. She recalled spinal anaesthesia being administered. In theatre, Dr Ogah asked to perform another vaginal examination to determine if a normal delivery might still be possible but she replied to a nurse "What does he not understand?". T was then delivered by caesarean section, following which she was taken to a recovery room where, after some time, she was informed that the outcome for T had not been a good one.

[15] In cross-examination, she agreed that her recollection was not complete and that she could not be sure of timings. She did not remember the extent of involvement of Dr Eleftherios Anastasakis who had previously carried out a vaginal examination and had taken foetal blood samples ("FBS"). She could recall that in theatre people were rushing about although it was all a bit of a blur.

[16] In re-examination she confirmed that she had felt relieved when going to theatre and did not remember being angry there.

[17] Mr G confirmed his wife's account of admission to QMH and events in delivery room 6. He had been with her just before she was taken to theatre. Dr Ogah had been in attendance. Mr G also described a disagreement between Dr Ogah and the midwife about the extent of the pursuer's dilation. His wife had been in a lot of pain. His recollection was that it was Dr Ogah who had taken the FBS and described him throwing one away, over his shoulder, because it wasn't adequate. He remembered his wife feeling that she wanted to push and her telling Dr Ogah to stop the vaginal examination because of the pain. He remembered Dr Ogah telling her to stop shouting. His recollection was that the necessary consent form had been completed before midnight. After that he was taken from the delivery room to prepare for theatre. He had then waited for about 20 minutes before being taken in to theatre. While waiting, he saw Dr Ogah and Dr Thomas talking just outside the operating theatre for about 10 to 15 minutes. Later when Dr Ogah came to see them at about 4.30 he had said that he didn't know what had gone wrong, but that if something similar were to happen again he would do everything the same way. Mr G confirmed that he and his wife had never had a real explanation of what had happened.

[18] In cross-examination, he agreed that the medical notes were probably a more accurate narrative of events than his own recollection. He was sure it was Dr Ogah and not Dr Anastasakis who had taken the foetal blood samples. His wife had been wanting to push at about 23.45 and had been saying that something didn't feel right. She had been very distressed. Her voice had been raised when she was asking for help. He accepted that his estimate of 10 to 15 minutes as the duration of the conversation between Dr Ogah and Dr Thomas might not be accurate. He was definitely sure of his recollection that the consent form had been signed before midnight.

[19] Dr Ogah was an obstetric registrar at QMH in 2004. He first saw the pursuer at 22.15 and authorised diamorphine. At 23.30 he supervised a vaginal examination by Dr Anastasakis and the taking of three good FBS by him. Dr Ogah had decided that the taking of the FBS was appropriate because of apparent foetal tachycardia and late decelerations recorded on the CTG trace. There had been some difficulty in obtaining the samples because of the pursuer's distress. He denied the suggestion that he had thrown an inadequate sample away, over his shoulder, as described by Mr G, and explained that it would not be in his character to act in that way. The results of the FBS had been normal.

[20] The vaginal examination carried out at the time of the taking of the FBS disclosed that the baby's head was descending. That fact indicated that the pursuer's labour was progressing. He didn't recall the pursuer saying that something felt wrong. He said that if she had said something like that, he would have reassured her.

[21] He did recollect that the pursuer was not cooperative. He explained that although that wasn't stated explicitly in the notes, the words "unable to tolerate VE", which did appear, simply meant that she was unable to cooperate with the procedure which he wanted to carry out. He appreciated that a vaginal examination was an uncomfortable and invasive procedure which could hurt. If a patient asked him to take his hand away, he had no option but to stop. In the context of the events which happened in a labour ward, he would be hesitant to apportion blame, in that respect, in writing.

[22] Although by 23.55 the FHR was 180 bpm, which was abnormal and of concern, the FBS results had been entirely normal. That being so, the decision was to let labour progress and then repeat the taking of FBS within an hour if there was no progress. The presence of meconium and a heavy show, together with the urge to push, were signs that labour was progressing.

[23] He next saw the pursuer at 00.10 by which time, the FHR had dropped to 100 bpm and was not recovering to the previous baseline. That was a matter of concern. The pursuer was too distressed to allow a vaginal examination and was asking for a caesarean section. He thought that his response would have been "If we need to carry out a caesarean section we will do it, but let's be certain that we need to. Let's get an assessment done." He couldn't remember his precise words. He did not recall saying "You are not getting a caesarean section because you want one, you are getting one because you need one". He thought it would not have been in his character to say that.

[24] His decision was to take the pursuer to theatre. The resident anaesthetist was contacted and the pursuer was made ready for theatre. Cimetidine was administered. The theatre checklist was completed. A Venflon catheter was inserted and bloods taken and sent. The necessary consent form was signed by the pursuer.

[25] Although it is dated 18 March 2004, the true date of completion of the consent form was 19 March 2004. That must have been the case since he had only arrived in the delivery room at about 00.10 and only after that had the decision to go to theatre been taken.

[26] His intention was to examine the pursuer in theatre to confirm whether the option of a vaginal delivery was still possible. There were known facts which suggested that might be the case. She had given birth twice before. The baby's head was descending. She had dilated from 4 centimetres to 8 centimetres in a relatively short time. Because she was a multiparous woman, it was possible that she would proceed to delivery very rapidly. In the event that examination disclosed that vaginal delivery was not possible, the appropriate mode of delivery would be caesarean section.

[27] Although the two options involved different procedures, only caesarean section was entered on the consent form. That was because it was the more grave of the two options. That was standard practice. The context of the pursuer's consent was that he had explained to her that in addition to caesarean section there was still the possibility of a vaginal delivery. The purpose of the vaginal examination in theatre was to determine if vaginal delivery was possible. He explained that, in any event, if required, he would have taken verbal consent for a vaginal delivery and documented it afterwards.

[28] Cimetidine was given at 00.15 on the basis that there might be a need for general anaesthesia. That being so, the decision to go to theatre was probably taken at about 00.14. The decision to go to theatre was authorised by the consultant on call whom Dr Ogah telephoned before going to theatre.

[29] The removal of the trace electrodes of the CTG, timed at just before 00.22, was the last thing done before moving the pursuer from the delivery room. He thought it would take at least a minute to transfer the pursuer from the delivery room to theatre.

[30] He had a conversation with Dr Thomas, the anaesthetist. Although he couldn't remember the precise words used, he thought he would have said that there was bradycardia and the possibility of a need for caesarean section but that there was also a need to examine the pursuer first to determine the possibility of a vaginal delivery because her labour was progressing rapidly. He would have said that it was an emergency. He had no doubt about that. That type of conversation would normally last one to two minutes. As at 00.10, although there had been a drop in FHR, it had risen to 110 bpm.

[31] He described the situation as a category 1 case. There was no room for delay. An urgent delivery was required but so was due regard to the safety of both mother and baby. A rapid delivery could create risks to both. His assessment had been that there was no doubt that an emergency delivery was necessary.

[32] He disagreed with the suggestion that the drop in FHR from 180bpm to 100/110bpm indicated that the baby was not perfused. He maintained that at 100/110bpm the baby was adequately perfused.

[33] As between general anaesthesia and spinal anaesthesia, his preference in such a situation was for spinal anaesthesia, because if the pursuer's labour did progress rapidly and the baby's head descended, a vaginal delivery would be more difficult under general anaesthesia.

[34] He did not accept that on arrival in theatre, he should have carried out a digital examination which would have disclosed that the pursuer was not fully dilated and should then have proceeded directly to caesarean section. A full vaginal examination was required in order to determine whether she was fully dilated. The pursuer had not tolerated an attempted full vaginal examination in the delivery room and time had passed. If, with appropriate anaesthesia, she had been found to be fully dilated it would have been wrong not to deliver vaginally. Without a vaginal examination he could not know whether she was fully dilated. There was a need to properly assess the pursuer in order to achieve the optimum outcome. The plan was for an emergency caesarean section after examination confirming that was appropriate. It was necessary first to rule out vaginal delivery as the safest option. A digital examination was not appropriate because of the pursuer's distress. His priority was for her to have anaesthesia.

[35] In relation to the commencement of the caesarean section, Dr Ogah would expect to be told by the anaesthetist when to make the first incision. He would not expect to be given the detail of the level which the spinal block had reached at any stage.

[36] He had no recollection of any disagreement with a midwife.

[37] His recollection was that he had conveyed urgency to Dr Thomas. He considered that, in fact, no time was wasted. In theatre, things were happening right up to the point when the spinal anaesthetic was sited.

[38] His role was to decide how best to effect an urgent delivery in the quickest and safest way. To do that he required to carry out a vaginal examination. Before carrying out the vaginal examination it was necessary for sufficient anaesthesia to be in place to allow a forceps delivery to be possible if that was required.

[39] In cross-examination, he confirmed under reference to the medical notes that at 22.20 the FHR had been 170 bpm. In terms of the NICE Guidelines 2001 (7/8 of process), current in 2004, a baseline of 110/160 bpm was reassuring, a baseline of 100/109 or 161/180 was non-reassuring and one of less than 100 bpm or more than 180 bpm was abnormal. Below 100 bpm, perfusion was affected. There could be a number of reasons for foetal tachycardia. It could be caused by an increase in the mother's heart rate or her temperature or by dehydration. The CTG had a limited use. It could suggest worrying features which, on objective testing, would not be borne out. FBS provided an objective assessment as to whether a baby was distressed.

[40] At 23.30 there had been certain indicators of progress in labour. The baby's head was 2/5 palpable (having been previously 3/5). On examination, the baby's head was at the ischael spines, having been 2 centimetres above previously. The pursuer was 8 centimetres dilated, having been 4 centimetres dilated less than 2 hours earlier. Although meconium had been noted, that could be normal with a late baby. The FBS had produced reassuring results. It was appropriate to allow labour to progress as normal and reasonable to expect delivery soon with further review in about 1 hour. At 23.45 the pursuer felt like pushing. At 23.55 there was a heavy show and at 00.00 she had the urge to push. All of that suggested that labour was progressing and could end soon.

[41] However the drop in FHR from 180 bpm at 23.55 to 100 bpm at 00.05 was a cause for concern. The FHR was not recovering from 100 bpm. At that level, the baby would be perfusing but it would become worrying if the situation continued. On the other hand, decelerations, meaning a drop in FHR, could mean that the baby was descending.

[42] At that point, the pursuer was in distress. She was experiencing pain. She was very vocal and shouting. That was not uncommon. Although she initially gave her consent for a vaginal examination and he had begun to carry it out, he could not complete it as she had told him to stop. His normal response would be to explain calmly and reassuringly why the vaginal examination was necessary in order to determine how to proceed with the delivery. Whether or not a caesarean section was appropriate would depend on the clinical presentation. He would take into account a patient's own views but would explain why it might be necessary to do something else.

[43] In view of the fact that the FHR had been 100 bpm for 3 minutes and that the mother was too distressed to allow a full VE, his decision was to move her to theatre, notwithstanding that the FHR did then increase to 105/110 bpm. Anaesthesia was required to make the appropriate assessment. The situation had become an emergency.

[44] Once the decision to theatre was made, a lot required to be done, as set out in the paper "Interval between decision and delivery by caesarean section - are current standards achievable?", Tuffnell et al, 2001 (7/4 of process).

[45] In relation to vaginal delivery, caesarean section carries a higher risk of morbidity, and involves risks of the possibility of tears in the uterus or bladder, excessive bleeding, injury to the bowel, infection and hysterectomy.

[46] The CTG trace was discontinued in delivery room 6 just before 00.22. It could take 2 to 3 minutes to move a patient from delivery room to theatre. In theatre it was normal to wait for contractions to pass when moving the patient from bed to operating table. CTG monitoring was re-established in theatre at 00.31. That would be done as soon as the patient was on the operating table. Dr Ogah had worked with Dr Thomas before. All others present were used to carrying out the necessary theatre procedures. At that time, in theatre, the pursuer was still distressed. She was having strong contractions and was shouting.

[47] He was referred to a number of papers on the development of the categorisation of urgency of operations involving caesarean section and research into the interval between decision to go to theatre and time of delivery: "Urgency of Caesarean Section, a new classification", Lucas et al, 2000, (6/38 of process); "Good Practice Guide No. 11", "Classification of Urgency of Caesarean Section - a Continuum of Risk", Royal College of Obstetrics and Gynaecology and the Royal College of Anaesthetists , 2010, (7/14 of process); Tuffnell et al, 2001 (supra) ; "Emergency Caesarean Section: Influences on the Decision-to-Delivery Interval", Cerbinskaite et al, 2011, (7/5 of process); "National Cross Sectional Survey to Determine Whether the Decision to Delivery Interval is Critical in Emergency Caesarean Section", Thomas et al, 2004, (7/9 of process).

[48] Dr Ogah thought that the phrase "category 1" may not have been widely used in 2004 but that, in any event, he had conveyed urgency to Dr Thomas who had understood that to be the position. He had made it plain that there was a need for a vaginal examination before the appropriate mode of delivery could be determined. The drop in FHR meant that the urgency of the situation was the equivalent of category 1.

[49] If Dr Thomas had asked "Is there time for a quick spinal?", Dr Ogah would have said "Yes" on the basis that with a FHR of 105/110 bpm the baby was perfused. In the event, Dr Ogah had written in his own retrospective note that a quick spinal was performed. He would have been scrubbed up and gowned while anaesthesia was being administered and then would have waited for the spinal block to rise and the go ahead to proceed. In Dr Ogah's view, Dr Thomas had wasted no time.

[50] The CTG trace had been re-established at 00.31 and the spinal anaesthetic was sited at 00.38 or 00.39, some 7-8 minutes after the pursuer was first on the theatre table. That was a "quick spinal".

[51] The spinal block reached the level of T7 at 00.42 and T6 at 00.45, the first incision was made at 00.47 and baby T was delivered at 00.48.

[52] The vaginal examination was carried out just before commencing the caesarean section. Since the last vaginal examination had been carried out at 23.30 (the attempt at 00.10 having been unsuccessful), there had not been a full vaginal examination for over an hour.

[53] A digital examination on arrival in theatre would not have been appropriate as the pursuer was too distressed. A full vaginal examination was necessary and she required anaesthesia for that. She would have required anaesthesia in any event, regardless of the eventual mode of delivery. Because of the risks posed by caesarean section, a vaginal delivery would always be preferable and for that spinal anaesthesia would be appropriate in order to allow the mother to assist. The need for reassessment in theatre was recognised in a paper "Rapid Sequence Spinal Anaesthesia for Category 1 Urgency Caesarean Section" Kinsella et al, 2010 (7/11 of process). In the event, the pursuer was found to be not fully dilated and accordingly delivery was completed by a caesarean section.

[54] He agreed with the following time sequence of events: decision to go to theatre at about 00.15, CTG trace in the delivery room disconnected at about 00.22, arrival in theatre at about 00.25 - 00.28, CTG reconnected in theatre at 00.31, administration of spinal anaesthesia completed at about 00.39, operation commenced at 00.45. It was his view that all necessary tasks carried out in theatre were carried out simultaneously to the extent that that was possible.

[55] In re-examination, Mr Ogah confirmed that he could not in fact recall if the pursuer had been shouting while in theatre. She had, however, been in pain and had been distressed.

[56] Dr Thomas, now a consultant obstetric anaesthetist, had been working at QMH in 2004 as an SHO. He had no subsisting recollection of the events of 19 March 2004 and was reliant therefore to a considerable extent on the medical notes to which he was referred.

[57] As the anaesthetist on call, he was contacted shortly after 00.10. The cimetidine which was administered to the pursuer was given in accordance with the hospital protocol and did not require his intervention. It was given routinely on the basis that general anaesthesia might be required in theatre.

[58] He had no recollection of a conversation with Dr Ogah outside theatre which lasted for 10-15 minutes. That would seem unlikely. He would have asked if there was time to administer a spinal anaesthetic. If the answer had been "No", he would have administered general anaesthesia. He would not have expected to be told the details of the pursuer's condition. It was not his function as an anaesthetist to interpret the CTG trace or, for example, to assess the degree of any bradycardia. He was uncertain if the terms "category 1" or "crash section" would have been in use in 2004, however, even in a case of dire urgency, he would have asked if there was time for spinal analgesia as that was the safest option for the mother. As an anaesthetist, his primary responsibility was always to the safety of the mother. It was difficult to predict how long administration of spinal anaesthesia would take, but in this case it had been straightforward involving only one pass of the needle.

[59] Once in theatre, it was necessary to confirm the obstetric plan with the patient, take a history from her and assess her, all to be documented in the anaesthetic record. In a relaxed situation, that might take 10 minutes but in an urgent situation it would be done more quickly. Nevertheless, it was necessary to obtain all relevant information and that might be delayed by the patient experiencing contractions or by distress generally.

[60] The injection time, when the anaesthetic was sited was 00.39. The spinal block had reached the level of T7 by 00.42 and T6 by 00.45. The taking of two timings was in accordance with hospital protocol at the time and was a measure of the progress of the rise of the spinal block. Urinary catheterisation would not always be tolerated with a T6 block.

[61] After taking a history, the following procedure would be necessary: monitoring connected, IV fluids prepared, scrubbing/asepsis (while that was happening), fluids running, presentation of sterile pack, antiseptic to patient's back, local anaesthetic to patient's back, preparation of spinal drugs, drape to patient's back, positioning patient, positioning of introducer, injection of anaesthetic agent, removal of syringe. The whole procedure could take up to 10 minutes.

[62] Even in cases of emergency, all of these steps were necessary although the pace could be accelerated. Even so, the appropriate standards had to be maintained. In the pursuer's case the procedure appeared to have been quick and uneventful. The interval between Dr Ogah's conversation with Dr Thomas and the transfer of the pursuer to the theatre table could have been influenced by difficulties in moving her if she was in distress and uncomfortable. That would have been likely given that she was 8 centimetres dilated at the time.

[63] Dr Thomas' preference, regardless of the degree of urgency or the mode of delivery, would be spinal anaesthesia because it was safer. His understanding was that he had been told that there was time to deliver a quick spinal anaesthetic and that was what he had done. That was appropriate where a vaginal examination was necessary to determine the mode of delivery. He did not agree that in such a situation spinal anaesthesia should only have been carried out if it could have been completed within 5 minutes. He considered 5 minutes to be an arbitrary figure. However, where there was difficulty experienced in administering a spinal anaesthetic, he would be guided by the obstetrician as to whether it should be abandoned and general anaesthesia administered instead. Even if 5 minutes was an appropriate maximum period for the administration of spinal anaesthesia, there were many tasks that had to be completed before the anaesthetist could begin, a number of which could take an indeterminate period of time and involved other people. Although some tasks would be carried out in parallel, others happened in sequence.

[64] He could not agree that it would have been appropriate to allow an obstetrician to begin a caesarean section when the spinal block had risen only to the level of T7. He considered the suggestion to be ludicrous. He would propose commencement at the level of T6. At T7, there was a strong possibility of the patient experiencing pain during the operation. It would also be wrong to begin a forceps delivery without the block height necessary for a caesarean section as events could develop which might require vaginal delivery to be abandoned. In 2004, the QMH protocol was not to commence caesarean section until the block height had reached the level of T6. As an SHO at that time it was his professional responsibility to respect that guideline.

[65] He had never heard of a procedure whereby pre-oxygenation, in preparation for a possible change to general anaesthesia, was achieved during the administration of spinal anaesthesia. Although he could envisage pre-oxygenation taking place while waiting for a spinal anaesthetic to take effect, that was not normal practice in 2004. If the administration of spinal anaesthesia was abandoned, it would take a further 6 minutes to effect general anaesthesia: 3 minutes to pre-oxygenate the patient and then a further 3 minutes following intubation.

[66] In cross-examination, he confirmed that in 2004 he was confident of his abilities in relation to both spinal and general anaesthesia and that no concern had ever been expressed about his practice.

[67] The conversation between obstetrician and anaesthetist, pre-theatre, was normally brief and of the order of 1-2 minutes. He would have asked if there was time for a "quick spinal" because Dr Ogah had in mind the possibility of a vaginal delivery depending on what the intended vaginal examination disclosed. If the patient became fully dilated and the baby's head descended, a caesarean section would be difficult. A vaginal delivery under general anaesthetic would be problematic as the patient would be asleep and unable to push. It was well documented at the time that in terms of comparative risk, spinal anaesthesia was of benefit to the mother. There was a difference of opinion within the profession as to whether general anaesthesia was quicker than spinal anaesthesia. As an SHO, his training had very definitely been that general anaesthesia was the second choice.

[68] The article by Tuffnell et al (supra) set out clearly the list of tasks which required to be completed in order to effect the administration of anaesthesia. The order of events would normally be: transfer of patient to table, attachment of FSE, history and assessment of patient (say 2 minutes), scrubbing up, donning gown and gloves etc (say 1-3 minutes), drawing up of drugs. Obtaining information from the patient could be slowed down by the effect of contractions or distress. Positioning of the patient, critical to the accurate insertion of the syringe, could also be delayed by these factors. The injection itself had to be achieved between contractions. The positioning of the needle was critical. It was critical not to puncture the spinal cord. The internal target was only about 3 millimetres wide and some 5-6 centimetres deep into the patient's back. If it were to go wrong, there was a risk of paralysis or infection such as meningitis. There was therefore a tension between the need for speed and precision.

[69] He considered an appropriate timescale to be as follows:

Transfer to table (when CTG reconnected) - 00.31;

Monitoring, taking patient history, patient examination, questions and advice (say, 2 minutes) - 00.33;

Scrub etc (say, 2-3 minutes) 00.35;

Preparing drugs (say, 2 minutes) - 00.37;

Checking that drip running and monitoring on, positioning patient (say, 2 minutes) - 00.39;

Administering injection with one pass (say, 1 minute) - 00.40;

[70] All of these steps could be delayed by the effect of contractions. The resultant interval between the patient being transferred to the theatre table and the siting of the anaesthetic agent was in fact consistent with the actual timing noted in the pursuer's case notes. That interval of about 8 minutes was reasonable. In Dr Thomas' view, in the treatment of the pursuer, no time had been wasted.

[71] The rate of development of the spinal block height had been normal. It would have been ludicrous to begin a caesarean section with a spinal block only at the level of T7. The normal level, currently, was T4, or in accordance with current guidelines, T5. At the level of T7, the patient would feel pain on deep incision to the perineum or uterus. The entry in the notes at 00.45 should be interpreted as meaning that, by that time, the pursuer had been catheterised, draped and the block (T6) was satisfactory.

[72] On being referred to the paper by Kinsella et al, 2010 (supra) and an earlier published letter by Scrutton and Kinsella, 2003 (6/37 of process), Dr Thomas' view was that the technique identified, rapid sequence spinal anaesthesia, was not widely known, and certainly not known to him, in 2004. As an SHO, he was required to follow the guidance set out at QMH. Even as a consultant now, it was a procedure he would never use. He had never done it. As to the concept of pre-oxygenating the patient while administering spinal anaesthesia, that was something he had never seen done. He had not spoken to anyone who had used that procedure. It was not being used to his knowledge in 2004. The procedure would require an additional person in theatre to hold the mask in place in order to maintain a perfect facial seal.

[73] When referred to the report by Dr David Bogod (6/34 of process), his comment was that the selection of 5 minutes as the maximum time appropriate for the administration of general anaesthetic was arbitrary and plucked from thin air. In selecting the same maximum period as appropriate for the delivery of spinal anaesthesia, Dr Bogod had failed to allow for history taking and patient assessment.

[74] Dr Thomas disagreed with Dr Bogod's statement, admittedly taken from another of the pursuer's expert witnesses, Mr Walkinshaw, that the pursuer had arrived in theatre at 00.22. If the pursuer was transferred to the theatre table by 00.31 and it had taken, say, 2 minutes to achieve that, preceded by, say, a 2 minute conversation between Dr Ogah and Dr Thomas, then she would have arrived at theatre at about 00.27. On that basis, the timing asserted by Dr Bogod was unrealistic. Dr Thomas did not accept that, again as asserted by Dr Bogod, there had been a delay in completing the spinal anaesthetic, either due to a delay in starting the procedure or because there were technical difficulties in its execution. There was nothing in the case notes which suggested that to be the case.

[75] He also disagreed with Dr Bogod's assertion that a block height at the level of T7 was an appropriate one at which to commence a caesarean section.

[76] In re-examination, he thought it unlikely that the pursuer would be transferred from bed to theatre table while he was talking to Dr Ogah. Normally the anaesthetist would be involved, at the patient's head, during the transfer.

[77] Since the CTG machine would have been reconnected as soon as the patient was on the theatre table, it was reasonable to take the time of that event (00.31) as the time when the pursuer was in fact transferred to the theatre table.

[78] In relation to rapid sequence spinal anaesthesia, Dr Thomas thought that only a full aseptic technique, departed from by the advocates of the procedure, would have been acceptable in the UK in 2004. He did not regard the procedure, even now, as normal practice and certainly considered it not to have been normal practice in 2004. If Dr Bogod had used the procedure in 2004, that may have been because, as a consultant then, he felt able to do so. As an SHO in 2004, Dr Thomas was expected to follow the relevant established guidelines.

[79] Dr Thomas felt that it was wrong to equiparate the pursuer's case with a crash section. He had been called upon for an emergency case which was not a caesarean section, but one where a spinal anaesthesia was appropriate to allow either vaginal delivery or caesarean section following on vaginal examination.

[80] Mr Stephen Walkinshaw, aged 60, was now retired, but had previously been a consultant in foetal and maternal medicine at Liverpool Womens Hospital and had held that post from 1989. He had served on several committees and working parties of the Royal College of Obstetricians and Gynaecologists and had been a member of several NICE Guidelines development groups. He had published over 70 papers on obstetric, foetal and maternal medicine. He had prepared 30-40 medico-legal reports per year. He spoke to his report dated 5 August 2011 (6/42 of process).

[81] He confirmed that the pursuer's ante-natal care had been entirely normal.

[82] Under reference to her clinical notes of 18 and 19 March 2004, he noted the FHR baseline of 170 bpm at 22.20 which he considered to be pathological in view of its three suspicious features, namely tachycardia (not of concern, but non-reassuring), reduced variability (normal, depending on how long it subsisted) and shallow variable decelerations. The decision to review, in the event of no change, had been appropriate.

[83] The decision to take FBS at 23.30 was appropriate because even an abnormal CTG trace does not necessarily mean that the baby is in distress. The FBS results had been reassuring.

[84] At 23.30, the baby's head was 2/5 palpable and at the ischael spines and the pursuer was 8 centimetres dilated. That represented rapid progress. The urge to push at 23.45 and at 00.00 was consistent with that.

[85] By 00.05 the FHR had decelerated to 100 from 180 at 23.55 and then settled at about 110 bpm. The pattern was of the FHR recovering to the baseline progressively less and less. In Mr Walkinshaw's view, this meant that the baby was not maintaining the same level of perfusion as previously since, because the heart rate had decreased, cardiac output was less than had been the case at an FHR of 180 bpm when, on the basis of the reassuring FBS results, the baby had been adequately perfused. His view was that in order to judge the adequacy of perfusion, it was necessary to have regard to the previous baseline. Perfusion was determined by cardiac output which in turn was the product of heart rate and stroke volume. The reason that the FHR had increased to a 170/180 bpm in the first place was that an FHR of that level was required to compensate for some degree of hypoxia. The fact that T was unable to maintain that rate meant that hypoxia would result. The change in FHR was as important as the actual rate itself. In his view, although Dr Ogah could not have known the cause of the drop in heart rate, he ought to have recognised that the baby could not sustain its previous well status if the pattern continued. Where bradycardia fell below 100 bpm, the level of damage which a baby would sustain as a result would depend on the passage of time. A baby could withstand 10-15 minutes of acute profound asphyxia before damage was caused. A lesser degree of perfusion could result in a different level of damage over a longer period.

[86] Mr Walkinshaw did not find it surprising that at that time, around 00.10, the pursuer was unable to tolerate a vaginal examination. He considered the plan to take the pursuer to theatre to be the appropriate decision.

[87] On the basis that cimetidine was administered at 00.15, he took the timing of the decision to deliver to be about 00.13-00.14. He agreed that the disconnection of the CTG trace, which would be the last thing done before moving the pursuer from the delivery room, had occurred just before 00.22. He estimated the transfer time from delivery room to theatre to be of the order of 1 1/2 minutes. In his opinion, the finding on delivery of "a loose nuchal cord" was probably the explanation for the drop in FHR recorded on the CTG trace at around midnight.

[88] Mr Walkinshaw considered that the pursuer's care up until the point of the decision to take her to theatre was entirely satisfactory. The decision to move her to theatre had been correct and was made at the appropriate time. He agreed that as a multiparous woman, the pursuer's labour had the potential to progress very rapidly. However in his view, in these circumstances, a caesarean section had been the only option.

[89] He considered that a "quick spinal" as soon as the pursuer was in theatre, to permit a vaginal examination in order to determine if the pursuer was fully dilated would have been appropriate.

[90] In 2004, a vaginal examination was reasonable and to be anticipated because if there had been progress in labour and the baby's head had descended, a caesarean section could be dangerous. However in this case, Mr Walkinshaw's view was that Dr Ogah knew that the pursuer had not been fully dilated and so should have thought that rapid progress was unlikely. He thought that a quick vaginal examination could have been conducted while the anaesthetist was getting ready to administer anaesthesia. He disagreed with the view that a vaginal examination could not have taken place without analgesia. In his view, all that Dr Ogah had needed to know was whether the pursuer was fully dilated. If in that situation it had been found that she was, then he would have envisaged the possibility of an immediate forceps delivery without anaesthetic. He agreed that to have required a vaginal examination in theatre was entirely reasonable and fair.

[91] Mr Walkinshaw thought that the interval between the pursuer's arrival in theatre, which he fixed at 00.21, and the siting of the spinal anaesthetic at 00.39 was too long in the context of an urgent situation and that a "rapid spinal" could have been effected more quickly. The period was too long for a crash caesarean section.

[92] Even taking the timing of arrival in theatre to be 00.23, the period from then until the reconnection of the CTG trace, 8 minutes later, was unacceptable for a crash section. The obstetrician should have driven the pace of events. Dr Ogah should have communicated that there was urgency. He thought that if Dr Ogah had indicated that he would examine the pursuer only when there was adequate anaesthesia in place, that would not have communicated the necessary urgency. In Mr Walkinshaw's view, Dr Ogah should have indicated that he would conduct the vaginal examination while Dr Thomas was getting scrubbed. He considered that virtually all obstetricians believe that general anaesthesia is quicker than spinal anaesthesia. On that basis he thought that Dr Ogah's agreement to a "quick spinal" was not the appropriate decision.

[93] He considered that Dr Thomas, despite working in the capacity of an SHO, should be judged as though he was a registrar, on the basis that he was working on his own without a supervisor present.

[94] He accepted that, on the information available, it was difficult to fix the timings of some particular events such as the time of arrival in theatre.

[95] As regards the accepted audit standards for cases of category 1 caesarean section, he agreed that it had been thought reasonable to encourage emergency delivery within a decision -to-delivery interval ("DDI") of 30 minutes, that in 2001 in the UK as a whole there was barely 50% compliance with that standard, that taking longer than 30 minutes was not necessarily ascribable to poor practice and that, as audits are necessarily retrospective, it would be wrong to draw inferences in relation to the pursuer's case simply because of the existence of the audit standard. It had to be borne in mind that some category 1 cases were more urgent than others. The standard was really to deliver as quickly as possible, while maintaining safety.

[96] He remained of the view that either Dr Ogah had not adequately communicated the urgency of the situation or that the anaesthetist had failed to acknowledge the urgency and had taken longer than he should have for a "quick spinal".

[97] He considered that from the moment the operation commenced, the delivery by caesarean section could not have been achieved more quickly. However he was critical of Dr Ogah for leaving the vaginal examination until just before the commencement of the operation. He considered that not to be normal and usual practice. Despite that, he subsequently agreed in cross-examination that no delay had been caused as a result.

[98] In cross-examination Mr Walkinshaw accepted (1) that for the mother an obstetric emergency was always distressing and that if she was angry, possibly shouting, that would make matters more difficult so that procedures might take longer; (2) that during labour problems could develop which were not always obvious; (3) that it was wrong to form a judgment of professional competence based on hindsight informed by a poor outcome; (4) that, as an SHO, Dr Ogah was bound by the protocols of the unit in which he worked; (5) that in cases such as the pursuer's there was always a tension between the interests of the foetus and those of the mother; (6) that there was a tension between the requirements for speed and the need to maintain safety; and (7) that, in such cases, decisions must be taken quickly and in challenging circumstances.

[99] In relation to the NICE Guidelines 2001, (supra), Mr Walkinshaw agreed that appropriate steps had been taken in relation to the management of the pursuer's labour. When the CTG trace appeared to be pathological, conservative measures, hydration and repositioning had been put in place and FBS taken. When the FBS results were found to be reassuring the trace was to be reviewed in an hour with possible repeat FBS. Had it was not been possible to repeat FBS, delivery was to be expedited. All of that had been done in the pursuer's case and was consistent with the guidelines.

[100] He agreed that one effect of diamorphine would be to reduce variability as recorded on the CTG trace.

[101] He agreed that an increase in FHR to 170-180 bpm could be caused by maternal distress or a rise in the mother's temperature. There was no direct relationship between tachycardia shown on a CTG trace and acidosis. In that respect, the CTG was not a sensitive tool.

[102] He agreed that given the indication of progress in labour from 21.50 to 00.00, the midwives would have been expected by then to be preparing for delivery.

[103] He agreed that when called at 00.10, Dr Ogah had been correct to attempt to examine the pursuer and had made the correct decision to proceed to theatre.

[104] Mr Walkinshaw considered, notwithstanding that in terms of the NICE guidelines an FHR of 100-160 bpm is reassuring, that Dr Ogah should have considered that the FHR of 110 bpm, and not recovering, was not reassuring because it had been preceded by a drop from 180 bpm.

[105] He accepted that because the pursuer had withdrawn her consent, Dr Ogah could not determine whether she was fully dilated, that there were signs of rapid progress of labour, and that the overall picture presented by the CTG trace had been confusing and uncertain.

[106] He accepted that the description of a patient as uncooperative should be taken to mean that she did not wish to cooperate with the procedures suggested. He praised Dr Ogah for his reluctance to record in the notes that the pursuer was uncooperative. He considered that to indicate that Dr Ogah was not being self-defensive.

[107] Mr Walkinshaw was surprised that in addition to consent for caesarean section, consent for vaginal delivery which was a different procedure carrying different risks, had not also been recorded on the consent form. He conceded that nothing which Dr Ogah had done subsequently was inconsistent with what, on the evidence, he had said he had in mind at the time.

[108] He accepted that when interpreting a CTG trace, it is important to take into account not the whole trace viewed with hindsight but only that part of the trace seen by the clinician at the relevant time. There was research which clearly indicated that the analysis of CTG traces was affected by knowledge of the eventual outcome. He accepted that lack of variability in a CTG trace can be normal provided it does not subsist for more than 40 minutes. He also accepted that severe bradycardia should be considered to be indicated by an FHR of less than 90 bpm and that there had been no prolonged severe bradycardia in the pursuer's case. He accepted that on the basis that the CTG in the delivery room was disconnected at about 00.22 and the CTG in theatre connected at 00.31, arrival in theatre could have been between 00.25 and 00.28, but maintained his view that such a transfer period was too long.

[109] He accepted that in theatre the pursuer's transfer from bed to operating table could have been delayed by her contractions and by the fact that she was in considerable distress.

[110] Notwithstanding that no such view was expressed in his report, when giving evidence Mr Walkinshaw expressed the opinion that Dr Ogah should have attempted a vaginal examination immediately on arrival in theatre. Mr Walkinshaw thought that if a limited digital examination had been possible and had revealed that the pursuer was not fully dilated, Dr Ogah should have proceeded directly to caesarean section. If Dr Thomas had asked if there was time for a "quick spinal", Dr Ogah should have said "No" and insisted on general anaesthesia which would have been quicker. He maintained that the only non-negligent course for Dr Ogah, where the pursuer had not been fully dilated, would have been caesarean section with general anaesthesia.

[111] Against the background of the pursuer's withdrawal of consent to a full vaginal examination in the delivery room, Mr Walkinshaw thought that Dr Ogah should have attempted to persuade her to allow a limited examination, which failing he should have proceeded directly to caesarean section. When informed of the pursuer's response in theatre to the suggestion of a vaginal examination ("What does he not understand?"), Mr Walkinshaw's view was that at that stage it was unlikely that she would have tolerated another vaginal examination without analgesia and unlikely she would have tolerated a vaginal examination immediately on arrival in theatre.

[112] Mr Walkinshaw conceded that it could have been possible that the pursuer could have progressed to being fully dilated by the time anaesthesia had been effected, but his view was that Dr Ogah should not have assumed that would happen. Mr Walkinshaw thought there had been no likelihood of progress from the pursuer's previous status of 8 centimetres dilated and that any ordinarily competent practitioner would have proceeded on that assumption. In his opinion, Dr Ogah had been duty bound to assume there would be no progress from 8 centimetres dilatation.

[113] Mr Walkinshaw assessed the pursuer's case as having been of category 1 urgency and for that reason a vaginal examination should have been carried out on arrival in theatre and a decision as to mode of delivery made then. That was usual practice and anything else should be considered negligent. If on arrival the pursuer had declined a vaginal examination the only option would have been caesarean section.

[114] Mr Walkinshaw agreed that in accordance with the NICE guidelines an FHR of 110 bpm is not an apparent terminal bradycardia. That would be indicated by an FHR of 60 bpm. The CTG trace in this case was not therefore an indication of terminal bradycardia. However, in his view, by 00.31, the reassuring FBS results previously obtained were no longer of relevance.

[115] Notwithstanding the apparent discrepancy with other entries in the clinical notes and the CTG trace, Mr Walkinshaw did not accept that the recorded timing in the notes of arrival in theatre, as being 00.20, was wrong.

[116] Mr Walkinshaw maintained that the combination of features in the CTG trace was suggestive of hypoxic stress. At the time of the FBS, there had been tachycardia but the positive results indicated no hypoxia and that the baby was therefore coping. He conceded that at that time it would have been reasonable to assume that delivery was likely before the need for a second set of FBS. He conceded that Dr Ogah had recognised that the drop from 180 to 100 bpm was not recovering, that he had appropriately recognised that there was urgency and that, on the basis of Dr Ogah's evidence, which Mr Walkinshaw had heard, he had adequately communicated that urgency to Dr Thomas.

[117] Mr Walkinshaw agreed that a 30 minute DDI was not achievable in all cases and that in about 2004 not even half of UK units achieved it. He agreed that mere failure to meet the standard was not an indicator of negligence. He accepted that the identification of the necessary tasks and the complexity of the procedure, all as set out in the paper by Tuffnell et al (supra) was accurate. He agreed that there had been no obstetric delay after 00.22.

[118] When referred to the report by Professor Walker (7/2 of process), Mr Walkinshaw maintained his views. To that extent he disagreed with Professor Walker.

[119] Mr Walkinshaw agreed that there had been a difficult and confusing situation at 00.10, that there had been a background of reassuring FBS results but concerns about the CTG trace, that in light of the pursuer's withdrawal of consent to a vaginal examination Dr Ogah had no complete information, that he had needed information in order to determine whether vaginal delivery or caesarean section was appropriate (although in Mr Walkinshaw's view he should have opted for caesarean section), that, on Dr Ogah's evidence, Dr Ogah had adequately communicated the position to Dr Thomas, that Dr Ogah had been entitled to assume that in theatre the pursuer would not tolerate a vaginal examination without analgesia, that the benefit of spinal analgesia was that it was preferable for vaginal delivery which was the safest and quickest mode of delivery where there was full dilatation; that the CTG trace had never indicated terminal bradycardia and that the timing of the whole procedure had been typical of units in the UK in 2004.

[120] Although Mr Walkinshaw was critical of Dr Ogah in that, in his view, there should have been a digital examination on arrival and Dr Ogah should not have accepted the offer of a "quick spinal", neither of these criticisms had been expressed in his report.

[121] In re-examination Mr Walkinshaw agreed that whether to opt for spinal analgesia or general analgesia was a clinical judgment but maintained that Dr Ogah should have requested general anaesthesia after a brief examination of the pursuer. He considered that not to do so was negligent.

[122] Dr David Bogod was a consultant anaesthetist at Nottingham University Hospital NHS Trust. He was aged 56 and had held that post since 1989. He spoke to his curriculum vitae (6/35 of process). He was the author of numerous peer reviewed publications and over 16 years had provided over 700 medico-legal reports. He had previously been engaged by other hospital trusts as an external assessor in competence and capability investigations. He spoke to his report dated 12 March 2012 (6/34 of process).

[123] Under reference to the anaesthetic records, Dr Bogod noted that there had been no contra-indicator for general anaesthesia and that spinal anaesthesia had been sited at 00.38. He considered the speed of the spinal block rise had been within normal limits.

[124] He confirmed that, in 2004, there was a strong presumption in favour of spinal anaesthesia because of the perceived risks inherent in general anaesthesia. However where emergency caesarean section was concerned, a further fact to be taken into account was the time taken from the start of the anaesthetic process to the patient being ready for surgery. In Dr Bogod's view, by using general anaesthesia, that period could be as short as 5 minutes to which one further minute should be added to allow the taking of an appropriate history and assessment of the patient, making a total of 6 minutes in all. Three minutes of that period were required for adequate pre-oxygenation of the patient.

[125] As an alternative, spinal analgesia could be achieved, using an accelerated procedure known as "rapid sequence spinal anaesthesia", within 5 minutes with an additional 1 minute for history and assessment, making, again, 6 minutes in all. This procedure involved shortening the normal process by reducing the time for scrubbing, preparation of the skin, draping and local anaesthetic to the skin and by envisaging the possibility of failure to achieve spinal anaesthesia after a single attempt by including pre-oxygenation during the process, thereby allowing for a completed change to effective general anaesthesia within a further 2-3 minutes. Dr Bogod's view was that only a small minority of anaesthetists would employ the procedure, a critical requirement of which involved the practitioner having sufficient confidence to "cut corners" in relation to what otherwise would be described as established standards in the delivery of spinal anaesthesia. His view was that if a practitioner was not prepared to accelerate the process in that way, the proper option was to opt for general anaesthesia from the start. Since, on his assessment, the pursuer's delivery had been an acute emergency caesarean section, rapid sequence spinal anaesthesia or general anaesthesia would have been preferable to a "quick spinal".

[126] Dr Thomas' description of the range of timing he would anticipate for completion of spinal anaesthesia had not involved the rapid sequence spinal technique. Dr Bogod accepted that an SHO, in 2004, would not have been in a position to "cut corners" in circumstances where the established norm, contrary to the position in rapid sequence spinal technique, was that scrubbing up would be expected to take 2-3 minutes.

[127] Although it could be said that views in the literature on the subject were not settled, Dr Bogod thought that for the purposes of an emergency caesarean section, particularly in an anaesthetist's early career, general anaesthesia would be quicker than spinal anaesthesia. A "difficult spinal" would always take longer than the administration of general anaesthesia, and the speed of the rise of an effective spinal block could vary. In determining the degree of urgency, the anaesthetist had to rely on the obstetrician to define how much time was available. In 2004, not all units used the term "category 1". Dr Bogod thought the term "crash section" was in use in 2004 but that, in any event, the meaning of a phrase such as "we need to get the baby out now" could not be mistaken.

[128] In circumstances where the obstetrician indicated that there could be a vaginal delivery or caesarean section depending on the outcome of a vaginal examination with analgesia, Dr Bogod thought that would suggest that the situation was not so urgent that there was a need to proceed directly to caesarean section because the mother might be found on examination to be fully dilated which in turn would push the emphasis towards spinal analgesia being the more appropriate mode.

[129] Dr Bogod thought that if in relation to the question "Is there time for a quick spinal?", the answer was "No", then the anaesthetist should deliver general anaesthesia. An anaesthetist would always prefer a spinal block but should be swayed to general anaesthesia by extreme urgency. On the other hand, if vaginal delivery could be attempted, spinal analgesia would be preferable.

[130] In relation to rapid sequence spinal anaesthesia, Dr Bogod was referred to the published letter by Scrutton and Kinsella, 2003 (supra) and the subsequent paper by Kinsella et al, 2010 (supra). The essence of the technique was to anticipate failure of the spinal injection by employing simultaneous pre-oxygenation in readiness for general anaesthesia. Minimal asepsis, using only gloves, without a gown or mask, was employed and surgery was commenced at an early stage spinal block at a level of more than or equal to T10. The whole process should take 5 minutes from the start of pre-oxygenation and should be abandoned in favour of general anaesthesia at the point where effective general anaesthesia, if administered in the first place, would have been achieved.

[131] Dr Bogod considered that had the technique been employed from arrival in theatre at 00.22, spinal anaesthetic would have been sited by 00.27 with adequate block (T7) in place at 00.30. Dr Bogod was not critical of Dr Thomas for his view that T7 was an inappropriately low level of spinal block at which to commence surgery, on the basis that an SHO should not be criticised for following established protocols. However, he did maintain his view that if Dr Thomas had not been prepared to introduce flexibility into the procedure, or lacked the confidence to do so, he should not have attempted spinal anaesthesia but rather should have inclined towards general anaesthesia.

[132] On the basis of this timing, allowing a further 3 minutes from incision to delivery produced a time of delivery of 00.33. Allowing a further minute for a vaginal examination in advance produced an overall timing for birth at 00.34.

[133] If general anaesthesia had been employed, Dr Bogod's view was that T would have been delivered some 9 minutes after 00.22 (allowing 6 minutes for history, examination, pre-oxygenation and delivery of effective anaesthesia and allowing 3 minutes from incision to delivery), that is at 00.31.

[134] If spinal analgesia had been abandoned after 5 minutes in the event of a single pass being ineffective, and where 2 minutes of pre-oxygenation had taken place during the attempt, with the taking of history and examination carried out in advance, he would have allowed 1 minute more to complete pre-oxygenation and 2 minutes more to achieve full anaesthetic effect, that is 3 minutes in total from the abandonment of the spinal injection (00.30). Delivery would therefore have taken place at 00.33.

[135] Dr Bogod considered that in the pursuer's case the provision of spinal analgesia had in fact been relatively quick. The principal delay had been between the time of arrival in theatre and the siting of the spinal anaesthetic at 00.38, which amounted in total to 16 minutes. That was unacceptable for a category 1 caesarean section. If any of that delay was due to Dr Thomas, that was unacceptable. If the delay was due to the period before the anaesthetic procedure began, then Dr Bogod was not critical of Dr Thomas specifically if he had no opportunity to begin his procedures before he did. Rather, he was critical of the unit team as a whole.

[136] In cross-examination, he agreed that, in 2004, an SHO's practice was governed by guidelines and protocols with little ability to depart from them. He also agreed that in order to offer a view on competency it was critical to have a clear understanding of what was anticipated as the theatre procedure to be employed at the time.

[137] On a review of the entries in the clinical notes between 22.30 and 00.00, he agreed that the most probable interpretation was that birth was going to be imminent.

[138] He accepted that where a vaginal examination is necessary and the patient withdraws consent because of distress, the obstetrician is presented with a difficult situation.

[139] On the basis that Dr Ogah's intention was to determine the mode of delivery following a vaginal examination with analgesia in theatre, Dr Bogod recognised the situation as "examine under anaesthesia: query caesarean section". In that situation, Dr Bogod considered that Dr Thomas's question: "Is there time for a quick spinal?" to have been good practice at the time and that in fact a quick spinal had been delivered.

[140] Dr Bogod accepted that the point at which Dr Thomas could have begun the anaesthetic procedure was 00.31 when the CTG in theatre was connected as that was when the pursuer was first on the operating table and that, on the basis that the spinal anaesthetic was sited at 00.38, 7 minutes had elapsed in total. He maintained, however, that he would allow only 1 minute for history and examination and 5 more minutes for the procedure itself, that is 6 minutes in total. If assessment and the taking of a history had been possible during patient transfer on to the operating table, only 5 minutes would have elapsed from reconnection of the CTG. On that basis, he was therefore critical of Dr Thomas to the extent of 2 minutes delay.

[141] For the purposes of a quick scrub, as advocated by Kinsella, 15 seconds should be allowed. This was in contrast to the proper scrub (3 minutes) which would be expected of an SHO in 2004. Dr Bogod reiterated that only a confident practitioner should contemplate rapid sequence spinal anaesthesia. In a category 1 case, others should use general anaesthesia.

[142] Dr Bogod accepted, however, that where there was still a possibility of a vaginal delivery and a need for urgent vaginal examination under anaesthesia, that would tip the balance towards spinal analgesia. Dr Thomas had delivered spinal analgesia between 00.31-00.38, including taking the patient's history, scrubbing, drawing up drugs, taking consent and positioning the patient, throughout all of which the pursuer had been continuing to have contractions.

[143] Dr Bogod thought that a vaginal examination could have been carried out at the same time as urinary catheterisation when the spinal block was at the level of T7. Under reference to a paper "A Survey of How British Obstetric Anaesthetists Test Regional Anaesthesia Before Caesarean Section" Bourne et al, 1997 (6/36 of process,) Dr Bogod agreed that, in 2004, T4 level was the default spinal block height generally desired for elective surgery. To that extent, Dr Thomas had been flexible in authorising the first incision when the spinal block had reached the level of T6.

[144] Insofar as the anaesthetic record was concerned, Dr Bogod considered Dr Thomas' notes to be good, with nothing controversial in them and suggesting a confident and sensible performance. He agreed that an anaesthetist would always sway towards spinal anaesthesia if there was the possibility of a vaginal delivery. He also agreed that rapid sequence spinal analgesia remained a controversial topic. He agreed that where the case was categorised as "examine under anaesthesia: query caesarean section", that was not an indicator of a category 1 or crash caesarean section.

[145] Mrs Susanne McGeachie was a midwife aged 46 years. In 2004 she was known as Susanne Ryan and worked as a midwife at QMH. She did not recall the precise events of 18 and 19 March 2004 but she did recall meeting the pursuer.

[146] She confirmed having made the entries in the pursuer's clinical notes (7/1 of process) at 22.30 and subsequently. The entry at 22.30 in relation to diamorphine was in part a recognition of the earlier entry at 22.15. In fact she had prescribed diamorphine at 22.35. The pursuer had also received paracetamol at 23.00 to help reduce her temperature.

[147] The pursuer's previous two labours had been relatively quick - one of 1 hour 48 minutes and the second of 6 hours. As at 23.30 the pursuer had made good progress and was 8 centimetres dilated. The baby's head was 2/5 palpable and at the ischael spines. The expectation was that full dilatation would occur quite quickly. Mrs McGeachie did not recall the pursuer saying that she felt something wasn't right or that she had pain in her back, although that was not abnormal. She didn't recall Dr Ogah throwing a FBS capillary tube over his shoulder and couldn't imagine him doing that. Nor could she recall having a disagreement with him as to the extent of the pursuer's dilatation.

[148] At 23.45, the pursuer had felt like pushing, at 23.55 there had been a heavy show and at 00.00 there was a further urge to push. These signs were indicators that labour was progressing and suggested that the pursuer was in the late stages of labour and becoming fully dilated. Preparations for delivery would have been put in place. Dr Ogah was called shortly after 00.05 because of decelerations, not recovering, on the CTG trace. Decelerations can be associated with the baby's head descending but here there had been no recovery to the baseline. At 00.00 Mrs McGeachie had made the entry that the pursuer was "distressed +++" and requesting a caesarean section. In order for the entry to be expressed in that way there must have been an unusual level of distress. The pursuer must have been very upset.

[149] Mrs McGeachie did not remember any particular atmosphere in the delivery room. Although the pursuer was distressed, that was normal in labour. It was anticipated, in that context, that women would become more vocal.

[150] Mrs McGeachie had completed the theatre checklist and disconnected the CTG before moving the pursuer's bed from the delivery room. She had also inserted a Venflon catheter and had taken blood samples. Cimetidine was given at 00.15 after the decision to go to theatre had been made. She acknowledged the tasks which required to be completed as set out in the paper by Tuffnell et al, 2001 (supra). She would have been involved in that. In her experience, it was often necessary to move equipment out of the room into the corridor in order to allow the bed to be taken from the room. To move the bed from the delivery room to theatre would have taken "a couple of minutes anyway". In theatre, the transfer from bed to table could take 1-2 minutes and could be delayed by the patient experiencing contractions.

[151] She thought, having disconnected the delivery room CTG at about 00.22, that the pursuer would have arrived in theatre between 00.27-00.28 and would then have been transferred to the table, allowing the theatre CTG to be connected at 00.31. It was not her recollection that people were standing about doing nothing. She had assisted Dr Thomas in positioning the pursuer appropriately for injection. She thought that if the pursuer had been experiencing contractions then the anaesthetist might have delayed taking a history from her until she was on the table. Mrs McGeachie had been Dr Ogah's scrub nurse. There had been no complacency in theatre. Everything had been done as it should have been done.

[152] As to the time of arrival in theatre, she felt that the entry of 00.20 in the case notes could not be accurate. She relied, in preference, on the timing of the disconnection of the CTG in the delivery room. She had no reason to doubt the timings of subsequent entries in the notes at 00.38, 00.45 and 00.47. She thought a period of 33 minutes from preparation for theatre (00.15) until delivery (00.48) was completely acceptable.

[153] In cross-examination, she confirmed, in relation to the heavy show at 23.55, that, although that might be expected at an early stage, it can happen throughout labour and could be taken as an indicator of progress.

[154] She had no recollection of Dr Ogah saying to the pursuer "You are getting a caesarean section because you need one, not because you want one". She thought that the entry at 00.20 was inconsistent with the other timings in the notes. She thought that to move the bed out of the room and along the corridor would not take just 2 minutes. It would have taken longer than that.

[155] She conceded that it was possible that the pursuer might have been less distressed once going to theatre because she could have been relieved that her delivery would be happening soon, but she had no actual recollection of that. She also had no recollection of any interaction between the pursuer and Dr Ogah or between herself and the pursuer. She agreed that, in theatre, Dr Thomas could have begun speaking to the pursuer before the CTG trace was connected.

[156] In re-examination, she thought that the entry "OP" in the notes was more consistent with short hand for the term "on palpation" rather than "occipital posterior". That interpretation was consistent with the rest of the entry. In fact, the subsequent entry expressly stated that the position of the baby had not been determined.

[157] She confirmed her recollection that it was she who had been unable to carry out a vaginal examination at 00.10 because the pursuer was too distressed. She thought that Dr Ogah must also have failed subsequently to carry out a full vaginal examination in the delivery room in a separate attempt.

[158] She agreed that, allowing for the disconnection of the CTG in the delivery room at 00.22, allowing 1 minute to unplug the bed and clear out machinery from the room, allowing 2 minutes to move the bed down the corridor to theatre, allowing 1 minute to negotiate the bed into theatre, allowing 1 minute for delay caused by contractions, and allowing 1 minute for the transfer of the pursuer from the delivery room bed to the operating table, a total of 6 minutes transit from delivery to theatre would have meant that she was on the operating table at 00.28. There would then have been a further 3 minutes during which the CTG was connected.

[159] Dr Audrey Chalmers was aged 46 and worked as a consultant obstetric anaesthetist at Glasgow Royal Infirmary. In 2004 she was working as a specialist registrar at the Western Infirmary Glasgow but with responsibility for QMH as a duty team member providing a second line of cover in obstetric anaesthesia. On 18 and 19 March 2004 she was the person whom Dr Thomas would call should the need have arisen. In fact, although her name appeared on the anaesthetic records it was unlikely that she had been present in QMH on the night in question. In submissions, it was confirmed that no issue arose in that respect.

[160] She explained that the interval between decision to operate and arrival in theatre was dependent on the degree of perceived urgency. Given the floor plan of QMH, it would not have been possible to move a bed from delivery room 6 to the theatre in which T was delivered in less than 3 minutes.

[161] Before leaving the delivery room a number of things would have required to be done, all of which would have taken time, viz: the reason that it was necessary to go to theatre would have been explained to the patient (say, 30 seconds-5 minutes), the theatre checklist would have been completed (say, 1 1/2 minutes), cimetidine would have been administered, the fact that the pursuer would have been labouring and having contractions could have caused delay (say, 30 seconds), the bed would have been disconnected, the CTG would have been disconnected and the entonox machine would have been disconnected. Thereafter, the bed would have been manoeuvred out of the room, down the corridor and into theatre. In real urgency that could take 5-7 minutes. It could easily have taken longer. Once in theatre, moving the patient from bed to table could have taken 2 minutes. Typically, the period from decision to operate to positioning the patient on the theatre table could take 10 minutes. She thought the period from 00.22-00.31 was quick.

[162] She thought that Dr Thomas would probably have begun talking to the pursuer as soon as she arrived in theatre, but would have begun to take her history once she was on the table. The protocol at the time required him to explain a list of side effects, take a history of allergies etc, make an intubation assessment, assess the range of the patient's neck movement, explain the procedure, check blood pressure and position the patient. Positioning the patient could take 3-4 minutes.

[163] The spinal block in this case had risen quickly, reaching the level of T7 in 3 minutes and of T6 in a further 3 minutes. Normally surgery is authorised when the spinal block reaches the level of T4. Here it had been authorised at the level of T6. It was appropriate to allow urinary catheterisation when the spinal block had reached the level of T7.

[164] Dr Chalmers view was that no part of aseptic preparation should be skipped. It could take 3 1/2 - 4 minutes. On returning to the patient, the skin must be cleaned, allowing the cleaning agent to dry by evaporation over 2-3 minutes. Meanwhile, the operating department practitioner would be setting out syringes, drawing up drugs, setting out the introducer and spinal needles and generally preparing the trolley. When dry, the skin is anaesthetised with lidocaine. Then the introducer is inserted and lastly the spinal syringe. The target is small, not less than 6 centimetres deep and possibly up to 15 centimetres deep.

[165] She thought the period from 00.31, when the pursuer was transferred to the theatre table, to 00.38-00.39, when the spinal anaesthetic was sited, was not long. She also thought the overall period from decision at 00.15 to delivery at 00.48 (33 minutes) was not long.

[166] Although she was aware of the paper by Kinsella et al, on rapid sequence spinal analgesia, she had never heard of pre-oxygenation for general anaesthesia taking place during the siting of a spinal anaesthetic. In 2004 she would not have expected Dr Thomas, as an SHO, to have known of rapid sequence spinal analgesia. It was not a procedure which was taught in Glasgow in 2004. If Dr Thomas had attempted it, he would have been told it was not acceptable practice. She had a high regard for Dr Thomas who had been her trainee and whom she considered to be very competent, diligent, careful and reliable.

[167] Dr Chalmers could not agree that in the circumstances of the pursuer's labour, 6 minutes was the maximum acceptable period from the beginning of taking the patient's history to the siting of the spinal anaesthetic. It would not be possible to accommodate a 3 minute scrub time within that period. She thought it would have been a ridiculous decision to abandon spinal anaesthesia after 6 minutes and change to general anaesthesia. In the present case there had been no difficulty with the competency of the spinal anaesthesia. There had been no reason to discontinue it. She could, however, envisage a situation where, after multiple failures to site the anaesthetic agent, it might be appropriate to turn to general anaesthesia, but not in the circumstances of this case. She had seen nothing in the clinical notes which caused her to be concerned about anything Dr Thomas had done.

[168] In cross-examination, she agreed that, while in an obstetric setting it was normal to stop talking to a patient during contractions, it was normal for patients to have contractions and staff were accustomed to that.

[169] She accepted that in the situation of a crash caesarean section, the taking of history and the explanation of risks and benefits would happen more quickly and possibly even before arrival in theatre. Where general anaesthesia was being administered in that setting, the anaesthetist would have 3 minutes during pre-oxygenation when, while holding the face mask, he could speak to the patient. Where an emergency spinal block was required, there was still a requirement for the taking of history and a medical assessment but it could be done while other things were happening. Taking a full history, making an examination and allowing for not talking during contractions, as training required, could take 7 minutes. She considered that Dr Thomas' view that, in urgency, he could take a history and carry out an examination in 1 or 2 minutes was an underestimate. She accepted that, in urgency, the process could be shortened but felt that 5 minutes was necessary, although she conceded that it could be done while, for example, the patient was being positioned.

[170] She did not think that 1-2 minutes was a realistic time in which to move a bed from the delivery room to theatre.

[171] Dr Chalmers confirmed that Dr Thomas would have been taught in Glasgow that T4 level was the ideal spinal block height at which to authorise the commencement of surgery, but that T6 had been the appropriate level in this case. The decision had to be taken having regard to the speed of the spreading of the block. In this case, the spinal block had reached the level of T7 in 3 minutes. At that speed of spread, the anaesthetist could advise the commencement of urinary catheterisation when it reached the level of T7, but not surgical incision. The process of catheterisation and preparation of the abdomen for incision could take 3 minutes, by which time the spinal block would have reached the level of T6.

[172] Her view was that in order to become properly aseptic, 2 minutes of contact with a sterilisation agent should be allowed plus, say, 45 seconds for the agent to dry, that is 2 minutes 45 seconds in total. She regarded Dr Thomas' estimate of scrubbing up and donning gown, mask and gloves in 1-2 minutes as corner cutting. Although the risks of infection in siting spinal anaesthesia are statistically low, the consequences can be catastrophic when cerebrospinal fluid is compromised. For that reason, if there was a perceived risk to the life of the mother, and a need for immediate anaesthesia, the anaesthetist should simply administer general anaesthesia.

[173] She accepted that in urgency it would be acceptable to save time by wiping dry the patient's back with a sterile sponge.

[174] She considered the positioning of the patient to be crucial. It was preferable to spend 3-4 minutes achieving the correct position in order to avoid losing time later by the need to make repeated attempts at injection. The process took time because when a woman is near full dilatation and has the urge to push, she will find it difficult to sit still.

[175] She agreed with Dr Thomas that the process of placing the introducer, introducing the syringe and positioning the needle for injection could all be achieved in about 1 minute.

[176] Dr Chalmers thought the interval between arrival in theatre at 00.20 and the connection of CTG at 00.31 was inconsistent with urgency. If the arrival had been at 00.24, she would still have been of the same view.

[177] She considered it reasonable to allow at least 15 minutes for the administration of spinal analgesia. Contrary to Dr Bogod's view, she thought that no-one could be confident of achieving it from a standing start in only 6 minutes. She did not agree that, after 6 minutes, spinal analgesia should have been abandoned in preference for general anaesthesia. She confirmed that rapid sequence spinal anaesthesia, involving a "no-touch" technique, minimal sterility and surgical incision when the spinal block was at the level of T10, was something which would not have been discussed between herself and Dr Thomas in 2004. She disagreed with Dr Bogod's view that it was an appropriate technique where there was an immediate risk to the life of the mother. In Glasgow, in 2004, the current teaching was that in that situation the appropriate course was immediate general anaesthesia. Even if pre-oxygenation during the administration of spinal analgesia was noted in the professional literature in 2004, it was simply not being taught as a technique in Glasgow at that time. In the course of re-examination she confirmed that she herself had never seen the technique performed.

[178] In re-examination she confirmed her view that, from the notes, everything had been done as it ought to have been done and quickly. Her impression from what she knew was that the pursuer's case had not been dealt with as a crash caesarean section.

[179] She confirmed that it was recognised that during contractions, the patient cannot absorb information because of pain and nor can she respond. When that was happening, effective communication was impossible.

[180] On her reading of the notes, catheterisation had been completed by 00.45, by which time the spinal block height had reached the level of T6. It was reasonable to infer that catheterisation had begun when the spinal block had reached the level of T7. Since surgery could begin when it reached the level of T6, no time had therefore been lost in that regard.

[181] Dr Chalmers confirmed that in her view spinal analgesia was not appropriate where there was risk to the life of the mother. On the basis that Dr Ogah had told Dr Thomas that there was a need for a quick delivery, that there was bradycardia, and that he was considering caesarean section but wanted to examine the pursuer first in order to exclude vaginal delivery, she would not have expected Dr Thomas to come to the view that the pursuer's life was at risk. In these circumstances she would have expected him to administer spinal analgesia.

[182] She thought that given the level of urgency of the situation, where the CTG in theatre had been connected at 00.31 and allowing 3 minutes to transfer the pursuer from bed to table, it would be reasonable to assume that arrival in theatre had occurred at 00.28. Even if arrival had happened at 00.25, allowing 5 minutes for the transfer from bed to table would not have been unreasonable.

[183] Dr David Levy, aged 49, was a consultant anaesthetist who worked for Nottingham University Hospital NHS Trust. He had held that post since 1995. His curriculum vitae (7/16 of process) disclosed a special interest in obstetric analgesia, recent publications in that field and his position on the editorial boards of a number of respected journals. He spoke to his report (7/10 of process).

[184] Dr Levy confirmed that in 2004, as set out in his report, there were guidelines in place, under the auspices of the Association of Anaesthetists of Great Britain & Ireland and the Obstetric Anaesthetists Association, which suggested that in cases of foetal emergency the time from informing the anaesthetist to the start of operative delivery should not exceed 30 minutes. He would have expected Dr Thomas as an SHO in Glasgow in 2004 to have been aware of that. The period could be a lesser one in cases where there was a risk to life such as where there was profound foetal bradycardia, that is, where there was an FHR of 60 bpm.

[185] The focus, from an aesthetic perspective, was always the safety of the mother, but undue risk might result if there was undue urgency. For the mother, an emergency crash caesarean section with general anaesthesia was the aesthetic procedure which involved most risk. His view was that the default procedure should be spinal anaesthesia unless there was a life threatening risk to mother or baby or general anaesthesia was specifically mandated as being highly desirable.

[186] In the context of the conversation between Dr Ogah and Dr Thomas, Dr Levy would have expected the question "Is there time for a quick spinal?" to be posed. On the basis that there was no sustained bradycardia and that a vaginal examination was required to determine if vaginal delivery was possible, there was no dire, unequivocal need to deliver the baby immediately and so he would have expected Dr Thomas to adopt the default position of spinal analgesia. In general, where there was a requirement for vaginal examination, that situation would point towards spinal analgesia being appropriate because, where that mode of delivery was indicated, the mother would be unable to cooperate by assisting a vaginal delivery while under general anaesthesia. Taking into account that this was a third baby and that the FBS results had been reassuring, there was every chance that the baby would have been deliverable vaginally in theatre and a spinal anaesthetic would have facilitated that. In such a situation, it was not uncommon for a multiparous woman to become fully dilated by the time she arrived in theatre.

[187] Although a new categorisation of urgency of caesarean section (emergency, urgent, scheduled, election) had been published by Lucas et al in 2000 (supra), it had not been adopted universally for another 5 years. It was important to note that the categorisation only applied when the decision for caesarean section had been made. That had not occurred in the pursuer's case until after the vaginal examination under spinal anaesthesia, that is shortly before 00.47.

[188] Dr Levy considered that in this case a "quick spinal" had been delivered in the sense that a delay free injection was achieved with no difficulty and the spinal block had risen appropriately. He thought that spinal anaesthesia could be administered in 5 minutes by an experienced anaesthetist from the point when the patient's skin was frozen. He did not think it could take a lesser time because of the need for meticulous attention. It would be unreasonable to suggest that if not achieved in 5 minutes, spinal anaesthesia must be abandoned and general anaesthesia administered instead. The administration of spinal anaesthesia might be almost complete and pre-oxygenation and administration of general anaesthesia could result in further delay.

[189] His view was that the technique of pre-oxygenation during the administration of spinal anaesthesia had never entered the general practice of anaesthesia. It had been used in Bristol but had not been widely adopted. Under reference to the published letter by Scrutton and Kinsella, 2003 (supra) and the paper by Kinsella et al, 2010 (supra), he described the technique of rapid sequence spinal anaesthesia as "quirky". As the pursuer's case was never a category 1 caesarean section, the technique was not applicable. He would not have expected Dr Thomas to have known of the procedure in 2004. It had never been accepted in the wider anaesthetic community. In relation to the paper by Kinsella et al, 2010, he noted that, in the last paragraph, the summary suggested that where the technique was used a block that was adequate to start surgery was established in 6-8 minutes. In the pursuer's case, that had been achieved in 8 minutes.

[190] He thought that it was reasonable to allow 10 minutes for the administration of spinal anaesthesia, particularly if the woman was in difficulty. He accepted that in extreme urgency there was a need to act appropriately, for example by reducing the time to scrub up, by taking a shorter history and generally progressing as fast as possible, but it was not his impression that the pursuer's labour had been that sort of case. There was nothing in the pursuer's case that suggested a need to cut corners. In general, he was not in favour of any type of shortened procedure which reduced proper asepsis.

[191] He considered that waiting 3 minutes for the spinal block to rise from the level of T7 to T6 was appropriate. He would have criticised the approach if there had been a persistently low FHR of about 60 bpm or any other serious deterioration was brought to the anaesthetist's attention, but that had not been the case here. A consultant might authorise surgery at a sub-optimal spinal block level, such as T7, but an SHO would not be obliged to. The textbook level would be T4 or, still controversially, T5. He would expect an SHO, in 2004, to have authorised surgery when the spinal block reached the level of T6. Prior to then, with the block at level T7, it was appropriate to allow catheterisation. That allowed progress to be made while the spinal block was rising and, in addition, the raising of the pursuer's legs would in part accelerate the speed of spinal block spread.

[192] On the basis that Dr Thomas took 8-9 minutes from the time of transfer to theatre table until the spinal anaesthetic was sited, Dr Levy considered the timing to have been appropriate and compatible with the administration of spinal anaesthesia which was not problematic. Dr Levy could not fault Dr Thomas. In his opinion, he did not fall short of the standard to be expected of an SHO in 2004 and neither did he fall short of the standard to be expected of a registrar or a consultant.

[193] Under reference to the papers by Tuffnell et al, 2001 (supra) , Cerbisnskite et al, 2011 (supra) and Thomas et al, 2004 (supra) , he thought that the 30 minute DDI was, possibly an arbitrary figure, possibly still controversial, which was not achieved by many units in the UK.

[194] Under reference to "Good Practice Standard No 11" (supra), he confirmed that categories of urgency were not clear cut and distinct but rather overlapped each other and applied only when caesarean section was definitely in prospect. He considered that the description "examine under anaesthesia: query caesarean section" was clear and was an accurate description of the pursuer's case. He was firmly of the view that general anaesthesia was not appropriate unless there was definitely to be a caesarean section.

[195] In cross-examination, Dr Levy explained that timings in the clinical notes, and the entries relating to them, are often written retrospectively, particularly in situations of urgency. To that extent, some timings would be best estimates after the event.

[196] In his view, this was not a case where there had been sustained, unrelenting, profound foetal bradycardia (FHR 60 bpm) without recovery. It did not fall within the category of case where, in terms of the 1998 guidance cited in his report, the relevant time should have been less than 30 minutes. These guidelines pre-dated category 1 categorisation. Category 1 indicated that a caesarean section was required because there was an immediate risk to life. In circumstances where a multiparous woman was progressing quickly and might require an urgent caesarean section but was to be examined first, the degree of urgency interpreted by the anaesthetist would be tempered by the fact that she might yet become fully dilated in which case spinal anaesthesia would be indicated.

[197] He explained that his range of timing: "00.25-00.28, into theatre, prepared for spinal, i.v. fluids", as set out in his report, included completion after arrival of necessary ancillary tasks. From that, point spinal analgesia had been administered within 10 minutes.

[198] He thought that Dr Thomas could have begun speaking to the pursuer on her arrival in theatre. On that basis, given urgency, and following the timings suggested by Dr Thomas of 1-2 minutes for examination, a brief history and explanation of risks and benefits, 1-3 minutes for scrub up and donning gown, mask and gloves, 1-2 minutes for preparation, drawing up drugs, checking patient position and using cleaning agent, and 1 minute for injection, he considered that there was nothing untoward about the resulting period of 4-8 minutes. Such corner cutting as was necessary in that context was not unacceptable.

[199] Under reference to Dr Bogod's report (6/34 of process) Dr Levy maintained, contrary to Dr Bogod's assumption, that there had been no defined need for a caesarean section in the pursuer's case. For so long as there was an even chance of a vaginal delivery, general anaesthesia was not the preferred option. He agreed that there had been a need for expedited spinal anaesthesia, in the sense of one administered with all due care and attention but without wasting any time, which could take 6 minutes in the hands of an experienced practitioner in ideal circumstances. Dr Bogod had been wrong to proceed on the basis of Mr Walkinshaw's opinion that the pursuer's caesarean section should have been categorised as category 1. He disagreed with an alternative interpretation of the procedure which was anticipated in theatre to the effect that caesarean section was indicated unless on vaginal examination the pursuer was fully dilated. That was inconsistent with "examine under anaesthesia: query caesarean section". He could not envisage a scenario in which, in such circumstances, general anaesthesia would be appropriate.

[200] He did not agree that the paper by Kinsella et al, 2010 (supra), was a formalisation of existing practice. Rather, it was a formalisation of a limited practice in Bristol. In that context, he agreed that there was a small minority of practitioners who would administer rapid sequence spinal anaesthesia. However, he maintained that pre-oxygenation during the administration of spinal anaesthesia was not practiced in the country as a whole. Rapid sequence spinal anaesthesia had never entered mainstream practice. It should not be considered to have been within the practice of an ordinarily competent anaesthetist in 2004. He was not aware of any recognition of it in medical textbooks.

[201] Dr Levy could not agree with timings suggested by Dr Bogod based on surgical incision when the spinal block was at the level of T7. An SHO in 2004 would not have contemplated authorisation of surgical incision at such a limited spinal block height.

[202] He agreed that, on the basis that there was no technical difficulty in the administration of the spinal anaesthesia, any delay could only be in relation to the period before it was commenced. He would have expected Dr Thomas to have begun his procedures from the moment when the pursuer was on the table. As to the acceptability of the passage of time between arrival in theatre and that point, that would depend on what had actually been happening in theatre during that time. It was not possible to say in abstract terms what was an acceptable period and what was not.

[203] Although he disagreed that the pursuer's delivery had been such a case, he agreed with Dr Bogod that if spinal anaesthesia was administered in a category 1 caesarean section case, it should take no longer than 6 minutes. His own view, however, was that in such a case, general anaesthesia should be administered.

[204] He considered that if an anaesthetist was told that there was time for a "quick spinal", that meant there was about 10 minutes within which to begin taking a history and ending with the siting of the anaesthetic agent. "Is there time for a quick spinal?" really meant: "Will the urgency of the situation allow it?".

[205] In re-examination, he confirmed that he would rely on the entry on the trace, noting discontinuation of the delivery room CTG at 00.22, as being more accurate and reliable than the entry in the clinical notes marking arrival in theatre at 00.20. On that basis, he did not consider the 9 minute interval to 00.31 to be unusually long. On the basis of arrival in theatre between 00.25-00.28, the period from then until reconnection of the CTG, at 00.31, was not unacceptable. In passing, he commented that if the situation had been truly considered to be a category 1 caesarean section, the CTG in theatre would not have been attached as the patient would by then have been committed to an abdominal delivery. Since it was in fact attached, the pursuer's case was not being treated as a category 1 caesarean section.

[206] Dr Levy considered that although it might be desirable to achieve an accelerated administration of spinal analgesia within 6 minutes, the profession acknowledged that there was a range as to how long might be deemed an acceptable period. The administration of anaesthesia might take longer through no fault of the anaesthetist. He remained of the view that Dr Thomas' performance was consistent with that of an ordinarily competent SHO.

[207] Dr Bernard Heidemann, aged 49, was a consultant anaesthetist at Edinburgh Royal Infirmary, a post he had held since 2003. His CV was no. 7/32 of process. His sub-speciality interests had included obstetric anaesthesia since 1993. He had a particular interest in obstetric emergencies which had begun in 1995 and continued. He had extensive experience in the training of obstetric anaesthetists.

[208] Dr Heidemann spoke to his report dated 16 May 2013 (7/26 of process). In relation to the classification of urgency of caesarean section most widely used in 2004 for non-elective cases, there were two types: (1) where it was necessary to deliver the baby "as soon as possible" (the equivalent in current parlance of category 1) in which case general anaesthesia would have been the most common choice by anaesthetists, and (2) where the baby required to be delivered "soon", where spinal anaesthesia would have been indicated. In his view, general anaesthesia was only appropriate in cases of extreme urgency and definite caesarean section. The classification set out in the paper by Lucas et al, 2000, (supra), was widely known in 2004 but not widely used. Under reference to "Good Practice No 11", 2010, (supra), it was now recognised that there is a range of risk in any category such that, for example, some category 1 cases may be more urgent than others. The continuum of risk in any one category was now recognised.

[209] He explained that the DDI is only relevant where a definite decision has been made for a category 1 caesarean section. The 30 minute period did not apply where there was a range of delivery options. Here there was no evidence that the case had been identified as a category 1 caesarean section. If it had been, there would not have been a vaginal examination in theatre.

[210] He confirmed that in Scotland in 2004, the general preference amongst anaesthetists was for spinal anaesthesia.

[211] Inconsistencies in timings in the clinical notes were to be explained by the fact that notes are often entered retrospectively. That is a common practice in obstetrics where events tended to happen quickly. Often the noted time would be one memorised or confirmed with colleagues after the event. In his view, the timings on the CTG traces and in the notes appeared to be consistent, with the exception of the entry at 00.20 in the notes.

[212] He considered that the pursuer had probably arrived in theatre at about 00.25, the CTG in the delivery room having been disconnected 3 minutes earlier. It was important to note that members of the medical profession generally tend to underestimate the passage of time. That was apparent from research in which Dr Heidemann had been personally involved.

[213] He considered that a period of 13 minutes from arrival in theatre at 00.25 until the siting of spinal analgesia at 00.38 was reasonable in circumstances where the pursuer had been noted to be "distressed +++". That was because distress tended to prevent the patient from complying with requests made of her. The 7 minute period between 00.31, which was the earliest Dr Thomas could have begun his procedures, and 00.38 was also a reasonable one in these circumstances. The effect of contractions was to make the patient wish to straighten her back which was the opposite of what the anaesthetist required. Patients also had difficulty absorbing information during contractions and so there was a recommendation not to speak at that time.

[214] In 2004, the relevant guidelines reflected a consistent recommendation for a full surgical scrub lasting about 3 minutes. An SHO would not be expected to deviate from that.

[215] He considered the conversation between Dr Ogah and Dr Thomas, as described by Dr Ogah, to be what he would have expected and to represent a good standard of care.

[216] He considered that the anaesthetic record reflected an urgent case. The notes were abbreviated. No time appeared to have been wasted.

[217] As he put it, the CTG trace is taken as a surrogate for foetal well-being, but it is not specific as regards foetal problems. That is because other factors can influence the CTG trace. FBS analysis is much more sensitive as regards foetal distress. So far as foetal bradycardia was concerned, his view was that an FHR of less than 100 bpm would be a matter of concern. He thought that an SHO anaesthetist would be entitled to assume that where there had been foetal bradycardia, if the obstetrician was not seeking a category 1 caesarean section, then he, the obstetrician, had been reassured by the FBS results.

[218] He thought it reasonable to assume that the decision to go to theatre was not taken before 00.15 when cimetidine was administered. On that basis, the DDI was 33 minutes. He calculated that if arrival in theatre had been at 00.25 and general anaesthesia administered immediately, T's delivery would have occurred earlier than was in fact the case. In most cases, however, a DDI of 30 minutes was not achievable. On the other hand, the relevant epidemiology suggested that, after 36 weeks, foetal outcome was not affected by delay.

[219] He confirmed that, in his view, in all the circumstances of the pursuer's case, spinal analgesia had been appropriate and that there appeared to have been no technical difficulties experienced in siting it.

[220] Under reference to the published letter by Scrutton and Kinsella, 2003, (supra), and the paper by Kinsella et al, 2010 (supra), Dr Heidemann stated that even today he would not expect the technique of rapid sequence spinal anaesthesia to be used by an SHO of Dr Thomas' experience in 2004. A more experienced practitioner might know about it and might use it depending on his supervisor's advice. In 2004, he would not have expected Dr Thomas to have known about the 2003 letter, which he still considered to be controversial, especially in relation to the issue of reduced asepsis. The Royal College of Anaesthetists recommended full asepsis when administering spinal anaesthesia. He also confirmed that rapid sequence spinal anaesthesia required an additional skilled assistant who could hold the mask in place during pre-oxygenation while the anaesthetist administered spinal anaesthesia. In this case there did not appear to have been an additional skilled assistant in theatre.

[221] In Dr Heidemann's opinion, no caesarean section should ordinarily be commenced before the spinal block had reached the level of T4 although, in cases of urgency, authority, with the exercise of discretion, could be given at T6. In 2004, the prevailing teaching was that surgery should not commence when the spinal block was at the level of T7. In that respect, Dr Thomas had acted in accordance with current practice as at 2004.

[222] In cross-examination, Dr Heidemann agreed that if in an urgent case spinal anaesthesia was to be administered, it should be administered as quickly as possible but he considered that it must also be administered according to guidance and training. In relation to Dr Thomas' estimate of 4-8 minutes for the whole procedure, Dr Heidemann felt that taking history, carrying out an examination, assessing neck movement, explaining risks and benefits and obtaining consent could not be done in less than 2 minutes. He maintained that an estimate of 1-3 minutes for achieving asepsis was not acceptable. A standard surgical hand wash took 3 minutes. He accepted that scrubbing is routinely shortened but confirmed that, in 2004, an SHO would be taught that 3 minutes was required. To shorten the period required for asepsis was effectively to put the needs of the foetus above those of the mother. That was contrary to the anaesthetist's primary duty. He did not approve of a 2 minute period. He reiterated his perception that most clinical practitioners generally underestimated timings. He did not approve of drying the patient's back with a sterile sponge. Rather, the antiseptic should be allowed to dry naturally in order to provide a sterile field. In all, he considered that the upper end of Dr Thomas' range was achievable where the procedure was done at its absolute quickest and where no difficulties were encountered such as in relation to positioning of the patient or contractions.

[223] In relation to the DDI standard of 30 minutes, he confirmed that the value of the period was only apparent for auditing purposes. There was no scientific evidence behind it and it did not assist in assessing competency of practice in any case. Whether in some urgent cases the period should have been less than 30 minutes was only answerable with hindsight. A decision as to the timing of any delivery could not be made in advance.

[224] On the basis of arrival in theatre at 00.20, Dr Heidemann considered that a period of 11 minutes to connect the CTG at 00.31 was not compatible with the need for an urgent delivery. On the basis of arrival at 00.24, he considered a period of 7 minutes to be similarly not compatible. In his view it was possible to achieve the transfer from bed to table in about 4 minutes. He would have expected an anaesthetist to start taking the patient's history from the time of arrival in theatre.

[225] Dr Heidemann viewed foetal bradycardia as being indicated by an FHR of less than 100 bpm. In assessing its severity, it was necessary to know whether there was consistency throughout any period or fluctuations with recovery between dips.

[226] He maintained his view that in the pursuer's case no decision had been taken in the delivery room as to the mode of delivery. There had been no decision that the case was a category 1 caesarean section requiring general anaesthesia. The term category 1 only had relevance when a decision for a caesarean section had been made.

[227] He agreed that if general anaesthesia had been administered in the pursuer's case, T would have been delivered earlier. Thus, assuming arrival in theatre at 00.25: 4 minutes to transfer the pursuer from bed to table, 4 minutes to achieve urinary catheterisation, 1 minute for aseptic preparation, 2 minutes for pre-oxygenation, 30 seconds for induction of anaesthesia, 1 minute to achieve neuromuscular block, 30 seconds to insert an endotracheal tube; a total of 13 minutes in all, indicating readiness for surgery at 00.38 and delivery at, say, 00.39.

[228] In relation to Dr Bogod's report (6/34 of process), Dr Heidemann agreed that spinal anaesthesia could be administered in 6 minutes using the technique of rapid sequence spinal anaesthesia. Any time saved by using that technique was only possible by shortening the time for asepsis and allowing only one attempt at injection. He agreed that, in 2004, a practitioner should only have attempted the technique if confident of completing it within 6 minutes, but thought it unlikely that an SHO would have achieved that. Instead, in circumstances where otherwise rapid sequence spinal anaesthesia would have been adopted, an SHO should have administered immediate general anaesthesia. He considered that Dr Bogod's period of 6 minutes would not be achieved by an SHO. In 2004, the maximum period for administration of spinal anaesthesia where it required to be done as quickly as possible would have been something less than 10 minutes. He considered Dr Thomas' performance of 8-9 minutes to be reasonable.

[229] He confirmed that where a vaginal examination is sought by the obstetrician, that fact would indicate that there was a lesser degree of urgency than if the case was category 1, because it was recognised that a vaginal examination would necessarily add time to the process.

[230] He confirmed that in order to pre-oxygenate the patient during the administration of rapid sequence spinal anaesthesia an additional person would be required. The operating department practitioner would be unable to fulfil that function as he/she would be fully occupied in assisting the anaesthetist prior to injection. If following that, the ODP were to adopt the role of the additional person, there would be no equivalent saving as anticipated by rapid sequence spinal anaesthesia, since pre-oxygenation takes 3 minutes whereas the administration of the injection in one pass should only take 1 minute. Spinal anaesthesia would therefore be administered before the pre-oxygenation was completed. Dr Heidemann's view was that, in 2004, pre-oxygenation during the application of spinal anaesthesia was practiced only by a very small minority and that an SHO would not have been advised to do it.

[231] He maintained his disagreement with Dr Bogod that surgery could commence when the spinal block was at the level of T7. It would be wrong to assume that if the level of T7 was reached in 3 minutes, the spinal block would continue to rise at that rate. In fact, spinal block rise was unpredictable and did not display any uniform pattern.

[232] He agreed that in the pursuer's case there had been no technical difficulty in achieving spinal anaesthesia. On that basis, he agreed that if there had been any delay it must have occurred prior to the commencement of the anaesthetic procedure. He agreed that the 16 minute interval between 00.22, the time of disconnection of the delivery room CTG, and 00.38, the time of siting of the spinal anaesthesia, was excessive in the context of a category 1 caesarean section identified from the outset, but disagreed that this had been such a case. He reiterated that the time actually taken by Dr Thomas to administer spinal anaesthesia, between 00.31 and 00.38 was not excessive.

[233] Dr Heidemann did not agree that where a vaginal examination was required and where in the event of the patient being not fully dilated a caesarean section was to follow, the administration of spinal anaesthesia by a SHO should be abandoned after 6 minutes. He considered that the time scale of 6 minutes was not achievable by an SHO because of the need for compliance with the recommendation for full asepsis. He considered that in such circumstances, abandonment after 8 minutes would be appropriate.

[234] In re-examination, he confirmed that, in 2004, an SHO would be required to carry out a full aseptic scrub prior to administering spinal anaesthesia. That was what was taught at Edinburgh at the time.

[235] Dr Heidemann considered that Dr Bogod's timings, in relation to how the pursuer's labour might have been managed differently, were over-optimistic. He felt that adding up time intervals for individual elements of procedures was misleading. Timings were notoriously ill judged and the better approach was to consider the actual time taken in a particular case. Timings, including DDI, could not be predicted in advance because the progress of procedures was dependent on the particular circumstances of the patient concerned.

[236] He thought that where the theatre CTG was connected at 00.31, and where 4 minutes were allowed for patient transfer from bed to table, then it was reasonable to take the resultant time of 00.27 as the time of arrival in theatre. He accepted that it would be common practice for the anaesthetist to be at the head of the table during transfer from bed to table and to begin taking a history only once transfer was complete.

[237] He maintained his opinion that Dr Thomas had performed to the standard expected of an SHO of his experience and that he had met the standard of care required in 2004.

[238] Professor James Walker, aged 61, was Professor of Obstetrics and Gynaecology at St James University Hospital, Leeds. He was senior vice president of the Royal College of Obstetricians and Gynaecologists and had acted as obstetrics advisor to the National Patient Survey Agency. He was a fellow of several learned medical societies and acted as referee for a number of professional journals. The list of his published work extended to some 220 papers. He remained active in labour ward practice. His curriculum vitae was no 7/15 of process.

[239] He spoke to his report (7/2 of process). He would normally expect labour in a first pregnancy to last 8 to 12 hours. Both of the pursuer's previous labours, in his view, had been shorter than average. He thought it reasonable to infer that where two previous labours had been normal and quick, the same could be expected again.

[240] He could not agree that the noted time of 00.20, for arrival in theatre, was correct. Accepting the time of disconnection of the delivery room CTG (00.22), he would allow 3 minutes for the transfer to theatre. He therefore fixed the time of arrival at theatre as 00.25.

[241] He considered that when taking the decision to go to theatre, Dr Ogah did not yet know what the mode of delivery would be because he did not yet know the information required to make the decision. Given the progress of labour up until midnight, Dr Ogah was entitled to anticipate that the pursuer would become fully dilated by about 00.30 and that once she was anaesthetised he could confirm the delivery mode on the basis of the information to become apparent on vaginal examination. He could not have known in advance because he had been unable to carry out a vaginal examination. That was the only way to determine the delivery mode. He was not in a position to say that the pursuer was fully dilated and so could not decide on caesarean section because he could not know that was the best thing to do. If he had opted for a "crash section" and the baby's head had descended, that would have made for a very difficult delivery. The risks for the baby would have included a fractured skull or neck, and for the mother a torn bladder or uterus. Such situations made for difficult decisions. In this case, no decision could have been made while the patient was without analgesia. He considered it mandatory in the circumstances to carry out a vaginal examination in order to determine the best mode of delivery.

[242] He thought that, given the reassuring FBS results at about 23.40, it was correct to allow labour to continue at that time with review and repeat FBS after 60 minutes. That was consistent with the NICE Intra-Partum Care Guidelines. Because it lacked specificity, the fact that a CTG trace appeared to be non-reassuring did not mean that events taking place were necessarily bad. He considered that notwithstanding the drop in FHR after midnight, from 180 to 100 bpm, the rise to 110 bpm at 00.19 was reassuring in terms of the 2001 NICE Guidelines (supra).

[243] He considered that the 9 minute period for transfer from delivery room (00.21) to the theatre table (00.31) was within the normal range and was actually quite a short period. He would have envisaged the pursuer arriving in theatre some 3 minutes in advance of 00.31, at 00.28.

[244] Given that the FHR had risen to 110, he considered that Dr Ogah's positive response to the question "Is there time for a quick spinal?" was correct. If the FHR had been 60 bpm, on the other hand, he would have expected the response to be "No, proceed straight to general anaesthesia". Given the known circumstances, it was probable that there would be a vaginal delivery. Even a change of position, such as from bed to operating table, can accelerate delivery by helping the baby's head to descend.

[245] Professor Walker affirmed his opinion as stated in his report, viz: the pursuer's ante-natal period had been uneventful, there had been no suspicion of problems in her pregnancy, the wandering baseline and decelerations on the CTG trace were not typical of anything, it was reasonable to expect progress in labour to be rapid, the pursuer had been in the active phase of labour, she had delivered two babies previously with short labour timescales, it was reasonable to expect increased dilatation at the rate of 1 centimetre per hour but the pursuer had been becoming more dilated at a rate of 2 centimetres per hour, the baby's head was at the ischael spines, FBS results had been normal, Dr Ogah could reasonably have expected the pursuer to be fully dilated at 00.30, and it was unlikely that a baby would have become hypoxic within the period to that time.

[246] Professor Walker disagreed with the contention that a drop in FHR from 170/180 bpm to 100/110 bpm meant that the baby was no longer adequately perfused. He had not previously heard of the concept and knew of no evidence to support it. There was no evidence that tachycardia maintained perfusion. Stroke volume was not a constant and depended on the gap between contractions. As a theory it was contrary to the NICE Guidelines which implied that at an FHR of 100-110 bpm foetal perfusion was adequate, and at odds with the score of 2 points which would be ascribed applying the APGAR score.

[247] He thought that the pursuer's comment "What is it that he doesn't understand?", consistent with her assessment as "distressed +++", betrayed a common misunderstanding that caesarean section was the easy option and the best way to get delivery over with. Dr Ogah had required to decide the best option but could not do so without a full vaginal examination. If vaginal delivery was possible at all, the appropriate decision was to allow that to happen.

[248] He thought it would not be unreasonable to abandon the administration of spinal anaesthesia after 6 minutes and to opt for general anaesthesia, unless the injection had been sited and all that was required was to wait for it to take effect. He considered that a "crash section" was not appropriate in the pursuer's case as the FHR had recovered to 100/110 and it could be expected that the baby was stable. There was nothing to suggest that the baby was experiencing terminal bradycardia (60 bpm) or was becoming terminally hypoxic. It was a reasonable assumption that vaginal delivery was going to be possible. Spinal analgesia had been the safest and most sensible option.

[249] He considered that the appropriate time for a vaginal examination, as here, was just before caesarean section. That had to be the point of decision as the situation could change rapidly. Under reference to the papers by Tuffnell et al, 2001 (supra) and Cerbinskaite et al, 2001 (supra,) Professor Walker did not consider the cited studies to be relevant to the pursuer's case as no definite decision for caesarean section had been taken. In any event, the achieved DDI of 33 minutes (00.25-00.48) was an acceptable timescale. It was not within the 30 minute standard, but was within normal practice which contemplated a period of 40-45 minutes. He considered that it would be wrong to infer negligence simply because the DDI was greater than 30 minutes.

[250] In summary, Professor Walker considered that Dr Ogah had acted appropriately throughout.

[251] In cross-examination, he confirmed his view that, as at about 23.40, any pathological aspect of the CTG trace had been trumped by the reassuring FBS results. CTG was only a screening test, whereas FBS analysis was a diagnostic tool. He agreed that looking as the trace as a whole, there had been room for concern, but he interpreted the end of the trace taken in the delivery room as reassuring because the FHR appeared to be recovering. He accepted that the evidence of step-like deceleration after midnight indicated that a significant event had occurred, but the FHR had been raised at the end of the delivery room trace and remained raised when the CTG trace in theatre commenced at 00.31. At that level, the FHR had been reasonable.

[252] He maintained that it was wrong to infer that the baby's heart rate had been increased in order to correct inadequate perfusion. Since cardiac output was the product of heart rate and stroke volume it was wrong to assume that the only way to increase cardiac output was by increasing heart rate. A baby's cardiac output could be increased by a rise in heart rate but not to any significant effect. It did not follow that because the heart rate dropped, cardiac output must diminish, because stroke volume could increase. It could not be assumed that stroke volume would remain constant as heart rate decreased. There was no evidence that a decreased foetal heart rate meant there must be reduced cardiac output. If the theory was correct it would mean that the basis for the established NICE guidelines was wrong.

[253] He thought a limited vaginal examination would not have been appropriate because, although if the pursuer was not fully dilated that might become apparent, it would not reveal if she was fully dilated. To determine that, the obstetrician had to feel around the baby's head. For that, the patient would require analgesia. He did not agree that because the pursuer would not tolerate a vaginal examination without analgesia, the correct course was for immediate caesarean section. Rather, the appropriate course was to use analgesia to carry out a proper assessment.

[254] He agreed that if there had been concern that the baby was not perfusing, then a "crash section" would have been appropriate, but maintained that there had been no basis to conclude that to be the case from the available findings.

[255] He agreed that if the entry at 00.20, marking arrival at theatre, was correct, then the 11 minute period until 00.31, when the trace was connected, was not consistent with category 1 urgency. However he did not place reliance on the entry at 00.20. On the basis of the trace having been disconnected in the delivery room at 00.22, he maintained his view that the pursuer would have arrived in theatre at 00.25 and considered the 6 minute interval to 00.31 to be consistent with urgency given the tasks which had to be undertaken.

[256] Under reference to a paper "The Decision-to-Delivery Interval for Emergency Caesarean Section: Is 30 minutes a realistic target?", Helmy et al, 2002 (7/31 of process), Professor Walker expressed some concern over the lack of certainty in categorisation of urgency. He felt that there was a risk that categorisation of any particular case could be influenced by knowledge of the outcome. Generally, a case would not be considered to have been a non-emergency if the outcome was known to be bad. He pointed out that whereas categorisation after the event would take account of all facts known throughout, categorisation at the relevant time had to be judged on only what was known at that time.

[257] When considering the timing of the pursuer's case, Professor Walker thought that the fact that procedures took as long as they did should not necessarily be taken as a reason to impute fault. His view was that anaesthetists will generally do everything as quickly as they can and that the duration of the interval from arrival in theatre to the commencement of the anaesthetic procedures would depend on the circumstances of the case. He considered that the interval in the pursuer's case was not outwith the normal range given the events which had been happening on that night.

[258] In re-examination, he maintained his position as regards any inference to be drawn from a drop in foetal heart rate. Foetal heart rate could rise as a consequence of drivers on the sympathetic nervous system, such as adrenaline. Foetal or maternal distress, maternal anxiety or a rise in maternal temperature could all have similar effect. In this case, the FBS results revealed that tachycardia was not in fact an indicator of hypoxia. Thus, although Dr Ogah could not know why there was tachycardia, he would have known that it was not because of hypoxia. In any event, to suggest that a downward change in FHR could signify hypoxia ran contrary to the NICE Guidelines. An FHR of 100 bpm was the threshold. Only below that figure should there be concern that the level of bradycardia would result in the baby not properly perfusing. That was in accordance with the NICE Guidelines which, in 2004, a registrar would have been expected to follow.

[259] He maintained his position that any criticism levelled should be based on what was known to the doctor at the relevant time. That applied to analysis of the CTG trace in relation to which a retrospective analysis against the background of a known outcome was likely to be different from a prospective analysis. The 30 minute DDI figure should be considered as an audit tool only. It was an optimum aspirational standard which was recognised to be achieved by the majority but not everyone. Failure to meet the standard did not provide a basis or an assumption that something had gone wrong. He considered it important to recognise that in assessing the duration of particular intervals of time in relation to procedures carried out, it was necessary to recognise that there might be a cumulative effect of small difficulties, not noted as individual events in the clinical notes and therefore subsequently unknown, which were significant.

Submissions for the parties

[260] Counsel for each party helpfully provided written submissions. Those for the pursuer form no. 28 of process. Those for the defenders form no. 29 of process. Supplementary submissions for the defenders in response to those for the pursuer form no. 30 of process. I do not repeat these submissions in detail but the arguments set out in them are reflected in what follows. I have taken the written submissions, together with those made at the bar by senior counsel, fully into account.

Submissions for the pursuer

[261] It was submitted that the degree of urgency which ought to have been ascribed to the pursuer's labour, once the decision to proceed to theatre was taken, was equivalent to what today would be conveyed in the term "category 1 caesarean section" where there was imminent threat to the life of mother or foetus. Support for that proposition was to be found from Mr Ogah's own perception of the situation and the nature of the variations recorded on the CTG traces. The discussion which took place between Dr Ogah and Dr Thomas as to the operating procedure to be adopted should have reflected that urgency as informed by the view which Dr Ogah ought to have held, namely that the baby was not being adequately perfused.

[262] The most likely timing of events was that the decision to proceed to theatre was taken at about 0013, the pursuer left the delivery room at 0022, she arrived in theatre at 0023 and the CTG in theatre was connected at 0031. The interval between 0023 and 0031 was unexplained and not compatible with the urgency of the situation. The same was true of the interval between arrival in theatre and the siting of the spinal anaesthetic. Given these timings, it was to be inferred that either Dr Ogah had failed to communicate the urgency of the situation or, if he did, Dr Thomas had failed to act upon it.

[263] Dr Thomas should have commenced the administration of spinal analgesia prior to 0031, taken six minutes to achieve it, and authorised surgery when the spinal block was at the level of T7. Had he done so T's delivery would have occurred 13-16 minutes earlier than was the case. Alternatively, general anaesthesia should have been administered, in which case T's delivery would have occurred three minutes earlier than that.

[264] It was submitted that if a vaginal examination had been carried out on arrival at theatre, it would have disclosed that the pursuer was not fully dilated, caesarean section would have been indicated and general anaesthesia administered immediately. General anaesthesia would have been achieved within six minutes, and T would have been delivered three minutes later, at 0033. Alternatively, the administration of spinal analgesia should have been achieved within six minutes of starting to take a patient history and the first surgical incision authorised when the spinal block had reached the level of T7. In that event, T would have been delivered at 0036. Even if, in these circumstances, eight minutes was allowed for the administration of spinal analgesia and the first incision authorised when the spinal block was at the level of T6, T would have been delivered at 0041. Even without an examination on arrival, but allowing a discussion between Dr Ogah and Dr Thomas lasting one minute, followed by the administration of spinal analgesia on this same basis, delivery would have occurred at the same time, 0041.

[265] It was submitted that the literature concerned with the 30 minute audit standards referable to category 1 caesarean section should in some respects be treated with caution and should not be considered as evidence of normal practice to the effect that in any particular case of urgency that is the appropriate period.

[266] Senior counsel made detailed submissions on the evidence in respect of each of these propositions under reference to criticisms of the evidence elicited for the defenders. I was urged to prefer the evidence for the pursuer, to answer the first agreed issue in the affirmative and to find in terms of the second agreed issue that, but for negligent delay, T would have been delivered not later than 0033.

[277] In that regard, I was referred to Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192, at paragraph 77 where, in applying the well-known test set out in Hunter v Hanley 1955 SC 200, the court, in the context of a claim arising out of circumstances in which no normal medical practice was proved to exist, stated:

"The true test when establishing negligence in diagnosis of treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

I was referred to Bolitho v City & Hackney Health Authority 1998 AC 232 at 241G‑242B and 243A‑C and to Loveday v Renton 1990 1 MED LR 117 at 125 for the proposition that it is not enough that the opinion of medical experts as to whether diagnosis and treatment accorded with sound medical practice is genuinely held; rather it must be responsible, reasonable, respectable, defensible on a logical basis and of sufficient weight.

Submissions for the defenders

[278] In relation to the appropriate test of medical negligence, senior counsel relied on Hunter v Hanley (supra) at 204-6, as affirmed in Gerrard at paragraph 77 (supra). The test is to be applied on the basis of scientific and technical standards at the time of the negligence, not some anachronistic standard applied in the present day (Roe v Ministry of Health 1954 2 QB 66). If the defenders lead expert evidence that supports the actions taken by the treating clinician and which demonstrates that there was a body of suitably qualified experts who see things differently from the pursuer's experts and who take the view that the treating doctor has not acted negligently, then their view will prevail as showing that the test has not been met unless that view is found to be unreasonable. It is not the function of the court to adjudicate between them (Honisz v Lothian Health Board 2006 CSOH 24, Dineley v Lothian Health Board 2007 CSOH 154). It is very rarely appropriate for the court to take the view that views genuinely held by a competent medical expert were unreasonable (Bolitha at 243D). In particular, as a convenient and accurate summary of the law in respect, I was referred to the comments of Lord Hodge in Dineley at paragraph 36-40.

[279] In the course of detailed submissions on the evidence and its application to the issues in the case, it was submitted that the assertion advanced on behalf of the pursuer, to the effect that the drop in FHR after midnight to 100bpm was an indicator that the foetus was not adequately perfused, was flawed.

[280] In that regard, and generally in response to the case against Dr Ogah, reliance was placed on the evidence of Professor Walker. It was submitted that, on the evidence, Dr Ogah had faced a difficult clinical situation upon which he had acted entirely appropriately. While the FHR had dropped after midnight, the resulting rate of 100‑110bpm implied adequate perfusion. A full vaginal examination had been necessary in order to determine the mode of delivery and could not be carried out without analgesia. Spinal analgesia was the safest option. In the circumstances, a crash caesarean section with general anaesthesia was not necessary. Given her history and the documented progress in labour up until midnight, Dr Ogah had been entitled to anticipate full dilatation at about 0030 and a vaginal delivery shortly thereafter. A crash caesarean section would not have been appropriate because of the risks to mother and baby in the event of full dilatation and descent into the birth canal.

[281] In relation to timing, an estimated time of arrival in theatre of 0025‑0028 was reasonable. It had been appropriate to carry out the vaginal examination immediately before the caesarean section. A DDI of some 33 minutes was within the normal range for a category 1 caesarean section.

[282] In response to the case against Dr Thomas, reliance was placed on the evidence of Dr Levy and Dr Heidemann. Dr Levy had confirmed that, in 2004, spinal analgesia was the default mode in preference to general anaesthesia unless there was a dire need for immediate delivery. An anaesthetist was reliant on the obstetrician to inform him of the degree of urgency particularly in relation to FHR. This had not been a case of profound foetal bradycardia. Spinal analgesia was particularly appropriate if a vaginal examination was required and there was, as here, every chance that a vaginal delivery would result. In fact, a "quick spinal" had been achieved. Cutting corners in the administration of spinal analgesia should not be encouraged and the technique advocated by Dr Bogod had never been widely adopted. Postponing consent to proceed to surgical incision until a spinal block had reached the level of T6 was good practice. A period of eight or nine minutes for the administration of spinal analgesia was reasonable and appropriate. The interval between disconnection of the CTG in the delivery room and connection of the CTG in theatre was plausible and not unusually long. The interval between arrival in theatre at 0025-0028 and connection of the CTG did not reflect unacceptable delay.

[283] Dr Heidemann had also viewed spinal analgesia as the preferable option where a vaginal delivery was contemplated. General anaesthesia was used only in extreme urgency where there had been a decision to proceed by caesarean section. On the basis of his evidence if was submitted that there was a tendency in the profession to underestimate timings. A period of eight or nine minutes for the administration of spinal anaesthesia from taking a history to siting the anaesthetic agent was reasonable. The anaesthetic record reflected a situation which had been recognised as urgent. The period from the time of arrival in theatre, of 0025, to 0038 was reasonable. An SHO would be expected to follow guidance and protocols and in 2004 would be unlikely to be familiar with the technique of rapid sequence spinal anaesthesia. It was not appropriate to authorise the commencing of caesarean section when the spinal block was at the level of T7.

[284] It was submitted that the evidence of these experts, to the effect that Dr Ogah and Dr Thomas had met the standards required of them, could not be said to be irrational and was sufficient to undermine the pursuer's case of professional negligence.

[285] In response to the pursuer's submissions, it was submitted that categorisation of the pursuer's labour as being of "category 1 urgency" should not exclude further consideration of the spectrum of urgency in circumstances where, in the context of the tensions between the need for speed and safety, there remained a need for clinical judgement as to the best mode of delivery.

[286] On behalf of the defenders, I was urged to answer the first agreed issue in the negative and to pronounce decree of absolvitor.

Discussion

Professor Walker's status as an expert witness

[287] In the course of the proof, before Professor Walker gave evidence, a motion was made on behalf of the pursuer to the effect that his evidence should be excluded on the basis that his independence as an expert witness had been fatally undermined by the fact of his professional relationship with Dr Ogah. The matter arose because in his curriculum vitae (7/27 of process) Dr Ogah had listed Professor Walker as a potential referee.

[288] The motion was made principally on the basis of English practice and authority. I was referred to Field v Leeds CC (2000) 32 HLR 618 at 621‑22 and 624; Liverpool Roman Catholic Archdiocesan Trustees Inc. v Goldberg (No. 3) [2001] 1 WLR 2337, at 2339‑40; R (Factortame Limited and others) v Secretary of State for Transport, Local Government and the Regions (No. 8) [2003] QB 381, 408‑10; Toth v Jarman [2006] EWCA Civ 1028 at paragraph 100-102, 112; Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited [2011] EWHC 474 (Ch) at paragraphs 43, 45 and 52; Cramoso LLP v Viscount Reidhaven's Trustees [2010] CSOH 62 at paragraphs 51‑53; McTear v Imperial Tobacco Limited 2005 2SC 1 at paragraph 5.18; and Scottish Ministers v Stirton [2012] CSOH 15 at paragraph 106. Reference was also made to Evidence, Davidson, 2007, at paragraph 11.27.

[289] The factual basis of the submission, based largely on the evidence of Dr Ogah, was that Professor Walker had been Dr Ogah's supervising consultant when both worked at Leeds Teaching Hospital in 2010‑11. They had worked together and Dr Ogah would have received advice from Professor Walker. Dr Ogah had asked Professor Walker if he could use his name as a potential referee and Professor Walker had agreed. It was submitted that since Dr Ogah was the object of criticism in the action, Professor Walker, were he to give evidence would be subject to a conflict of interest.

[290] In response, I was referred to a short statement prepared by Professor Walker (7/32 of process) the content of which was to the effect that although he had been in charge of a unit at which Dr Ogah had worked, he would have had about 23 registrars under him at any one time, that although he did not remember working with Dr Ogah, from records it appeared that they did work together although on only three occasions, that they had never been colleagues as such and that there had been no social contact between them. Professor Walker as senior clinician in his unit was often asked to allow his name to be put forward as a referee. In fact, he had never been asked to provide a reference for Dr Ogah and he had certainly not discussed the case with him.

[291] It was submitted for the defenders that any connection between the two was tenuous and that the period during which their paths had crossed post‑dated the index incident by some years. There was no significant basis on which to exclude Professor Walker's evidence.

[292] I took time to consider the matter overnight and on the following morning delivered a judgment in these terms:

"At a procedural level, although the subject matter of the motion might be said to be unusual in this jurisdiction, I am satisfied that no issue of competency arises. I take the view that the matter has been legitimately raised at this stage, on a clear basis, and that it should be determined accordingly. I am grateful for the careful and comprehensive submissions by counsel.

After some thought, having reviewed the helpful exposition of the development of judicial opinion as set out in the authorities to which I was referred, and on a full consideration of the facts available to me at this stage, my decision is to refuse the motion and not therefore to exclude the evidence of the witness Professor Walker.

In doing so, I accept from the outset that where expert evidence is concerned, the independence of the expert is of no lesser importance than his specialised expertise. The critical matter for the court is that such evidence should, of course, be objective and unbiased. In that regard, in determining whether, in any particular instance, that is the case, the matter must be resolved as one of fact and degree.

Against the background of the content of Dr Ogah's evidence on the point, it is fair to say that Professor Walker's position is not comparable with the more extreme circumstances considered in the cited cases. He is not employed by one of the parties (Fields v Leeds CC) or otherwise similarly connected (Toth). There is no suggestion of an expressed personal sympathy (Liverpool RC Archdiocesan Trustees). There is no suggestion of inappropriate payment, or other incentive, and no evidence that he has been in receipt of previous funding by the party instructing him (Meat Corporation of Namibia Limited). In assessing the nature and extent of his relationship with Dr Ogah, I have had regard to the separate statement prepared which I take at face value. In that regard, the explanation given appears to me to be reasonable and plausible and provides no reason for me to doubt its content. I note in particular, that Professor Walker has never been asked to provide a reference for Dr Ogah. Indeed, on the basis of the statement provided, it would appear fair to comment that Professor Walker has made a greater impression on Dr Ogah than vice versa. I was referred to the declaration made in the body of Professor Walker's report which, again, I take at face value to be made in good faith. On that basis, I must assume that he does indeed understand his obligations to the court.

On the question of the adequacy of disclosure, I accept the position of the defenders as described to me and in particular that there was no intention to conceal the link between the two men.

On the facts available to me, I have come to the view, although I appreciate that this is not the test, that the circumstances of the connection between them do not suggest any apparent bias on the part of Professor Walker. I take the point that in a relatively small professional community, it is perhaps not surprising that colleagues' paths should cross in the way which has happened here, but I also draw from the statement provided that the extent of Professor Walker's exposure to Dr Ogah is not such as to render the connection a close one or an inappropriate one for these present purposes. My assessment, therefore, is that, on the information available to me, the circumstances of the connection are not such as to suggest that Professor Walker has any interest in the outcome of the case or, to express the matter another way, I am satisfied that there is no compelling reason to consider other than that his evidence will be "uninfluenced by the exigencies of the litigation".

Although the motion is refused the question of the weight to be given to his evidence of course remains live, as it does for any of the witnesses in the case."

[293] In the course of submissions at the conclusion of the proof, it was urged on me, on behalf of the pursuer, that the extent and nature of the link between the two men ought to diminish the weight to be placed on Professor Walker's evidence. In the course of evidence, the whole matter had been canvassed at some length in cross‑examination of Professor Walker. He maintained his position as set out in his statement and reiterated his understanding of his duty to the court. It is plain from his curriculum vitae (no. 7/15 of process) that Professor Walker is a man of some eminence in his profession. His qualifications and experience are beyond criticism and I find him to be an impressive witness. In particular, I find him to be entirely credible in relation to the nature and extent of his relationship with Dr Ogah and, on that assessment and for the reasons expressed in refusing the motion, I have accorded his evidence the weight which, but for the challenge to his independence, it would otherwise deserve.

Digital examination on arrival in theatre; objection to the line of evidence

[294] In the course of Dr Ogah's evidence in chief, objection was taken, on the basis of a lack of record, to a question which implied that on arrival at theatre a limited vaginal examination would have disclosed that the pursuer was still not fully dilated. Having heard parties, I allowed the question, subject to competency and relevancy. However, as the line developed, objection to the line, on the same basis was maintained. I allowed the line of questioning, subject to competency and relevancy. Ultimately, although it was not foreshadowed in his report, Mr Walkingshaw suggested in his evidence that, on arrival at theatre, a quick digital examination without analgesia could and should have been carried out by Dr Ogah in order to determine the appropriate mode of delivery.

[295] On the renewal of the objection at the conclusion of the evidence, it was submitted that the defender is only required to meet the criticisms made in the pleadings. Reference was made to the decision in Morrisons Associated Companies Limited v James Rome and Sons Limited 1964 SC 160, in which at 182 Lord President Clyde stated:

"It is a well settled rule of our practice and pleading in Scotland that when a duty in general terms is averred, followed by a particularisation of the specific way or ways in which it is alleged that that duty has been breached, the enquiry on the facts is restricted to the specific breach or breaches on which notice has been given, and evidence directed to some other unspecified way in which the general duty may have been breached is excluded. The pursuer stands or falls on his establishing his averments of the specific breach or breaches. Parties in Scotland rely on this rule and do not therefore prepare to meet a case of which they have no such specific notice."

And at 182, Lord Guthrie stated:

"It is a fundamental rule of our pleading that a party is not entitled to establish a case against his opponent of which the other has not received fair notice upon record. It follows that a defender cannot be held liable upon a ground which is not included in the averments made against him by the pursuer. These are not mere technical rules, since their disregard would tend to create injustice, by imposing liability upon a defender for reasons which he had no opportunity to refute."

[296] For the pursuer, I was referred to McFarlane v Thain 2010 SC 7 and invited to consider the line to be a variation, modification or development of what was already

to be found on record.

[297] The averments on which the pursuer relies as fair notice of the line that no ordinarily competent registrar would have failed to conduct a digital examination on arrival in theatre are the following:

At article 9E:

"Further explained and averred that Dr Ogah had been able to perform a digital examination. He had found the cervix not to be fully dilated.";

At article 10A:

"With that knowledge no reasonably competent obstetrician acting with ordinary care would have carried out a full vaginal examination.";

At article 14E:

"The vaginal examination and other obstetric preparation was condescended upon by the defenders' ought to have been undertaken simultaneously with the anaesthetic procedures."; and

At article 19D-20A:

"Following digital examination of the pursuer (between 00.11 and 00.15 hours) Dr Ogah knew or ought to have known (i) that the cervix was not fully dilated and (ii) that bradycardia had started at or around 00.08 hours. With that knowledge no reasonably competent obstetrician acting with ordinary care would have carried out a full vaginal examination."

[298] At an earlier stage in its history, by interlocutor dated 24 January 2011, this action was withdrawn from Chapter 43 procedure. That being so, the requirements of an ordinary action apply to this case and the observations of the First Division in Morrisons Associated Companies Limited (supra) are therefore apt. In my view, these averments relied upon by the pursuer do not provide a basis for the line to which objection was taken. The references to earlier digital examination and to full vaginal examination cannot be said to provide notice of a requirement to carry out digital examination on arrival in theatre. I consider the content of the line sought to be advanced to be new, separate and distinct from the particularities of the case averred on record. I therefore consider the defenders' submission to be well-founded and I uphold the objection. I should add that even if I am wrong in excluding that aspect of the evidence on that basis, I would not have found Dr Ogah to be negligent by reason of failure to conduct a digital examination on arrival in theatre. For the reasons which follow, I would have found, on the evidence, that the pursuer would not have tolerated such an examination at that time and that, even if she would have consented, because it would not have disclosed whether she was fully dilated, and therefore would not have disclosed the information necessary to determine the appropriate mode of delivery, Dr Ogah's actions were appropriate.

The clinical risk management review

[299] There was evidence that following T's birth, a clinical risk management review had been conducted, the result of which was a report (6/18 of process) which made certain conclusions in relation to the management of the pursuer's labour. Neither Dr Ogah nor Dr Thomas were invited to contribute to that process and, strikingly, the investigating panel did not include a consultant anaesthetist. I have taken no account of the review and neither its content nor in particular its conclusions have contributed to the reasoning which underlies this judgment.

The decision to delivery interval

[300] A number of witnesses were referred to published literature on the topic of decision-to-delivery interval (DDI). These papers were those by Tuffnel et al, 2001 (supra) , Cerbinskaite et al, 2011 (supra), Thomas et al, 2004 (supra) and Helmy et al, 2002 (supra). The broad effect of these papers was that a DDI audit benchmark of 30 minutes, however arbitrary that figure was, represented an aspirational goal for UK units in relation to category 1 caesarean sections which were not achievable in every case. It was accepted by witnesses for both parties that failure to meet the benchmark should not be considered as an indicator of negligence. To the extent that these studies reveal a range of performance they are of value, but my approach to the issue of whether negligence has been established must be to examine the particular aspects of the pursuer's case now the subject of criticism against the relevant standards to be expected in the particular circumstances of her case. While the larger statistical picture may provide reassurance for some purposes, I do not consider it to be a factor of any weight in the determination of the issues arising in this case.

Timing

[301] In that regard, however, the issue of timing, in a case where, essentially, the criticism is one of delay, looms large. Not surprisingly, perhaps, the approach for the pursuer was to separate out the individual constituent periods comprising the intervals between the pursuer being removed from the delivery room until the authorisation of the first surgical incision. No criticism was made of the conduct of the pursuer's caesarean section once it was commenced and no criticism was levelled in relation to events in the delivery room up to the point of disconnection of the CTG. It was submitted for the defenders that the pursuer's approach must necessarily be undermined by the fact that the medical notes are not sufficiently comprehensive to provide a time for each significant event. In such a situation, my assessment of the evidence is that, in the absence of any clear recollection, particularly some nine years after the index events, the question of what is likely to have occurred at any particular time can only be informed by impression based on experience.

[302] That being so, not least because of the variables involved in the duration and content of both obstetric and anaesthetic procedures and the preparations required for each, depending on the circumstances at play, in relation to which there was considerable evidence, the preference expressed by Dr Levy for ranges of timing, rather than precise times holds some attraction. There was evidence from Dr Levy and Dr Heidemann to the effect that obstetric notes would often be entered retrospectively. I also see force in the comment of Professor Walker to the effect that there was scope for a cumulative effect of small difficulties, not noted as individual events in the clinical notes, but typical of events occurring in the context of a delivery in theatre. Taking that into account, I approach the issue of timing on the basis that although the beginning and end points of particular periods may be identifiable, the question of whether what is likely to have happened within them took place with appropriate efficiency can only be answered by reference to the generality of what would normally be expected to happen in a case of this type.

[303] There were two obvious timing inconsistencies. The first is that reflected in the time of disconnection of the CTG in the delivery room as recorded on the trace, that is just before 00.22, compared to the entry: "into theatre", in the notes at 00.20. On the basis of the internal consistency of the other timings, I consider that the timed entry in the notes, at 00.20, cannot be accurate and I therefore disregard it. Amongst the witnesses, only Mr Walkinshaw held a contrary view. The second inconsistency related to the siting of the spinal anaesthetic which is timed at 00.38 in the notes but at 00.39 in the anaesthetic record. I do not regard that apparent inconsistency as significant. I assess the evidence as reflecting the fact that the anaesthetic agent was delivered, or the syringe withdrawn thereafter, during the minute covering those two times.

The evidence of Mr & Mrs G and Dr Ogah

[304] I found the pursuer to be generally a credible and reliable witness in relation to the event she described. Although, like the other witnesses to fact, she was speaking to events which occurred more than nine years ago, there were aspects of her evidence in relation to which I formed the impression that her recollection was reasonably clear as, of course, one might expect would be the case in the context of the significant event of the birth of one's child. I have no doubt that she was distressed and in pain in the delivery room, consistent with her assessment by the midwives attending to her, and, subsequently in theatre when, in the context of a suggested vaginal examination, her response was "What does he not understand?". These facts, together with the short timescale following 00.10, suggest to me that, in any event, it would have been unlikely that she would have tolerated a digital examination on arrival in theatre. Although other witnesses did not recall her saying so, her evidence that she was complaining that she felt the baby was putting pressure on her back, was said by Mrs McGeachie, whose evidence I accept as being credible and reliable, not to be unusual. In that regard, although Mr Walkinshaw considered the entry "OP" in the notes at 21.25 to mean that the baby was lying in the occipital posterior position, a fact generally indicative of a longer labour, I accept that the more likely interpretation is "on palpation" which is consistent with the remainder of the entry and the subsequent entry at 21.50: "position not determined". I attach no particular significance to the fact that the pursuer made no reference to earlier miscarriages or previous depression when providing her previous medical history. Her explanation, that she had moved on in her life and did not dwell on these aspects, rang true.

[305] She struck me as doing her best to assist the court and conceded that her recollection was not complete and that she could not be certain of timings. Given her distress and the effect of entonox and diamorphine, that would not be surprising. I assess her description that the transfer from delivery room to theatre "felt like seconds" in that light. On the face of the notes, it would appear that her recollection that it was Dr Ogah who had taken FBS rather than Dr Anastasakis, under Dr Ogah's supervision, is flawed but the evidence suggested, given the likely position of the two men at the time and possibly their relative sizes, that such a misunderstanding would have been reasonable. Similarly, although she was certain, as was her husband, that the consent form was completed before midnight, that is inconsistent with the timings of the events which led to the decision to go to theatre and cannot be correct. Her suggestions that Dr Ogah was not listening to her, that there was a disagreement between him and Mrs McGeachie as to the extent of dilatation and that he had said "You are getting a caesarean section not because you want one but because you need one" were not recalled either by Dr Ogah or Mrs McGeachie. Dr Ogah's response in evidence was that such actings would have been out of character for him. In the event, although I was urged to consider these episodes when assessing Dr Ogah's credibility, nothing turns on them insofar as the merits of the case are concerned. It is possible that, in that regard, given her situation at the time, the pursuer may have formed a false impression of events around her.

[306] My impression was that the language used by Mr G, in describing the events to which he spoke, was strikingly similar to that of the pursuer. Like her, although certain that Dr Ogah had taken FBS and that the consent form was signed before midnight, his recollection was, on the evidence, flawed. He was clear, however, that his wife had been in extreme discomfort and had been asking for help with the baby. He accepted in cross-examination that his estimate of 10-15 minutes as the duration of the conversation between Dr Ogah and Dr Thomas outside the operating theatre might be inaccurate. His description of Dr Ogah throwing a capillary tube containing an inadequate sample of blood over his shoulder was not recollected by Mrs McGeachie and was something Dr Ogah said he could not imagine himself doing.

[307] I found Dr Ogah to be a credible and reliable witness who took his responsibilities towards his patients seriously. I accept that the decisions which he took in the pursuer's case were in full recognition of the tensions between the interests of the foetus and those of the mother and of tensions between the need for expedition and the need for safety.

[308] Much was made of his description of the pursuer as "uncooperative". Although the term might well be viewed as pejorative, I accept that what he meant by it was his explanation that she had been unable to cooperate with the procedure sought to be carried out because of an inability to tolerate it. In cross-examination, Mr Walkinshaw accepted that interpretation. Although it was suggested to me that the term had been used to exaggerate the difficulties experienced by Dr Ogah in managing the pursuer's labour, I am not persuaded of such a motive. There was, in any event, a deal of evidence as to the general extent of her distress and as to the effect of distress in prolonging obstetric and anaesthetic procedures.

Urgency

[309] I find that Dr Ogah's decision to go to theatre was based on concern raised by the drop in FHR from 170/180 bpm to 100/110 bpm and that what he had in mind was characterised by the term "examine under anaesthesia: query caesarean section". In other words, what was intended was a full vaginal examination following which, in the event that the pursuer was fully dilated, a vaginal delivery would be carried out and, in the event that she was not, delivery was to be by caesarean section. On that basis, I consider that the pursuer's case could not at that time be categorised as a category 1 caesarean section as no positive decision to proceed by caesarean section had been made. That decision was not made until after the vaginal examination was carried out. I note that although Mr Walkinshaw was critical of the fact that consent to vaginal delivery was not recorded on the consent form, Dr Ogah's position was that in such circumstances it was standard practice to document consent only for caesarean section on the basis that caesarean section was the more grave of the two procedures and that, if necessary, verbal consent for vaginal delivery would have been taken if required. Cimitedine was administered at 00.15. On that basis, the parties did not seriously dispute the fixing of the time of the decision to go to theatre as being shortly before that, at about 00.14. It was accepted that no inference as to the ultimate mode of anaesthesia to be employed should be drawn from the fact that cimitedine was administered. At the time, that was required by protocol at QMH.

[310] As regards the conversation between Dr Ogah and Dr Thomas as to the operative procedures to be carried out in theatre, I accept Dr Ogah's evidence that he thought he would have said that there was bradycardia, that there was the possibility of a caesarean section, that there was a need for a vaginal examination first to determine the possibility of a vaginal delivery, that labour was progressing rapidly and that it was an emergency. Dr Thomas could not recall the conversation and no other witness was led to contradict the evidence of Dr Ogah in this respect. When giving evidence, Dr Ogah described the situation as being a "category 1 case" which I interpret as meaning a delivery associated with the level of urgency to be accorded to a category 1 caesarean section. Mr Walkinshaw described the position in similar terms and Professor Walker described it as a category 1 delivery. The published literature on the development of categorisation of urgency caesarean section (Lucas et al, 2000 (supra); "Good Practice No 11" (supra)) has resulted in recognition that there is a spectrum of urgency within any one category. Further specification, as to where in the spectrum of category 1 urgency he considered the pursuer's case to be, was not sought from Dr Ogah. In cross-examination, he expressed the view that the phrase "category 1" may not have been widely used in 2004 (Dr Bogod was of the same view), but that he had conveyed the need for urgency to Dr Thomas who he considered to have understood the position. Whether Dr Ogah in fact used the words "category 1" is not clear. Despite Dr Ogah's characterisation of the pursuer's case as being of category 1 urgency, my assessment of the evidence suggests that the factors at play in a true case of category 1 caesarean section were not present. Since Dr Ogah's assessment of the situation at the time of his decision to take the pursuer to theatre was not to proceed directly to caesarean section, the inference must be that there was not a perception of imminent risk to the life of the mother or baby. Other aspects of Prof Walker's evidence were consistent with that. In cross-examination, Mr Walkinshaw conceded that on the basis of Dr Ogah's evidence, Dr Ogah had adequately communicated the urgency of the situation. That was consistent with Professor Walker's assessment which was that Dr Ogah had acted appropriately throughout. Both Dr Ogah and Dr Thomas thought that the conversation between them would have lasted no longer than one to two minutes and I accept that as having been the most probable time scale.

Transfer from delivery room 6
[311] The weight of the evidence in relation to the disconnection of the CTG in delivery room 6, which I accept, was that it was the last thing to be done before removing the bed from the room, and that it was correctly timed according to the trace (6/3 of process) at just before 00.22. Similarly, the weight of the evidence in relation to the connection of the CTG in theatre, which I accept would have happened as soon as the pursuer was transferred to the operating table, was that it was correctly timed according to the trace (6/59 of process) at 00.31.

[312] The estimate of the timing of arrival in theatre, between these two times, varied amongst the witnesses and appeared to be largely a matter of impression and experience. In assessing the likely time of arrival, I have disregarded the evidence of the pursuer, who thought the transfer to theatre "felt like seconds", and that of Mr G, who estimated the transfer time at about 20 seconds, as being in each case an estimate which was unfeasibly short. I also accept the defenders' submission that the pursuer's estimate of 10 minutes passing between the time of the decision to go to theatre and arrival there, must be treated with caution given her condition at the time. Dr Ogah thought the period would be at least a minute and, in cross-examination, between two to three minutes and ultimately agreed with an arrival time between 00.25-00.28. Dr Thomas working backwards from 00.31 and allowing two minutes in which to move the pursuer from bed to table and two minutes for the conversation between Dr Ogah and himself, considered an arrival time of 00.28 as being realistic. Mr Walkinshaw estimated the transfer time at one and a half minutes. He considered arrival in theatre to be at 00.21. In cross-examination, he accepted that on the basis of disconnection of the CTG at 00.22 it was possible that arrival in theatre was between 00.25-00.28, but ultimately he adopted 00.20, in accordance with the entry in the notes, as the time of arrival. Dr Bogod, in his timings, adopted the timings set out in Mr Walkinshaw's report and therefore fixed arrival in theatre at 00.22. Mrs McGeachie fixed the time of arrival at between 00.27-00.28 and, in cross-examination, maintained that transfer would take more than two minutes. Dr Levy set the range 00.25-00.28 as encompassing arrival and the completion of tasks required for preparation for spinal anaesthesia. Both Dr Heidemann and Professor Walker allowed three minutes for transfer producing an arrival time at 00.25, although Professor Walker also envisaged the pursuer having arrived in theatre some three minutes in advance of 00.31, at 00.28. In cross-examination, he maintained his view that arrival had probably occurred at 00.25. In cross-examination, Dr Heidemann allowed four minutes for the transfer from bed to table which again, working backwards from 00.31, would produce an arrival time of 00.27. On the basis that there was a broad consensus, amongst Dr Ogah, Dr Levy, Dr Heidemann and Professor Walker, in relation to the evidence of each of whom I attach weight, I find that the best estimate of the time of arrival of the pursuer in theatre lies in the range between 00.25-00.28 as contended for by the defenders. On that basis, the most likely interval between leaving delivery room 6 and arrival in theatre and that between arrival in theatre and transfer to operating table extended in each case from three to six minutes.

[313] Whether these periods and the subsequent period between 00.31 and about 00.38-00.39, when the spinal anaesthetic was sited, were acceptable in the circumstances of the pursuer's labour, depends on an objective assessment of the urgency of the situation and the procedures which, as a result, should have been adopted. In determining the urgency of the situation, the principal factor which divided the parties was how the condition of the foetus fell to be interpreted.

The case against Dr Ogah

[314] In that regard, the pursuer's case was heavily reliant on the evidence of Mr Walkinshaw who maintained that the drop in FHR after midnight from 170/180 bpm to 100/110 bpm was an indicator that the baby was not being adequately perfused with the consequent risk, if the situation was allowed to persist, of brain damage due to hypoxia. The rationale for his reasoning was that since at the time of the reassuring FBS analysis, obtained at about 23.40 and indicating that at that time the baby was adequately perfused, the FHR had been 180 bpm, that was the rate necessary to compensate for some degree of hypoxia. Accordingly, on that basis, the FHR necessary to maintain adequate perfusion was 180 bpm and on the basis that cardiac output must have been less as a result of a lesser FHR, at a reduced FHR of 100/110 bpm the baby could no longer have been adequately perfused. Mr Walkinshaw maintained that, in that context, a change in the baseline rate was as significant as the baseline figure itself. Perfusion was determined by cardiac output which was the product of heart rate and stroke volume.

[315] Mr Walkinshaw was unable to cite any medical texts in which the theory was set out. He accepted in cross-examination that there was no direct relationship between tachycardia shown on a CTG trace and acidosis and that the CTG was not a sensitive tool. He also accepted that severe bradycadia should be considered to be indicated by an FHR of less than 90 bpm and that there had been no prolonged severe bradycardia in the pursuer's case. He agreed that in terms of the NICE Guidelines, an FHR of a 110 bpm was not an apparent terminal bradycardia. He accepted that it is easy to over interpret a CTG trace in hindsight when the outcome is known. The trace had to be viewed as a whole but only up to the point at which the clinician was assessing the situation. At 22.20 the FHR baseline had been 170 bpm and the trace was pathological with three suspicious features: bradycardia reduced variability and variable deceleration, although diamorphine could have the effect of reducing variability. Other factors could be responsible for tachycardia: mother's distress, foetal distress or an increase in mother's temperature. In the event, the pathological nature of the trace had been trumped by the reassuring nature of the FBS analysis. He agreed that the pathological nature of the trace had been dealt with appropriately.

[316] In contrast, Professor Walker disputed Mr Walkinshaw's reasoning. He had never heard of the proposition before. The teaching had consistently been that where an FHR of 100 BPM or more was maintained, the foetus could be assumed to be perfused. He could not accept Mr Walkinshaw's theory. As far as he was aware there was no evidence for it. There was no evidence that tachycardia maintained perfusion. Stroke volume was not a constant and varied depending on the gap between contractions. It was wrong to assume that the only way to increase cardiac output was by an increase in heart rate. A baby's cardiac output could be increased by a rise in heart rate but not to any significant effect. It did not follow that because heart rate dropped, cardiac output must diminish. Accordingly, because stroke volume could increase, it could not be assumed that stroke volume would remain constant. Mr Walkinshaw's theory was contrary to the NICE Guidelines which implied that at an FHR of 100/110 bpm, foetal perfusion was adequate. The theory was also at odds with the maximum APGAR score of two points which would be applied to such an FHR.

[317] The differing views taken by these two expert witnesses on the condition of the baby after midnight informed their opinions as to the appropriate course in the light of the known facts.

[318] Mr Walkinshaw's opinion, despite his evidence initially to the contrary, came to be that, because of the urgency surrounding the baby's condition, Dr Ogah, in conversation with Dr Thomas, should have refused a quick spinal , ( a criticism which was not expressed on record), and should have insisted instead on general anaesthesia and that following a quick digital examination on arrival in theatre , (the objection to the evidence of which I have upheld), on the basis that the pursuer would not have been fully dilated, or in the absence of consent to such an examination, should have proceeded directly to caesarean section. He was of the view that Dr Ogah ought to have assumed that the pursuer would not have progressed beyond eight centimetres dilatation and that caesarean section of utmost urgency was required.

[319] Professor Walker's evidence was in many respects directly contradictory to the evidence of Mr Walkinshaw. Professor Walker's opinion was that Dr Ogah was entitled to anticipate full dilatation by about 00.30. The pursuer's labour had been progressing rapidly and her first two labours were both shorter than average. A full vaginal examination was mandatory in order to determine the best mode of delivery. In these circumstances, Dr Ogah had been right to assent to a "quick spinal". A digital examination would not have sufficed since while that might have revealed that she was not fully dilated, it would not have revealed if she was fully dilated. If she had been fully dilated, the appropriate course would have been vaginal delivery. Anaesthesia would be necessary for full vaginal examination, not least because the pursuer had not been able to tolerate such an examination only a short time earlier. The appropriate time for vaginal examination was immediately before delivery on the basis that events might progress rapidly after an earlier examination. He considered that to proceed directly to caesarean section under general anaesthesia in the circumstances would not have been defendable, since if the baby had in fact descended, the risks of injury to mother and baby would have been significant. What Dr Ogah had done in these circumstances had been the appropriate course.

[320] Mr Walkinshaw was clearly a highly qualified expert with extensive experience. However there were aspects of his evidence about which I had reservations. His evidence was at times self-contradictory. He agreed that there were signs of progress in the pursuer's labour which suggested that birth might be imminent and agreed that a multiparous woman would often progress rapidly in labour, but maintained nevertheless that Dr Ogah ought not to have anticipated that the pursuer might become more than eight centimetres dilated. He agreed that a vaginal examination was necessary in order to discover whether the pursuer was fully dilated but maintained that a digital examination, which could only reveal whether she was not fully dilated, would suffice. Alone among the witnesses, he maintained that the timing of arrival in theatre entered in the notes, at 00.20, was correct but agreed that if the CTG in the delivery room had been disconnected at about 00.22, the arrival in theatre could have been at about 00.25-00.28. He interpreted "OP" in the notes as meaning "occipital posterior" despite the subsequent entries pointing persuasively to the meaning "on palpation". His criticisms of the course adopted by Dr Ogah sat oddly with his agreement that Dr Ogah had appropriately communicated the urgency of the situation to Dr Thomas. The criticisms he ultimately made of Dr Ogah were not included in his reports and not foreshadowed on record. He considered that the time between arrival in theatre and the siting of the spinal anaesthetic had been too long but agreed in cross-examination that after 00.22 there had been no obstetric delay.

[321] Professor Walker gave his evidence in a measured, detached and professional manner. I did not have concerns about his evidence of the type I have noted in relation to Mr Walkinshaw. Professor Walker's views were coherent and clearly expressed. His position did not alter under cross-examination.

[322] In the situation where the views of two expert witnesses disclosed two opposing schools of thought as to the particular practice which was appropriate in the management of the pursuer's labour, I am guided by the approach set out in Dineley (supra) and Honisz (supra). It is not the function of the court to prefer one school over the other. Applying the exercise set out in Loveday (supra) at 125, I find nothing to cause me to have any reservation about the evidence of Professor Walker. There is nothing to suggest that he reached his views on a mistaken or incomplete understanding of the facts in this case or that his assessment was illogical or irrational. In particular, although it was urged on me, on behalf of the pursuer, to assess as irrational Prof Walker's refusal to accept that cardiac output must diminish proportionately as foetal heart rate decreases, I note that the assertion by Mr Walkinshaw to which Prof Walker took exception was predicated on the assumption that cardiac stroke volume would remain constant. Mr Walkinshaw was unable to point, in support for his assumption, to any medical literature but, on the other hand, Prof Walker did, in my view, expand on his own position persuasively. For that reason, on this specific issue, I prefer the evidence of Prof Walker. I do not consider his position on the matter to be irrational. That being so, and the totality of his evidence being to the effect that Dr Ogah acted appropriately in every way within the context of the relevant test, I find that the pursuer's case against Dr Ogah fails. I am not persuaded that Dr Ogah failed in his treatment of the pursuer.

The case against Dr Thomas

[323] Mr Walkinshaw's view was that if delay had not been caused by a failure on the part of Dr Ogah to communicate the appropriate level of urgency, then it must have been caused by a failure on the part of Dr Thomas to appreciate it. Dr Bogod's opinion on the matter was informed by his view as to the appropriate anaesthetic procedure which he maintained should have been employed. That was that, on the basis that the case demanded an urgent caesarean section, a version of rapid sequence spinal anaesthesia should have been carried out, which included "cutting corners" to some extent, pre-oxygenation during administration of the anaesthetic agent, and a maximum duration of six minutes from the point of commencement of the taking of a patient history after which, in the event that administration of the anaesthetic had not been completed, general anaesthesia should have been administered. In circumstances where an anaesthetist of Dr Thomas' experience was not prepared to take the risks inherent in accelerating the administration of spinal analgesia in that way, he ought to have administered general anaesthesia immediately at the outset. Had that been done, T would have been delivered at 00.33 rather than at 00.48. If spinal analgesia had been affected on the basis proposed by Dr Bogod then he would have been delivered at 00.36. Dr Bogod's timings, resultant on adopting either procedure, were based on a time of arrival in theatre at 00.22. He maintained that caesarean section should have been commenced when the spinal block had reached the level of T7.

[324] Dr Bogod accepted that if vaginal delivery was an option, spinal analgesia would be preferable to general anaesthesia. He accepted that in circumstances where the situation was characterised by the phrase "examine under anaesthesia: query caesarean section", Dr T's question "Is there time for a quick spinal?" had represented good practice.

[325] Dr Thomas' view was that had he, in 2004, adopted a spinal procedure of the type advocated by Dr Bogod he would have been heavily criticised. Dr Chalmers would not accept that radical shortening of the process of achieving asepsis, inherent in the technique, was acceptable. Neither would accept that it was appropriate to commence caesarean section when the spinal block had reached only the level of T7. Dr Chalmers did accept that urinary catheterisation could have been commenced when the spinal block had reached the level of T6. On the evidence, that would indeed appear to have happened.

[326] Dr Levy's view was that, in 2004, spinal analgesia was the default mode unless there was an unequivocal and dire need to deliver immediately because of, for example, sustained and unremitting bradycardia, and that, where a vaginal examination was desired, that would point towards spinal anaesthesia. He thought that procedure in fact carried out by Dr Thomas was correctly described as a "quick spinal". His view was that the technique of pre-oxygenation during the adminiRapid sequence spinal anaesthesia had never entered mainstream anaesthetic practice. He was not in favour of "cutting corners" particularly in relation to asepsis. He considered that to wait until the spinal block had reached the level of T6 before authorising incision was not something which could be criticised. Commencement of surgery at a spinal block height of T7 was not appropriate. He assessed a period of seven to eight minutes (00.31 to 00.38 - 00.39) for the administration of spinal anaesthesia in the circumstances of the pursuer's case as being reasonable and appropriate. He considered that on the basis of what Dr Thomas had been told by Dr Ogah, without a clear indication that the situation required a crash caesarean section, Dr Thomas could not be faulted. He disagreed with Dr Bogod's assumption that there had been a defined requirement for caesarean section. He agreed that a majority of anaesthetists would opt for general anaesthesia in a case of a category one caesarean section, but in his view the pursuer's case had not been a case within that category. He was unaware of any reference in a medical textbook which supported Dr Bogod's assertion that a maximum allowance of six minutes for the application of spinal analgesia in cases of urgency represented a recognised standard of care. On an assessment of the known timings, he remained of the view that Dr Thomas had not fallen short of the standard of care to be expected of an ordinarily competent SHO anaesthetist in 2004.

[327] Dr Heidemann's view was that if there was any possibility of a vaginal delivery, spinal analgesia was preferable. General anaesthesia was appropriate only in extreme urgency when caesarean section had already been decided upon. He considered that, in the circumstances of the pursuer's case, the period from arrival in theatre, taken at 00.25, until the sighting of the spinal anaesthetic at 00.38-00.39, was reasonable. He would not have expected an SHO in 2004 to have dispensed with the consistent recommendation that scrubbing up should take no less than three minutes. He considered the content of Dr Ogah's conversation to represent a good standard of care. He considered that Dr Thomas had met the required standard of care by in fact performing a "quick spinal". He would not have expected someone in Dr Thomas's position in 2004, to have been aware of the letter by Scrutton and Kinsella, published in 2003, which he still considered to be controversial, particularly in relation to the issue of reduced asepsis. He also did not support the contention that incision when the spinal block was at the level of T7 was appropriate. He accepted that in urgency, anaesthetic procedure should be carried out as quickly as possible, but maintained that it remained necessary to adhere to guidelines and training. He considered that where a vaginal examination was sought by an obstetrician, that fact would indicate a lesser urgency than if the case fell within category 1 because a vaginal examination would necessarily add time to the procedure. In that context, he thought that the time taken by Dr Thomas to administer spinal analgesia was not unreasonable. He felt that Dr Bogod's timings as to how the pursuer's labour might have been managed differently were over-optimistic.

[328] Thus, also in relation to this branch of the evidence, two distinct schools of thought emerged as to the appropriate practice in the circumstances, between Dr Bogod on the one hand and Dr Levy and Dr Heidemann on the other.

[329] Dr Bogod was a distinguished expert, clearly highly regarded in his field. There were certain assumptions made in his reports, however, in relation to timing and as to the categorisation of the pursuer's delivery as an emergency caesarean section on which his opinion was predicated, which were not consistent with the main thrust of the evidence in the case as I have assessed it. On the basis that it was appropriate to carry out a vaginal examination he was not critical of the choice of spinal analgesia, but maintained throughout that its administration should not have taken longer than six minutes in total, failing which general anaesthesia should have been administered, and that in administering spinal analgesia it was legitimate to "cut corners" in order to accelerate the process. Against that he accepted that he would not have expected an SHO in 2004 to know of the letter by Scrutton and Kinsella published in 2003. In evidence, he was inflexible on the issue of the appropriate duration of administration of spinal analgesia. His timings appeared to me to be optimal with little tolerance allowed for delay caused by the normal exigencies of managing a patient's labour. My impression was that as a practitioner of a very specialised technique, in suggesting that Dr Thomas should have adopted it or alternatively administered general anaesthesia, he was in effect projecting his own current experience and expertise as a consultant on someone who in 2004 was an SHO and as such was bound by the protocols of the unit in which he worked.

[330] Both Dr Levy and Dr Heidemann were clearly eminent in their field and gave their evidence in a clear manner with rational explanation when required. Neither departed from his respective report to any significant extent and both maintained their position under cross-examination. Both were prepared to engage with different hypotheses and to respond appropriately. I considered the evidence of both to merit significant weight.

[331] Following the guidance set out in Dineley and Honisz and applying the exercise described in Loveday, I find, having considered all the relevant factors, that there is nothing to cause me to have any doubt or reservation about the evidence of Dr Levy and Dr Heidemann such as to cause me to think that either proceeded on a misunderstanding of the facts of the case or reached an assessment which could be said to be mistaken, illogical or wrong. In these circumstances, the evidence of Dr Levy and Dr Heidemann being to the effect that the course adopted by Dr Thomas was appropriate in the context of the relevant test, it follows, therefore, that the pursuer's case against Dr Thomas fails. I am not persuaded that Dr Thomas failed in his treatment of the pursuer.

Delay

[332] For completeness, although given my finding that neither Dr Ogah nor Dr Thomas was responsible for any delay, nothing turns upon it, I find that the relevant intervals as I have now identified them, that is to say (i) just before 00.22 to 00.25-00.28 (ii) 00.25-00.28 to 00.31 and (iii) 00.31 to 00.38-00.39, were reasonable periods in the circumstances and not excessive. Aside from the inferences in that regard to be drawn from the experts' opinions as to appropriate practice, contrary to the case for the pursuer, to which, in the light of the approach to the competing schools of thought which I have followed, I must accord legitimacy, there was specific support for that view variously in the evidence of Dr Chalmers, Dr Levy, Dr Heidemann and Professor Walker which I also accept.

Decision

[333] While, tragically, T suffered catastrophic injury during his birth, I am not persuaded that it was caused by negligence on the part either of Dr Ogah or Dr Thomas. I therefore answer the first agreed issue in the negative, hold the second agreed issue to be superseded, sustain the second and third pleas in law for the defenders', repel the defenders' first and fourth pleas in law, repel the pursuer's pleas in law and pronounce decree of absolviter.