DA (a child ) v North East London Strategic Health Authority [2005] EWHC 950 (QB)

Case No HQ 03X03415[2005] EWHC 950 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 May 2005
Before
MR JUSTICE RICHARDS
Between
DA (a child suing by her litigation friendClaimantand mother CA)ClaimantNorth East London Strategic Health AuthorityDefendant
Philip Mott QC and Harry Trusted (instructed by Stewarts Solicitors) for ClaimantStephen Miller QC (instructed by Capsticks Solicitors) for DefendantHearing Hearing dates: 14-18 February 2005
Judgment
[1]The claimant was delivered by caesarean section at 12.44 on 19 March 1994 at Homerton Hospital in London. Very sadly, she suffers from dyskinetic cerebral palsy as a result of brain damage caused by a period of profound asphyxia shortly before birth. Had she been born by 12.30, it is likely that she would have escaped brain damage. By these proceedings she claims damages for her injuries from the North East London Strategic Health Authority, the authority responsible for Homerton Hospital. Liability and causation have been ordered to be tried as preliminary issues. The central question is whether there was negligence on the part of the hospital staff, but for which the claimant's delivery would have taken place a few minutes earlier than it did.[2]The defendant expressed in open court, through counsel, very great sympathy for the claimant and her parents. I too have the greatest of sympathy for them and fully recognise the appalling consequences of those few minutes of delay in the claimant’s birth. My task in this case, however, is to put sympathy to one side and to determine in accordance with the applicable legal principles whether the defendant is liable in negligence for what occurred. There is no dispute that the relevant principles are those stated in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v. City & Hackney Health Authority [1998] AC 232.

The evidence

[3]Much of the evidence of fact is contained in contemporaneous records. Although this helps to reduce the areas of contention, it does not remove them altogether. In particular, there are important doubts and discrepancies concerning timings.[4]In addition, evidence was given by the following witnesses of fact, whose witness statements stood either as agreed evidence or as their evidence in chief. The witnesses for the claimant were:(1) The claimant’s mother, Mrs A, whose evidence provided the framework for consideration of events at the hospital on 19 March 1994. She was asked a few questions in cross-examination, by way of clarification of her evidence rather than challenge to it. I would like to pay tribute to the dignified way in which she conducted herself both in the witness box and while sitting in court throughout the trial.(2) The claimant’s father, Mr A, who attested to the pain his wife was suffering in the run-up to the caesarean section and who signed the consent form for the operation, but whose evidence was of only limited significance for the particular issues the court has to resolve.(3) A woman, Mrs O, who had been admitted to the ante-natal ward at the hospital and who underwent a caesarean section that occupied the theatre facilities and staff at the time when the extreme emergency arose with Mrs A. Mrs O gave very brief oral evidence which was not contentious.[5]The witnesses of fact for the defendant were:(1) Miss Katrina Erskine, who was at the time a consultant obstetrician and gynaecologist at the hospital. She had seen Mrs A in the ante-natal clinic but was not involved in the events of 19 March. Her witness statement was agreed.(2) Mr Andrew Farkas, who was at the time the senior registrar in obstetrics and gynaecology at the hospital. He too had seen Mrs A in the ante-natal clinic. On 19 March he was the on-call senior registrar in obstetrics but was based at St Bartholomew’s Hospital (the sister hospital to Homerton) where he did a ward round in the morning. He arrived at Homerton just after the birth of the claimant. He gave brief oral evidence which was of limited significance.(3) Ms Audrey Crawford, the midwife in charge of the delivery suite in the early hours of 19 March. Her witness statement was agreed.(4) Mrs Anna Peers, the midwifery sister in charge of the team of midwives at the hospital. She was on duty at the relevant time, in the role of midwifery co-ordinator. She saw Mrs A on her admission to hospital and became directly involved again in the immediate run-up to the emergency operation. She gave oral evidence. I found her a careful witness who was doing her best to assist the court, but there is one significant matter on which, as explained below, I am unable to accept her understanding of the position.(5) Mrs Chloe Lowe, the midwife whom Mrs Peers allocated to look after Mrs A from soon after her admission until the time of the operation. She gave important oral evidence and I found her to be a sensible and credible witness.(6) Professor Robert Poka, who was at the time an obstetric registrar at the hospital. He was coming to the end of his night duty when Mrs A was admitted on 19 March. He undertook an initial assessment of her before completing his ward round and handing over to Mr Ogueh. His witness statement was agreed.(7) Mr Onome Ogueh, who was employed at the time as a registrar in obstetrics and gynaecology at the hospital. He was on duty as obstetric registrar at the material time on 19 March, and he carried out the operation on Mrs O and completed the operation on Mrs A. He too gave important oral evidence. He was very defensive and unduly anxious to protect himself. Nevertheless, I feel able for the most part to place weight on what he said.(8) Dr Jacqueline Hill, who was employed at the time as the senior house officer in obstetrics. She accompanied Mr Ogueh on his ward rounds, assisted him in the operation on Mrs O and commenced the operation on Mrs A. She gave oral evidence, was a straightforward witness and accepted, in particular, the limitations on her independent recollection of events.(9) Dr Andrew Morton, who was employed at the time as senior house officer in gynaecology. He was involved briefly in the immediate run-up to the operation on Mrs A. His witness statement was agreed.(10) Dr Paul Sigston, who was employed at the time as the registrar in anaesthetics at the hospital. He was the only obstetric anaesthetist on call that day and acted as anaesthetist for the operation on Mrs O. He gave oral evidence which raised no significant point of contention.(11) Dr Gary Yarwood, who was employed at the time as non-resident senior registrar anaesthetist at Homerton and St Barholomew’s, covering the two sites. He acted as anaesthetist for the operation on Mrs A, having responded to an urgent call while he was doing a ward round in the intensive care unit at Homerton. He too gave oral evidence which raised no significant point of contention.[6]Despite the assistance that the witnesses sought to give the court, they could not be expected to have a precise recollection of much of the relevant detail, in relation to which the documentary records are central.[7]I heard expert witnesses for both sides, in the fields of(i) midwifery and(ii) obstetrics. In relation to each of those disciplines the experts had met and produced a joint report which served substantially to reduce the areas of disagreement (though the position in relation to the obstetric joint report was complicated by the decision of the claimant’s expert to submit his own further comments by way of “clarification” of matters contained in the joint report).[8]In the field of midwifery the expert for the claimant was Mrs Christine Christophe, a retired midwife who was formerly Director of Nursing and Midwifery Services at Nobles Hospital in the Isle of Man. The expert for the defendant was Mrs Susan Brydon, a senior clinical midwife at the Queen's Medical Centre in Nottingham who has also taught at the University of Nottingham. Both witnesses have extensive midwifery experience, but Mrs Brydon's experience relevant to the issues in this case is more recent and substantial. I also found Mrs Brydon an altogether more accurate, balanced, realistic and convincing witness. I have no hesitation in preferring her views to those of Mrs Christophe where the two experts were in disagreement.[9]In the field of obstetrics the expert for the claimant was Professor James Walker, Professor of Obstetrics and Gynaecology at the University of Leeds and Honorary Consutlant at the United Leeds Teaching Hospital Trust. The expert for the defendant was Professor Phillip Bennett, Professor of Obstetrics and Gynaecology at Imperial College Faculty of Medicine and Consultant at the Hammersmith Hospitals Trust (Queen Charlotte Hospital). Both witnesses are men of experience and distinction in the field, but I found Professor Bennett the more impressive and reliable witness. There were some inconsistencies in the evidence of each of them, but in Professor Bennett's case such problems were less significant and were readily acknowledged and dealt with. Overall, the evidence of Professor Bennett was markedly more balanced and cogent, and the views he expressed were firmly grounded in extensive, current experience at a London teaching hospital. I have no hesitation in preferring his views to those of Professor Walker where they were in disagreement.

Trial of scar

[10]Mrs A's first child had been born on 16 March 1993 by caesarean section. The present case concerns the delivery of her second child, who was conceived within 6 months of the previous caesarean section.[11]It is not in issue that it was acceptable practice, after discussion of the matter with Mrs A, to aim for a normal vaginal delivery of the second child following the previous caesarean section. That process is known as trial of vaginal delivery or "trial of scar". It carries with it a risk that the previous caesarean scar will rupture during labour. The obstetric experts were agreed that an overall risk of 1 in 300 is a reasonable figure. They were also agreed that there is a 20%-25% risk of a bad outcome for the baby in cases of acute rupture of the scar in labour. This relates to ischaemic damage that can lead to brain damage or death. If a rupture occurs, it is an acute situation and delivery by caesarean section should be performed as quickly as possible. The experts were agreed that delivery within 10 minutes would in all probability prevent damage.[12]That is the background against which the factual history of the case and the allegations of negligence fall to be assessed.

The delivery of Mrs A’s baby: the facts

[13]On 9 August 1993 Mrs A was booked into the maternity unit at Homerton Hospital under the care of Miss Erskine, with an expected delivery date of 21 March 2004.[14]Mrs A was seen in the ante-natal clinic by Miss Erskine on 17 February 1994, when it was noted that she was keen for a caesarean section. She was seen again on 10 March, by Dr Farkas and probably by Miss Erskine. The method of delivery was discussed and it was decided to aim for a normal vaginal delivery, i.e. a trial of scar. It is common ground that the risks were explained to her. She was reassured that she could have a caesarean section if normal labour proved too painful for her, and that a team would be available to perform a caesarean section if necessary.[15]On 19 March Mrs A telephoned the hospital at 05.35 to say that she was having abdominal pain every 15 minutes. She spoke to Ms Crawford, who advised her to come in to the hospital. She took a bath and telephoned again. This time there was some "show". She was advised to come in immediately.[16]She was admitted to hospital at 07.45. On arrival she was booked in by Mrs Peers. A cardiotocograph (“CTG”) was connected: this is an electronic device for monitoring the fetal heart rate and maternal contractions. The trace was normal.[17]At 08.05 Mrs Lowe took over her care. She recorded that the CTG showed a reactive (healthy) trace of the fetal heart rate, with good beat to beat variation; that the mother was contracting once every 5 minutes; and that there was no scar tenderness (i.e. tenderness of the scar caused by the previous caesarean section).[18]At 08.10 Mrs A was seen by Mr Poka, the registrar. He performed a vaginal examination and found that the cervix was 2 cm dilated. He directed intermittent monitoring. His plan was to "aim for vaginal delivery if satisfactory rate of progress is recorded". He stated:
"Re-assess in three hours."
The question of an epidural anaeshetic was discussed.[19]At the end of his ward round Mr Poka handed over to Mr Ogueh, who saw Mrs A during his ward round at 08.35. Mr Ogueh noted that Mrs A had had a previous caesarean section and was in early labour. The CTG was satisfactory. His plan was to “allow progress”.[20]At 08.45 an intravenous cannula (a means of access to a vein to allow fluids to be given by drip) was sited by Dr Hill and the CTG was disconnected to allow Mrs A to mobilise. The CTG remained disconnected until 11.10.[21]At 09.45 Mrs Lowe noted that Mrs A was enquiring about a caesarean section as she would prefer to have one. She seemed anxious about having a vaginal delivery because of the anticipated pain. She was reassured and informed that if there was any complication with her condition or the baby's condition there would be no question other than to do a caesarean section if she was in the first or second stage of labour. The availability of an epidural was reiterated.[22]At 10.10 the fetal heart was listened to. The result was normal, at 122 beats per minute (“bpm”). Contractions were occurring at the rate of one every 3 to 4 minutes.[23]Between 10.20 and 11.00 Mrs Lowe took a break. Mrs A was given a call bell in case she needed to summon assistance in Mrs Lowe's absence.[24]At 11.10 CTG monitoring was restarted. It remained in operation until shortly before delivery. During that period it recorded the fetal heart rate on a physical trace, with some short gaps where there was loss of contact. A loss of contact generally occurs where, because of some movement by mother or baby, the monitoring device around the mother’s abdomen fails to pick up the signal sufficiently clearly for the machine to give a read-out. The evidence was that in these circumstances the midwife can still generally hear the sound of the fetal heart via the machine.[25]On the other hand, the tocograph element of the CTG was not working properly, despite an attempt by Mrs Lowe to get it to work by changing the transducer. The result was that the maternal contractions were not recorded on the trace. Mrs Lowe made manuscript annotations on the trace to show contractions at about 11.23, 11.28 and 11.46, but she did not mark all the contractions. She also annotated the trace to show a number of other events, as described below.[26]Also at 11.10, Mrs Lowe carried out a second vaginal examination. She found that the cervix was 3 cm dilated and that the amniotic membranes were bulging. She performed an artificial rupture of the membranes. The fetal heart was heard to be regular throughout the procedure.[27]At about the same time or soon afterwards Mrs A expressed the wish to have an epidural. The possibility of having an epidural had been discussed with Mr Poka when he saw her at 08.10. She said in evidence that her contractions became more painful after rupture of the membranes, so she asked for an epidural. According to Mrs Lowe’s notes, she was informed that the anaesthetist would be in theatre so that she might not be able to have one. The obstetric anaesthetist, Dr Sigston, was bleeped at 11.35, but responded at 11.37 that he would be unable to perform an epidural then as he was preparing for theatre. At 11.43 he came to the delivery suite to say that he would perform an epidural once he was free to commence it. He instructed Mrs Lowe to start an intravenous infusion in 20 minutes. The purpose of this was to ensure that there was sufficient fluid in the body for an epidural. The timing suggested that the anaesthetist expected to be away for about 30 minutes.[28]Meanwhile, at 11.23, Mrs Lowe noted on the trace what she considered to be an “early deceleration". A deceleration is a dip in the fetal heart rate below the baseline and is described as “early” where it coincides with a maternal contraction. On noting the deceleration, Mrs Lowe got Mrs A to sit upright.[29]At about 11.32 there was a short loss of contact on the CTG, which Mrs Lowe marked as such on the trace. Between 11.39 and 11.43 there were further periods of loss of contact which she again marked on the trace, noting at the same time that fetal movements were felt.[30]At 11.43 Mrs Lowe noted (but did not mark on the trace) an early deceleration, with quick recovery to the baseline of 118-122 bpm. The trace was said to be reactive, with fair beat to beat variation. Mrs A was encouraged to lie on her right or left side or in an upright position to facilitate oxygen transfer to the baby.[31]At 11.50 Mrs Lowe noted that Mrs A was requesting pethidine (an oral painkiller) as she was finding the contractions were getting stronger. There was no scar tenderness.[32]At 11.55 Mrs A was turned onto her left side. During the next 2-3 minutes there were two short periods of loss of contact, in relation to which Mrs Lowe also noted that the fetal heart beat was heard regularly.[33]From this point on the precise timing and sequence of events becomes of particular importance, but the evidence becomes correspondingly difficult to reconcile. Timings come from different sources and no single source is authoritative. For example, the CGT trace has the internal machine times printed on it, Mrs Lowe took her timings from the clock in the delivery suite, and Mrs Peers did the same but subsequently confirmed one critical timing with the switchboard (though it is not known what source the switchboard was using for the times it recorded). For the purposes of laying out the factual history I shall refer at this stage to some of the primary material without seeking to reconcile it or to indicate my findings in relation to it. I shall come back to this material, however, when considering the first main issue, which raises the question whether Mr Ogueh was “bleeped” by Mrs Lowe before the start of the operation on Mrs O.[34]At 12.00 Mrs Lowe’s notes record a deceleration down to 90 bpm, with slow recovery. Mrs A was turned onto her left side and there was some improvement to 122 bpm. Maternal contractions were occurring once every two to three minutes and decelerations were noted at each contraction. There was no scar tenderness and no bleeding. Pethidine was deferred. (At the end of her cross-examination Mrs Lowe appeared to accept that the decelerations noted at 12.00 were “late” decelerations. Earlier in her cross-examination, however, she said that she would have noted it if a deceleration had been late; and that, if she had been asked about the position at 12.00, she would have said that there were early decelerations. Her evidence was that the reason for the subsequent crash bleep (see below) was that decelerations were becoming persistent and late. I would hold on Mrs Lowe’s evidence as a whole that the decelerations noted by her against 12.00 were not perceived by her as being late decelerations.)[35]At 12.03 Mrs Lowe’s notes record that Mrs A was given 2 litres of oxygen and remained on her left side, and that Mrs Peers was informed. Corresponding annotations, referring to “2 litres of O 2 given” and “12.03”, were made on the trace against machine times 12.00-12.01. I am satisfied that Mrs Lowe made those annotations.[36]At 12.05 Mrs Lowe’s notes record that the trace was fairly reactive, with a baseline of 121 bpm. Mrs A was in a lot of pain and was crying. She was informed that she would be unable to have pethidine now that the decelerations were present and persistent. She continued to be nursed on her left side. There were said to be no external signs of the second stage of labour and she had no urge to push.[37]I have mentioned that Mrs Lowe's note for 12.03 states that Mrs Peers was informed. Mrs Peers wrote up her note of events at about 13.45, basing it on times and brief details that she had written on her theatre trousers. According to her note, at midday she returned from the ante-natal ward to the delivery suite and Mrs Lowe informed her about the condition of Mrs A. Mrs Peers said in her oral evidence, and I accept, that this was a few minutes after she had returned to the delivery suite. Mrs Lowe informed her that the baby was having “?Type I” (i.e. ?early) decelerations down to 70 bpm, with a quick recovery to a reactive baseline of 120. Mrs A was lying on her left side and breathing oxygen. Mrs Peers’s note also indicates that she was informed by Mrs Lowe that “Mr Ogueh has already been bleeped – in theatre”. Mrs Peers confirmed in her oral evidence that her understanding was that Mr Ogueh had been bleeped before she arrived.[38]Mrs Peers’s note indicates that she went to look at the CTG, and while she was in the room the fetal heart rate decelerated to 60 bpm and did not recover. In her oral evidence she said that the time it did not recover was at 12.10, and that seems to me to fit with the trace. At 12.10, according to her note, Mrs Peers “crash” bleeped Mr Ogueh. A "crash" bleep indicates an extreme emergency and alerts all the members of the obstetric team. The time of 12.10 is the time she subsequently confirmed with the switchboard.[39]According to Mrs Peers, the crash bleep was answered by a member of the theatre staff, to whom she explained the situation, stating that an obstetrician was needed "now". She returned to the patient and began preparing for a caesarean section. Dr Morton (the senior house office in gynaecology) arrived and was told of the emergency. Then, at 12.15, Dr Hill arrived from theatre and did a vaginal examination, decided that an immediate caesarean section was required and informed theatre staff.[40]Mrs Lowe's notes make no reference to her bleeping Mr Ogueh before she informed Mrs Peers of Mrs A’s condition (as recorded in her note at 12.03), and Mrs Lowe could not recall making any such bleep. According to her notes, at 12.12 she bleeped Dr Hill: this was a normal bleep, not a crash bleep. Dr Hill was in theatre with Mr Ogueh. At 12.14 Mrs Lowe received a message from Dr Hill to bleep Dr Morton. Dr Morton arrived at 12.16. Mrs A was noted to be in severe pain (“pain ++”) and scar tenderness was noted for the first time.[41]The next entry in the main set of notes – breaking a long run of entries made by Mrs Lowe – was by Dr Hill, at 12.20. Dr Hill’s evidence was that she was assisting Mr Ogueh with the caesarean operation on Mrs O when her bleep went off. She was unable to answer it and did not expect it to be urgent (thus it was a normal bleep, not a crash bleep). She asked one of the theatre staff to answer it and let the labour ward staff know that they were in theatre and to call Dr Morton. A little while later Dr Hill’s crash bleep went off. At that stage they had delivered Mrs O’s baby but Mr Ogueh was trying to control the blood loss and achieve haemostasis. He released Dr Hill from the theatre while he carried on. She noted in the records that the time of her response to the crash bleep was 12.20. She noted fetal bradycardia down to 50-60 bpm, prolonged. The cervix was 3 cm dilated. She decided on an immediate caesarian section.[42]In relation to the summoning of medical assistance I should also refer to the evidence of Mr Ogueh. He made a note at 14.45 on the same day. His note records that from about 12 noon he was in theatre performing a caesarean section on Mrs O. During that time he was bleeped to say that Mrs A’s CTG was having decelerations. Since he and Dr Hill were involved in performing the caesarean section he requested that Dr Morton be bleeped to see the CTG. Later he was crash bleeped to go to the delivery suite. At this time he had just delivered Mrs O’s baby and was trying to achieve haemostasis. He requested Dr Hill to go to see Mrs A, and requested that Mr Farkas be crash bleeped. (The main notes record that a crash bleep was put out to Mr Farkas and all other obstetric staff at 12.35 and that Mr Farkas - who was in fact already en route from St Barthomolew’s, where he had been carrying out a ward round - arrived at the delivery suite at 12.45. Nothing turns, however, on this later crash bleep or on Mr Farkas’s involvement.)[43]What happened next is that Mrs A was moved to the transfer bay next to the obstetric theatre. The move was recorded at 12.20 in Mrs Peers’s notes, but would have been a few minutes later on the timings given by Mrs Lowe and Dr Hill. Mrs Peers expected the theatre to be free by now, but the operation on Mrs O was still in progress. There was no other theatre available, because limited facilities were open (it being a Saturday) and the theatre for general surgery was also in use. Some time was therefore spent in making alternative arrangements.[44]It was decided to take Mrs A to a room in the labour ward which could be used as a theatre but had to be prepared for the purpose. Dr Hill collected a team for the operation. Fortunately the senior registrar in anaesthetics, Mr Yarwood, was in the hospital’s intensive care unit and came across at once. By the time he arrived everything else was ready, since he started anaesthesia "pretty well straight away". His note puts this at about 12.35. The operation itself was carried out initially by Dr Hill, who opened the abdomen. Mr Ogueh then left Mrs O in order to complete the caesarean section on Mrs A and deliver her baby. Mrs A's baby was delivered at 12.44.

The delivery of Mrs O’s baby: the facts

[45]Mrs O was pregnant for the fourth time. Her first child had been born by caesarean section, the second normally (by trial of scar) and the third by caesarean section. On this occasion she was admitted to hospital on 15 March 1994 and was in the ante-natal ward.[46]On 19 March Mr Ogueh saw Mrs O at 10.30 in the course of his ward round. At 10.55 he discussed her case by telephone with the consultant on call, Mr Setchell, and the decision was taken to perform an emergency caesarean section on her. It is unnecessary to consider in any detail the circumstances that led to the decision, but there was evidence of fetal distress and I accept the view of Professor Bennett that the CTG trace was very bad and that there was a need to effect delivery “pretty quickly”.[47]Arrangements were then made in preparation for the operation. Dr Hill helped to arrange things while Mr Ogueh carried on with the ward round. The anaesthetist lined up for the operation was Dr Sigston; and it was this operation that was in prospect when he told Mrs A that she would have to wait before he could give her an epidural.[48]Mr Ogueh went to the theatre by about 11.45 to prepare for the operation. It is clear from his evidence and that of Dr Sigston that induction of anasthaesia would not be commenced until the surgeon was present, scrubbed up and ready for the operation. Mrs O was being given a general anaesthetic and, because of its potential effect on the baby, it was important to minimise the time between induction of the anaesthetic and delivery of the baby.[49]According to Dr Sigston’s detailed record, induction of anaesthetic commenced at 12.03. It is likely that induction of anaesthesia took place in the theatre itself rather than in the anaesthesia room, consistently with the objective of minimising the time before delivery of the baby.[50]The operation on Mrs O was more complex and longer than expected. What started as an intended lower segment caesarean section ended up as a classical caesarean section. The details, however, do not matter for present purposes. The anaesthetist’s chart records that Mrs O’s baby was delivered at 12.16.[51]I have referred already to the receipt of bleeps while the operation was in progress and to the fact that, once the baby was delivered, first Dr Hill and then Mr Ogueh had to leave to carry out the caesarean section on Mrs A. The operation on Mrs O was in fact completed by Mr Farkas, following his arrival from St Bartholomew’s while the operation on Mrs A was in progress.

The issues

[52]The claimant’s case has undergone a very marked change over time. Many of the allegations of negligence made in the particulars of claim have fallen away. Some remain only by way of “background issues”, it being accepted that even if there was negligence it was not causative of damage. The point that was put at the forefront of the claimant’s case in closing was not articulated in the pleadings or in the claimant’s opening submissions. In the circumstances I propose to confine my attention to the matters identified in Mr Mott’s closing submissions. In my judgment he was right not to pursue any of the other matters, which could not be sustained on the evidence.[53]The claimant contends for liability on any or all of the following bases:(1) Mrs Lowe bleeped Mr Ogueh before he started the caesarean section on Mrs O, and at a time when the information was available which is written in the notes against 12.00. In that event the caesarean section on Mrs O should have been delayed, at least to observe Mrs A, and the consequence would have been that Mrs A’s case would have taken priority and the claimant would have been delivered undamaged by 12.30.(2) Mrs Lowe ought to have called for medical assistance before the start of the caesarean section on Mrs O, even if it is found that she did not in fact do so.(3) Mr Ogueh ought to have gone to review Mrs A without being called, just prior to starting the caesarean section on Mrs O.[54]Mr Mott seeks to boost his case in relation to the second and third of those contentions by reference to a number of features of the management of Mrs A’s labour which are alleged to show a carelessness of approach which underlies the case. Although it is accepted that they were not directly causative of damage, they seem to be relied on by way of encouragement to the court to make a finding of negligence against Mrs Lowe or Mr Ogueh on one or other of the main issues. For my part, I do not consider that they help in relation to the main issues, but for completeness I will to deal with them separately at the end of my judgment.

Issue (1): whether Mrs Lowe bleeped Mr Ogueh before the operation on Mrs O

[55]The claimant’s case is that Mrs Lowe bleeped Mr Ogueh just before the operation on Mrs O commenced. If he did receive a bleep at this time, he should have responded to it, either by going himself or by sending Dr Hill to assess Mrs A, and in either event delaying the operation on Mrs O until that assessment had been made. Had such an assessment been made, the decision would have been taken that Mrs A needed an emergency caesarean section and that she needed priority over Mrs O. The operation on Mrs could have been carried out very speedily since the theatre was already set up and the staff were in place for the operation on Mrs O. The operation on Mrs A could have been delayed, without danger to Mrs O or her baby, until after completion of the operation on Mrs A.[56]The evidence relating to this issue is unsatisfactory and it is impossible to be sure of the precise sequence of events and their timings. On the balance of probabilities, however, I am of the clear view that Mrs Lowe did not bleep Mr Ogueh before the commencement of the operation on Mrs O. For this purpose I take the commencement of the operation to be the time at which anaesthesia was induced, since the operation needed thereafter to progress with all due speed because of the potential effect of the anaesthetic on the baby. That time can be taken to be 12.03, on the basis that timings are of particular importance for an anaesthetist and that his record of the time is therefore more likely than not to be accurate (though it has to be acknowledged that the source of the anaesthetist’s timings was different from that in the delivery suite and that the timings are not therefore directly comparable). But it would make no difference to my conclusion if, instead of taking the time at which anaesthesia was induced, I were to take the short time later when actual surgery commenced.[57]The high point for the claimant is the evidence of Mrs Peers. She says that when she was called in by Mrs Lowe to see Mrs A a few minutes after she returned to the delivery suite at midday, she was told by Mrs Lowe that Mr Ogueh had already been bleeped. The note she wrote states in terms:
“Mr Ogueh has already been bleeped – in theatre”
. As already indicated, that note was written soon after the event, at about 13.45, and was based on timings and brief details she had written on her theatre trousers. In her witness statement she referred to the fact that Mr Ogueh had been bleeped as one of the reasons why she was satisfied that appropriate action had been taken by Mrs Lowe. If her evidence on this point is accurate, then it would indicate that Mr Ogueh had been bleeped at some point before 12.05 on Mrs Lowe’s timings, since the reference in Mrs Lowe’s notes to Mrs Peers being informed is at the end of the entry for 12.03, with the next entry timed at 12.05; and Mrs Peers herself said in evidence that she thought she arrived about 2 minutes after the “12.03” written on the trace. Even that may not be early enough for the claimant's purposes, given the 12.03 starting point for the operation on Mrs O. But there are deeper reasons why this part of Mrs Peers's evidence cannot carry the weight that the claimant seeks to place upon it.[58]In my judgment the thrust of the evidence, taken as a whole, supports the following sequence of bleeps and responses:(1) A normal bleep by Mrs Lowe to one of the doctors (either Mr Ogueh or, more likely, Dr Hill). This was received while the operation on Mrs O was in progress. The response, conveyed through one of the theatre staff, was that Dr Morton should be called to look at Mrs A.(2) A bleep to Dr Morton, which resulted in his prompt attendance to look at Mrs A.(3) A crash bleep by Mrs Peers to the obstetric team, which was received by Mr Ogueh and Dr Hill when Mrs O's baby had just been delivered. Mr Ogueh’s response was to release Dr Hill from the theatre to attend to Mrs A.[59]As regards (1), I consider it highly unlikely that there were two normal bleeps by Mrs Lowe at different times, the first to Mr Ogueh and the second to Dr Hill. Mrs Lowe herself recorded only the one to Dr Hill and could not recall making one to Mr Ogueh, nor could she recall telling Mrs Peers that Mr Ogueh had already been bleeped. Dr Hill recalled that her bleep went off while they were in the theatre performing the operation on Mrs O and that she asked that Dr Morton be called. Mr Ogueh recalled that he was bleeped while he and Dr Hill were busy in theatre, and that he requested that Dr Morton be asked to see the CTG. That evidence accords with the note he wrote at 14.45. The likelihood in my view is that Dr Hill and Mr Ogueh were referring to one and the same bleep, received while they were performing the operation, and that the response to that one bleep was to ask that Dr Morton be called. The bleep was probably to Dr Hill and was misdescribed and then misremembered by Mr Ogueh as a bleep to him. In practical terms it made no difference which of them received it. Neither of them was able to answer it in person, since they were performing the operation, and it was answered for them by one of the theatre staff through whom the message and the response were then conveyed.[60]The weight of the evidence concerning that normal bleep strongly favours the view that it was received during the operation rather than before it.[61]In addition to the matters already covered, I am satisfied on the evidence of Mrs Lowe that prior to 12.03 she herself was not sufficiently concerned about the condition of Mrs A or the baby for her to bleep the medical team. By 12.03 or soon afterwards she considered the decelerations to be sufficient to warrant informing Mrs Peers, which she did. Mrs Peers had been in a different part of the hospital until about 12.00, but she was back on the labour ward by the time Mrs Lowe informed her. It was only after Mrs Peers had been informed that the medical team was bleeped.[62]Mr Mott sought to argue, by reference to Mrs Lowe's notes, the markings on the trace and some of Mrs Lowe's answers in cross-examination, that by about 12.00 she must have perceived there to be abnormalities that would make it essential to call for medical assistance; and that, since Mrs Peers was away from the ward until about 12.00, Mrs Lowe herself would have made a direct bleep to the medical staff. The suggestion was not put in those terms to Mrs Lowe in cross-examination, but in any event I find as a matter of fact that Mrs Lowe did not have that perception and that she did not call for medical assistance at that time. Whether she should have done so is a separate issue, which I consider later; but my findings on that issue, namely that up to 12.00-12.01 (CTG machine time) there was nothing abnormal that ought to have caused Mrs Lowe to call for medical assistance, reinforce my finding that she did not in fact call for medical assistance at that time.[63]At one point Mr Mott sought to argue that the deceleration marked in manuscript at "12.03" on the trace might have occurred at 11.58 real time. He also contended that what was recorded in Mrs Lowe's note against the time of 12.00 must be a record of information available by then, not of events after that. All of this was aimed at increasing the period between the possible development of abnormalities in Mrs A's delivery and the commencement of the operation on Mrs O at 12.03, and thus at strengthening the case that Mrs Lowe called or should have called for medical assistance before the commencement of that operation. I did not find any of this persuasive. I consider it no more likely that the machine timings are faster than real time than that they are slower, and none of the sources of times is inherently more likely than the others to represent real time. I consider it more likely that what is recorded against a particular time in Mrs Lowe's notes happened after the stated time rather than before it, but there is bound to be some degree of approximation in the recording of any of these times. There is moreover a danger of getting bogged down in unreliable detail over precise timings. On the question whether Mrs Lowe made a call to Mr Ogueh before the commencement of the operation on Mrs O, I would place greater weight on consideration of the broader picture.[64]Mr Mott also sought to deploy some evidence of Mrs A and her husband in support of the contention that Mrs Lowe must have called for medical help at about 12.00. Mrs A stated that she and her husband were often left in the delivery room for quite long periods on their own and that her husband left her three times to tell the midwife she was in severe pain. "She was on the telephone and only came at his third request as he was adamant that he should. This took at least 10 minutes." This appears in her narrative before her request for an epidural, which was at 11.10 according to Mrs Lowe's notes. On the face of it, therefore, it is of no assistance whatsoever to the claimant. Mr Mott submitted, however, that her evidence must be read in conjunction with that of her husband, who stated:
"On three separate occasions, I asked a midwife to come in and assist [my wife] with her pain, and when she finally came into the room, she noticed that the baby's heartbeat had dropped quite considerably. The midwife called for a more senior midwife to come and assess the situation. The senior midwife told us that [my wife] should be prepared for an emergency Caesarean section."
That would appear to place it soon after 12.00.[65]In my view, however, it would be wrong to place much weight on that point, for a number of reasons. First, Mr A did not himself say that Mrs Lowe was on the telephone when he asked her to come in and assist on the third occasion. Secondly, on the face of his evidence it was after she came in, rather than before, that she noticed a drop in fetal heartbeat – which does not support the contention that she was on the telephone to bleep Mr Ogueh because she was already concerned about the position. Thirdly, the issue was not explored in cross-examination either of Mr A or of Mrs Lowe, for the simple reason that it had not emerged in this form at the time when they gave evidence. In short, this evidence of Mr and Mrs A, whether by itself or in conjunction with the other matters relied on by Mr Mott, cannot support the conclusion that Mrs Lowe used the telephone to bleep for medical assistance before calling for Mrs Peers.[66]A further consideration is that, although I treat Mr Ogueh's evidence with a degree of caution because he was so defensive of his own position, I think it likely that he would have remembered, or would have recorded in the note he wrote at 14.45, the receipt of a bleep before the operation started; and I am satisfied that he would not have ignored or failed to act on a bleep if he had received one. He said in evidence that if he had received a bleep at about 12.00 he would have answered it and found out what the matter was, and that if the midwife had been concerned about Mrs A he would have had a conversation with her. If he had been told about the trace up to that point, he would have told her not to worry and that he would come to see her after the operation on Mrs O, or he would have agreed a management plan that might involve her calling the senior registrar if she had concerns. I accept that evidence, which (as considered below) accords with the views of Professor Bennett about the significance of the trace at that point. Its significance in the present context is that any bleep at that point would have triggered at least a conversation and consideration of the case, which in all probability would have been noted or recalled had it occurred. In the circumstances the fact that there is no record or recollection of any response to a bleep prior to the operation on Mrs O can be relied on as an indication that there was no such bleep. The first bleep came later, during the operation, as the records and recollections show.[67]On this issue I cannot fit Mrs Peers's note or evidence satisfactorily into the overall picture, though it is worth mentioning that even the note, when stating that Mr Ogueh had already been bleeped, goes on to say "- in theatre", which is at least consistent with the proposition that Mr Ogueh was performing the operation on Mrs O at the time of the bleep. Notwithstanding Mrs Peers's note and my acknowledgment of her as a careful witness, the evidence as a whole leads me to find the overall picture to be as I have stated it.[68]By way of postscript on this issue, since that is all I think the point deserves, I should mention one additional point advanced by Mr Mott. Certain of the timings on the theatre records of Mrs A and Mrs O have been altered at some stage. The theatre manager, Mr Georghiou, explained that those relating to Mrs A were probably altered because the computer system would not accept input relating to two operations attributed to the same theatre at the same time (the operation on Mrs A being attributed to the obstetrics theatre even though it actually took place in the delivery suite). In the case of Mrs O, the time for induction of anaesthesia was altered from 12.00 to 11.40 and the time for entry into theatre was also altered. Mr Georghiou did not know who altered those timings and did not give any specific explanation for it. Mr Mott suggested a sinister explanation, namely that the alteration was made by someone in order to support the case that Mrs O was already anaesthetised when a bleep was received at or before 12.00. I reject that suggestion. There is no evidence to support it. All the other timings in respect of Mrs O and Mrs A were available in any event, and it is impossible to see how an alteration of the theatre records could have been of any assistance to anybody. Moreover, I do not doubt the good faith of any of the hospital staff whose evidence I heard.[69]Accordingly, I reject the claimant's submission that Mrs Lowe did in fact bleep Mr Ogueh before he commenced the operation on Mrs O.

Issue (2): whether Mrs Lowe ought to have called for medical assistance earlier

[70]The claimant's case here is that, if Mrs Lowe did not in fact bleep Mr Ogueh before the operation on Mrs O commenced at 12.03, she ought to have done so and her failure to do so was negligent. In support of that case, reliance is placed on(i) the presence, as it is contended, of persistent and late decelerations by 12.00,(ii) the fact that Mrs A was complaining of severe pain, such that her husband sought Mrs Lowe on three occasions and insisted that something was done, and(iii) the views of the experts.[71]In my judgment the issue depends largely on the expert evidence. I should first comment briefly, however, on the other matters relied on.[72]First, it is true that Mrs Lowe's note for 12.00 not only records, at the beginning of the entry, a deceleration down to 90 bpm with slow recovery but also records, at the end of the same entry, "decelerations noted at each contraction". On my reading of that, it is a reference to the position from 12.00 rather than to the position as it had been in the period up to 12.00. That is not only the better reading of the note itself, but also accords better with the evidence of Professor Bennett, considered below, as to what is shown by the trace. In any event, as I have already found, Mrs Lowe did not in fact perceive there to be a problem warranting a call for medical assistance at 12.00, and Professor Bennett’s evidence, considered below, supports the view that her perception was a perfectly reasonable one.[73]As to Mrs A's pain and request for pethidine, Mrs Lowe regarded it as part of the normal labour process and checked to ensure that there was no scar tenderness such as might be associated with rupture of the scar. Both Professor Bennett and Mrs Brydon were also of the view that this was normal and consistent with a normal labour. As explained below, I accept that evidence in preference to the views of the claimant’s experts.[74]I turn to consider the views of the experts more generally. In his oral evidence Professor Bennett was of the firm opinion that the first unequivocal deceleration on the trace was that occurring at 12.00-12.01 machine time (marked in manuscript as 12.03 on the trace). The trace up to that point, viewed prospectively, was entirely normal and highly reassuring. There was nothing that should have caused Mrs Lowe to get a medical opinion, whether or not she knew that Mr Ogueh was going into theatre. As he expressed it in cross-examination:
"If I had walked into the delivery room at this point I would have said this is entirely normal and gone to do the caesarean section [on Mrs O]"
. Furthermore, it was his view that, on the occurrence of the deceleration at 12.00-12.01 machine time, it was reasonable in the circumstances for Mrs Lowe to wait for a little while (up to about 10 minutes) to determine whether there were persistent decelerations. A single deceleration would not be significant, but if there were persistent decelerations (his rule of thumb being decelerations accompanying three contractions), he would want to know about it. It was only by about 12.08 that he would have expected a doctor to be called.[75]Professor Walker was of a materially different view. In his opinion there were signs of rupture by 11.55-12.00. He relied on the early deceleration noted on the trace at 11.23 and the further deceleration recorded in Mrs Lowe's notes at 11.43. He also said that there were other, variable decelerations during the period from 11.23 and that there was a rise in the baseline, so that there was evidence overall that the fetal heart rate was changing. The combination of that with Mrs A's increasing pain, as evidenced by her request for pethidine at 11.55, supported a diagnosis of rupture and meant that action should have been taken.[76]Neither expert's view was fully consistent with what had been said in their joint report:(1) In relation to the period 11.55 to 12.00, the joint report records Professor Bennett as feeling that certain matters "may be signs of uterine rupture viewed retrospectively but these would not necessarily have been considered as such prospectively" (emphasis added). In cross-examination he retracted "necessarily" and maintained the more emphatic view that they would not have been considered to be signs of rupture when viewed prospectively.(2) In the case of Professor Walker, the inconsistencies went deeper, in that the joint report recorded his agreement that the trace showed no indication of a problem in any period from 11.20 to 11.55. Moreover the additional decelerations that he identified in his oral evidence as having occurred during that period were not supported by other witnesses. In particular, Professor Bennett disagreed with his identification of them. Professor Bennett also disagreed with his view that there was a rise in the baseline (as opposed to a period of increased reactivity) in the period leading up to 12.00. He pointed to an almost identical feature in the trace just after 8.30 that morning. In his view there was nothing abnormal about it. Nor, as I have said, did he consider there to be anything abnormal about Mrs A's pain or request for pethidine.[77]Mr Mott relied on a passage in the individual report of Professor Bennett in which he had said that "[o]nce decelerations were noted at 12.00 hrs the increase in pain that Mrs Allen was experiencing together with the fetal heart rate abnormalities made it clear to all of those involved that [Mrs A] needed urgent delivery". He submitted that Professor Bennett's later evidence downplaying this should not be accepted. If, as Mr Mott invited the court to find, the necessary information was there at 12.00, Professor Bennett must be taken to have been saying that urgent delivery was necessary. For my part, however, I would read that passage in Professor Bennett's report as referring to the position as it developed from 12.00. There is no inconsistency between what was said there and what was said by Professor Bennett in his oral evidence. He clearly did not consider that the information available at 12.00 showed an urgent delivery to be necessary.[78]I have already indicated my general preference for the evidence of Professor Bennett where the two experts disagreed. This is one of those areas. I accept Professor Bennett's interpretation of the trace, his opinion that the position up to the deceleration at 12.00-12.01 machine time was normal and reassuring, and his opinion that it was reasonable for Mrs Lowe to wait thereafter until about 12.08 before calling for medical help.[79]The disagreement between Professor Bennett and Professor Walker was substantially echoed by the midwifery experts. Mrs Brydon was of the opinion that there was nothing that required Mrs Lowe to call the medical staff before 12.00. What happened from about 12.03 made it appropriate to call the co-ordinator, Mrs Peers, and medical help was then called at the time when Mrs Brydon would have been looking to call it. Mrs Christophe, on the other hand, was of the opinion that medical staff should have been alerted following the early deceleration at 11.43, and that this was reinforced by the request for pethidine which is recorded in the notes at 11.50 and by the drop in the fetal heart rate shown on the trace at 11.59 machine time. Again, consistently with my general preference for the evidence of Mrs Brydon, I accept what Mrs Brydon said on this issue. Mrs Christophe’s interpretation of the evidence was in my view less accurate and reliable, and her criticisms of Mrs Lowe were unjustified.[80]It may not be strictly necessary, however, to go so far as to favour the evidence of Professor Bennett and Mrs Brydon on this issue. It may be sufficient to point to the existence of a disagreement between the experts on whether, at any point prior to 12.03, there was evidence of abnormalities that ought to have prompted Mrs Lowe to call for medical help. If Professor Bennett and Mrs Brydon saw nothing abnormal in what was happening up to 12.00-12.01, and would not have expected medical help to be called until about the time when it was called, Mrs Lowe cannot sensibly be held to have fallen below the relevant standard of care by failing to call for such help prior to 12.03.[81]There is a further, more general point on which I should touch before leaving this issue. A theme running through the claimant’s case, which underlies this issue and the next, was that a trial of scar requires special management because of the risk of scar rupture, the serious and potentially fatal consequences if a rupture does occur, and the very short period available from rupture to delivery if such consequences are to be avoided. Thus it was contended that in a case of trial of scar it is essential to try to anticipate problems and to react early. Amongst other things, the presence of persistent decelerations should lead a midwife to call for medical assistance even without other signs of fetal compromise.[82]The general tenor of the evidence of Mrs Brydon and Professor Bennett, which I accept, is that trial of scar is relatively commonplace in the hospitals where they work and that the appropriate management of labour is in broad principle the same in a trial of scar as in other cases. In each case the midwife looks out for abnormalities in the fetal heart rate and for other problems, exercising her professional judgment. She does not summon medical assistance merely because something occurs that might be a sign of a problem. She monitors developments and waits until she has sufficient concerns to make it appropriate to inform the co-ordinator or to call for medical assistance. She will be aware of the potential significance of any problems and may not wait as long in a case of trial of scar, but the general approach is the same. The same standards apply where the midwife knows or ought to know that the obstetrician will be unavailable in theatre for a period of time. It is still only if she has real concerns about the patient that she will call for him. Although it is always possible that emergencies will occur (something that is true not only of trial of scar but of other deliveries too), that does not affect the management of the patient. There is no warrant for taking the obstetrician away from other functions in the absence of such concerns.[83]In my view Mrs Lowe acted in accordance with that general approach and her decision not to call medical assistance earlier than she did was a reasonable exercise of judgment on her part.[84]For those reasons I reject the claimant’s case that Mrs Lowe ought to have called for medical assistance at a point before Mr Ogueh had commenced the operation on Mrs O.

Issue (3): whether Mr Ogueh ought to have reviewed Mrs A without being called

[85]The claimant's case is that Mr Ogueh ought to have gone to review Mrs A in any event, just before commencing the operation on Mrs O. The blocking of the only available theatre by the operation on Mrs O entailed a risk, especially given the speed of reaction needed if something went wrong with Mrs A’s trial of scar. A proper risk assessment could only be carried out on up to date information. It was not good enough to rely on information that had not been updated, so far as the doctor was concerned, since 08.35, and on the subsequent silence of the midwife. There was no reason why Mr Ogueh could not have visited Mrs A, or sent Dr Hill to visit her, before starting the operation. On the physical layout of the hospital Mrs A was only just around the corner, "39 steps away". The logical time to assess the risk would have been when all was ready to go with Mrs O, at about 12.00. Had a doctor visited Mrs A at that time, the matters listed in Mrs Lowe's notes at and after 12.00 would have been noted and it would have been apparent that the operation on Mrs O should be delayed in order to dealwith Mrs A.[86]A number of points were advanced by Mr Mott in the lead-up to that conclusion, though some of them seemed to be directed towards showing a general lack of care on the part of Mr Ogueh rather than leading specifically to the conclusion that he ought to have reviewed Mrs A before starting the operation on Mrs O.[87]First, it is said that Mr Ogueh failed to keep Mrs Peers informed of the progress (or lack of progress) of Mrs O's caesarean section, so that Mrs Peers, as she stated in her evidence, was surprised to find that the theatre was still in use at 12.20. I am satisfied, on the basis of her evidence, that Mrs Peers was informed at about 10.55 that a patient from the ante-natal ward was going for an emergency caesarean section. I also accept her evidence that she expected it to take overall about an hour from the decision to carry out the caesarean section to completion of the operation. No doubt that is why she was surprised that the operation was still in progress at 12.20. I do not accept, however, that Mr Ogueh was under a duty to update her about the progress of the operation. What seems to have happened is that the operation started slightly later than expected and took somewhat longer than expected. It was not necessary for Mr Ogueh to inform Mrs Peers of those matters. Nor would the outcome for Mrs A have been any different if Mr Ogueh had informed Mrs Peers of them.[88]The next contention is that Mr Ogueh ought to have assessed Mrs A's labour either within 3 hours (the time specified in the hospital’s protocol on trial of scar delivery) or within 4 hours after Professor Poka’s initial assessment of her at 08.10 or after the time when Mr Ogueh himself saw her on his 08.35 ward round.[89]Mr Ogueh’s witness statement created the impression that between 11.00 and 12.00 he was so occupied in preparing for the operation on Mrs O that he would not have been available to review Mrs A in any event. He accepted in cross-examination, however, that he might have been able to create time to see Mrs A had there been a need. I am satisfied that he could have gone to see her, though he did not have much time to do so. He was engaged in the completion of his ward round and then in preparations for the operation on Mrs O, so that a visit to Mrs A would probably have delayed the operation on Mrs O. The issue is whether he ought nonetheless to have gone to see her.[90]The protocol states:
“Regular assessment of progress at least three-hourly is required by the Registrar”
. I am doubtful about Mr Ogueh’s interpretation of the protocol as referring only to the period of established labour, which in this case appears to have been at about the time of the vaginal examination at 11.10. The protocol is, however, only a guideline, and neither of the obstetric experts was of the view that further assessment was required after 3 hours. I am satisfied that non-compliance with the protocol was not negligent. I also reject the submission by Mr Mott that non-compliance with the protocol by Mr Ogueh amounted to flagrant disregard of it and demonstrated a cavalier attitude on his part.[91]The agreed position of the obstetric experts, as expressed in their joint report, was that the minimum attendance expected would be approximately every 4 hours (morning, midday, 5 pm and 10 pm), but that some flexibility was permissible to allow for other clinical activity in the hospital. The joint report went on to record a difference of view about the implications of Mr Ogueh’s unavailability in the operating theatre. Professor Walker’s view was that if the clinical situation was going to make Mr Ogueh temporarily unavailable it was mandatory for him to attend the delivery suite prior to this to assess the situation. Professor Bennett’s view was that given that Mr Ogueh had undertaken a morning ward round and was aware of the work load on the delivery suite, it was not mandatory for him to return before the midday round.[92]In one of his points of clarification in respect of the joint report, Professor Walker stated that he felt it was mandatory for Mr Ogueh to visit the delivery suite prior to going to theatre to assess all that was going on there. By going to theatre at 12.00 he knew that he would not be able to attend the delivery suite until 13.00 at the earliest. He was not going to be able to do his midday ward round, therefore it would be around 4.5 hours between his attendances, which potentially put the patients in the delivery suite at risk. The combination of acting without up to date knowledge and the time since last attendance made this substandard care.[93]Professor Bennett elaborated on his views in his oral evidence. He did not agree that it was substandard care for Mr Ogueh not to review Mrs A before carrying out the operation on Mrs O. Mr Ogueh had seen Mrs A on the 08.35 ward round, when she was in early labour. It was entirely reasonable for him, in deciding whether to go into theatre, to rely on the fact that the midwives had not called him since to report any concerns. The fact that no concerns had been expressed meant that he had the information necessary for making a risk assessment before going into theatre. A registrar is entitled to rely on silence to reassure himself, in relation to other patients in labour, that the fetal heart rate is fine and there are no other problems. Although it was possible that in consequence the registrar would not have fully up to date information at the point he went into theatre (in that the midwife might have detected a possible problem and be waiting a few minutes to check the position before contacting the doctor), it would still be reasonable for him to go into theatre if he had heard nothing from the midwife. It is something that almost every registrar would do.[94]Thus Professor Bennett was of the plain view that it was reasonable for Mr Ogueh to carry out the operation on Mrs O without first reviewing Mrs A, and then to attend on Mrs A during his ward round immediately after the operation. That ward round would have been somewhat more than 4 hours after the last visit, but Professor Bennett evidently considered that to be consistent with the flexibility to which (as the experts stated in their joint report) the requirement of attendance approximately every 4 hours is subject.[95]Here too I prefer and accept the views expressed by Professor Bennett, which in my judgment represent a sensible and realistic approach. It seems to me that the system would be close to unworkable if a doctor in the position of Mr Ogueh were required, before commencing an operation on one patient, to go round to check that no problem had developed with other patients on the wards. The system works in practice through close co-operation between doctors and midwives, each exercising their own professional judgment. If a midwife has sufficient concerns about a patient, she will call for the doctor. In the absence of any call, a doctor is generally entitled to assume that nothing has arisen to give rise to sufficient concerns to warrant his attendance. That is a reasonable approach even in a case where the consequence of commencing the operation on one patient will be to delay an operation on another patient should an unexpected emergency arise.[96]On this issue too the disagreement between the obstetric experts was echoed by a disagreement between the midwifery experts. Mrs Christophe went even further than Professor Walker, maintaining that she would have expected Mr Ogueh to review Mrs A every 3 hours – a view which coloured much of her other evidence. Mrs Brydon’s opinion was that that did not accord with clinical practice and that in her experience 4 hourly visits would be usual. Mrs Brydon also stated that she would not have expected Mr Ogueh to see Mrs A before the operation on Mrs O. It would be usual for the doctors to rely on the midwife to alert them if there was a problem. I found Mrs Brydon, like Professor Bennett, wholly convincing on this.[97]In my judgment it cannot have been negligent for Mr Ogueh to act in accordance with a practice that both Professor Bennett and Mrs Brydon considered to be normal and acceptable.[98]Moreover, even if Mr Ogueh had gone to see Mrs A at any time up to 12.00, I accept his evidence that he would not have been concerned by what he saw and he would have decided to carry on with Mrs O’s operation. As Professor Bennett’s evidence makes clear, that would have been a reasonable decision to make. Indeed, the probability is that, if Mr Ogueh had gone to review Mrs A before commencing the operation on Mrs O, he would have done so well before 12.00; and the longer before 12.00 he would have gone, the further away the claimant gets from showing that there was anything that could possibly have caused him to decide to postpone the operation on Mrs O and to concentrate on Mrs A instead.[99]Accordingly, I reject the claimant’s case that Mr Ogueh was negligent in failing to go to review Mrs A before commencing the operation on Mrs O. I also hold that any failure was not causative of any injury, in that Mr Ogueh would have taken the reasonable decision to carry on with the operation on Mrs O even if he had gone to review Mrs A beforehand.

Other matters of complaint

[100]As I have mentioned, it is submitted on behalf of the claimant that there are a number of features of the management of Mrs A's labour that are significant as showing a carelessness of approach which underlies the case, even though not directly causative of damage. I have dealt already with the matters that are alleged to be causative of damage. The other matters do not strictly arise for decision. For completeness, however, I should deal briefly with them.[101]Criticism is made of the fact that there was no electronic fetal heart rate monitoring between 08.45 and 11.10. In his report Professor Bennett agreed that there should have been continuous electronic monitoring during this period and that this is what was indicated in the hospital's protocol (which provided that in a case of trial of scar "[f]etal monitoring should be performed throughout labour"). Having heard the evidence that Mrs A was not regarded as being in established labour until later in the morning, he modified his previous criticism, stating that it would have been optimal to have continuous monitoring but that the failure to do so was not completely unacceptable. I accept his evidence on that. In any event, however, as Professor Bennett stated in his report, the lack of monitoring between 08.45 and 11.10 had no effect upon the case.[102]Criticism is also made of the fact that Mrs Lowe took a break between 10.20 and 11.00 without arranging cover. The midwifery experts agreed that it was acceptable for Mrs Lowe to take that break. Mrs Christophe said that it was mandatory for Mrs Lowe to arrange for another midwife to check on Mrs A during her absence. Mrs Brydon did not agree, stating that a midwife will use her clinical judgment according to the situation and will be guided by unit practice and staff availability. The obstetric experts agreed that it was acceptable to take the break. They felt that the question of cover was a midwifery issue but would have expected that another midwife should have been informed and have looked in on Mrs A. Taking the evidence as a whole and placing weight on my general preference for Mrs Brydon’s evidence over that of Mrs Christophe, I would not be inclined to make any adverse finding in relation to Mrs Lowe’s break. The issue is in any event entirely academic.[103]The next matter of criticism is that Mrs Lowe used a CTG machine which, after 11.10, failed to record contractions, and that she did not remedy this by marking all contractions on the trace. The midwifery experts, in their joint support, agreed that it was acceptable for her to use the machine provided that she was convinced that it was working and the fault in recording lay elsewhere. Their other comments indicated that it would be usual practice to note the contractions in one way or another (whether by writing them on the CTG or recording them in the text or on the partogram). In her oral evidence Mrs Brydon accepted that the fact that the CTG was not working properly was sub-optimal, but said that having heard the full evidence, including the efforts made by Mrs Lowe to get a better transducer, she felt that she had been harsh on her. The obstetric experts agreed that there was no need for a contraction monitor as long as the midwife was palpating the contractions, which Mrs Lowe appears to me to have been doing. Overall I do not think that any real criticism of Mrs Lowe can fairly be sustained on this point.[104]A further criticism is that Mrs Lowe did not communicate with obstetric staff even though she knew that an operation was planned that would take up the only available obstetric theatre. It is contended that she should have so communicated, in the light of(i) Mrs A's expressed preference for a caesarean section at 09.45,(ii) Mrs A's request for an epidural at 11.10,(iii) the fact that Mrs Lowe had carried out a vaginal examination and an artificial rupture of membranes at 11.10,(iv) the fact that there had not been an assessment by the registrar after 3 hours, as provided for by the protocol, and(v) the fact that she thought that the labour was speeding up near 12.00. In my view this is sufficiently covered by the findings and general observations I have made in relation to issues (2) and (3). Mrs Lowe acted reasonably in not contacting the medical staff. There was nothing about Mrs A’s condition that should have caused her to contact the medical staff earlier than she did.[105]A final cricitism is that Mrs Peers did not visit the delivery suite where Mrs A was in labour between 08.05 and 12.00, despite(i) knowing that this was a trial of scar and(ii) knowing at or about 10.55 that the only obstetric theatre available that day was to be blocked by an operation from the ante-natal ward. Again I do not consider that any such criticism can fairly be sustained. Mrs Lowe was a reasonably experienced midwife and Mrs Peers was entitled to rely on her to exercise her judgment and to make contact if she had concerns, as indeed occurred. There was no reason for Mrs Peers to interrupt her other work to check on Mrs Lowe in the absence of any communication from her.[106]I therefore take the view that the various matters of complaint to which I have referred add nothing of substance to the claimant’s case.

Conclusion

[107]For the reasons given in this judgment I have reached the clear conclusion that the claimant’s case must fail. On my findings of fact, and in the light of my strong preference for the evidence of the defendant’s expert witnesses, the claimant falls a long way short of establishing legal liability on the part of the defendant. It is extremely unfortunate and distressing that the crisis with Mrs A arose at a time when the registrar was engaged in the operation on Mrs O and there was no other operating theatre available. That was not, however, the result of negligence on the part of any of the staff involved. They all acted with due skill and care.[108]The claim must therefore be dismissed.