CJL (A Child) v West Midlands Strategic Health Authority [2009] EWHC 259 (QB)

[2009] EWHC 259 (QB)Case No TLQ/09/0028
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/02/2009
Before
THE HON MR JUSTICE TUGENDHAT
Between
C J L (a child proceeding by his Mother and Litigation Friend AJ L)ClaimantWEST MIDLANDS STRATEGIC HEALTH AUTHORITYDefendant
Mr Simon Maskrey QC (instructed by Irwin Mitchell) for ClaimantMr Michael De Navarro QC and Ms Anastasia Karseras (instructed by Barlowe Lyde & Gilbert) for DefendantHearing Hearing dates: 9-12 February 2009
Judgment
[1]C L (“the Claimant”) was born at 21:55 hours on 26 October 1987 at Sandwell Maternity Hospital, West Bromwich. The antenatal history was uneventful. Mrs L, then aged 21, was admitted to the labour ward at 17.30. A Cardiotocograph (CTG) trace was obtained at 18.45, indicating that the Claimant was well oxygenated and in good condition. An artificial rupture of the membranes (ARM) was performed at 21.20, and a foetal scalp electrode (FSE) applied. The printout from the monitoring device (known as a Sonicaid FM6) shows that a trace from the FSE was obtained at 21.22. In the following 33 minutes events occurred which have given rise to this claim for clinical negligence.[2]The Claimant was delivered by spontaneous vaginal delivery, with the umbilical cord wrapped around his neck twice very tightly. He was in poor condition then. He now suffers from cerebral palsy. It is common ground that his present condition is as a result of brain damage. That damage was caused by an acute profound hypoxic-ischaemic insult at the end of labour, probably as a result of cord occlusion, as his head descended through the birth canal. It is recorded that at one minute of age, that is 21.56, his heart rate had recovered to above 100 beats per minute. It is agreed that that signalled the end of the insult.[3]With the benefit of hindsight (including developments in medical knowledge since 1987) it is now agreed that bradycardia started at 21.36. I have, of course, disregarded this information in reaching my findings as to what the midwives and a reasonably competent obstetrician should have appreciated in 1987.[4]The opinions of expert paediatric neurologists are agreed. Although both attended court, only Dr Rosenbloom gave evidence. It was decided for the Defendant that after Dr L Rosenbloom’s evidence had been heard there was no need to call Dr NH Thomas. The position can be taken from the Defendant’s written Opening Note. If the Claimant had been delivered at 21.46 (and so effectively resuscitated by 21.47) the brain injury would have been avoided. If he had been delivered by 21.50 a mild degree of brain damage would have been unavoidable, such that he would have been mobile but clumsy and with full preservation of intellect or cognitive abilities. It is likely that he would have been wholly independent but employment and activities which require normal gross and fine motor abilities would have been difficult for him. As it is he suffers from severe mobility problems and developmental delay. The bulk of the damage which has caused his disabilities occurred subsequent to 21.50 hours.[5]The claim was brought in 2006. The issues tried before me relate to liability only. It is common ground that the on call obstetrician should have been called by the midwives, and should have arrived no later than 5 minutes after the call. There are now two principle issues. One relates to the time at which the obstetrician should have been called. The other relates to the time at which the Claimant would have been delivered (and so resuscitated) if the obstetrician had arrived on time.[6]The first main issue is as to when the call for the obstetrician ought to have been made (and so when the obstetrician ought to have arrived). At the end of the evidence the Claimant’s case was that the latest time to call was 21.33 (with arrival at 21.38), and the Defendant’s case was that it was 21.35 (with arrival at 21.40). On either case the Defendant accepts that the fact that the obstetrician did not arrive when she should have gives rise to a breach of duty for which it is responsible.[7]The second main issue is as to whether, if the obstetrician had arrived on time, the Claimant would have been delivered before 21.46, alternatively before 21.50. The main sub-issues under this head are the time it would or should have taken for the obstetrician to decide to undertake an assisted vaginal delivery by means of forceps, and then to have achieved delivery by that means. It is agreed that full dilatation occurred no later than 21.40. It is the Claimant’s case that the decision to intervene in this way would and should have been made within no more than 3 minutes (so by 21.41 or 21.43 at the latest, depending on whether the obstetrician had arrived at 21.38 or 21.40) and that delivery would and should have occurred within 6 minutes of the procedure being undertaken. On the Claimant’s timings it follows that the Claimant would have suffered no, or no significant, brain damage. It is the Defendant’s case that even if the obstetrician had arrived on time (whether the time contended for by the Claimant or the time contended for by the Defendant), delivery neither would in fact, nor should, have been achieved significantly earlier than was in fact the case. On the Defendant’s case the outcome would have been the same, with the result that the claim fails on the issue of causation.

THE EVIDENCE

[8]The events in question occurred over 20 years ago. There were three midwives present at the critical times. The senior midwife, Mrs Kirkpatrick, has died, but she made a statement in 1997 which is in evidence. Midwife Newsome was mainly concerned in these events, but she has not been traced. Midwife Unett was the third, and she gave evidence. Naturally, she had no recollection of the details. She was called by the Defendant at the request of the Claimant, but her evidence adds nothing material to the contemporaneous records. She was able to say that the equipment that would have been required for a forceps delivery was on a trolley in a position immediately available, that is within less than a minute, if a doctor needed it.[9]The oral evidence other than that of Midwife Unett was entirely that of experts. I had the benefit of evidence from exceptionally well qualified experts on both sides. The midwives were Ms Angela Helleur BSc (Hons) RM RGN, Supervisor of Midwives for the Claimant and Ms Susan Brydon RGN, RM, BSc (Hons), MSc, PGDipEd(Mid), Dip.Ap.Ssc., CertHp, Supervisor of Midwives instructed by the Defendant. The obstetricians were Mr GJ Jarvis MA (Oxon), FRCS (Ed), FRCOG instructed by the Claimant and Mr JAD Spencer FRCOG instructed by the Defendants. The experts were all in practice in 1987 at the time relevant to the issues I have to decide.[10]The contemporaneous records are voluminous. But the information relevant to the issues in this case is to be found in very few, and for the most part only two, documents: the CTG printout produced by the Sonicaid FM6, and handwritten clinical notes. There are also a series of charts on pre-printed paper called a Partogram.[11]It was accepted practice at the time for the notes to be written up after the events that they describe. The timings on the notes are written against a number of observations or records of actions taken, and it is clear that the timings are intended to be approximate, since the data or actions recorded could not all have been obtained or completed instantaneously. There are also notes handwritten on to the CTG printout. The CTG printout was on a roll of paper which progressed out of the machine at 1cm per minute. When notes are handwritten on to it they are written at a part of the paper which has already emerged from the machine, and so corresponds to a time earlier than the time at which the note is made. The relevant notes were written mainly by Midwife Newsome. Senior Midwife Kirkpatrick commented upon them in her statement made in 1997. Some of the information is recorded on a document known as a Partogram. This is a sheet of paper pre-printed with various charts designed to be filled in by hand with marks such as crosses, lines and shading to record events.[12]The CTG printout is in two sections. The top half of the roll (when held horizontally) records the foetal heart rate (FHR) and the bottom half the contractions. The record is made by a needle which marks the paper. When the machine is recording a FHR continuously, the line will be continuous and fluctuating. The range pre-printed on the paper is from 30 to 240 beats per minute (bpm), with lines along the length of the paper marking intervals of 10bpm. The FHR traces are shown at different times as being recorded from two different sources. One source was the ultrasound device around Mrs L’s abdomen. The other source was the foetal scalp electrode (FSE), for the brief period when that was fitted and was picking up a signal. An extract from the part of the roll most relevant to this case is reproduced at the end of this judgment.[13]The printout records clearly the intervals between events. Each minute is represented by 1 cm with the intervals marked by transverse lines running across the width of the roll. When reading the printout, these transverse lines are vertical, and the lines along the length of the printout are horizontal. The relationship between the transverse lines and clock time is less clear. The machine incorporated a clock. The printout has on it at intervals information as to the date, time and source of the FHR signal. So, for the period up to 2020, the information reads:
“FM6 ULT[RASOUND] 1CM/MIN TOCO-EXT 22:06 26.10.1987”
. In the periods when the source for the FHR is, or is intended to be, the FSE, then the letters “ULT” on the printout are replaced by the letters “ECG”.[14]It is common ground that the time 22.06 is the time according to the machine’s clock. But the clock cannot have been correctly set, because the printed times are one hour later than the times handwritten on the same part of the roll as that on which the printed time appears. It is common ground that where it records 22.06, then that is to be read as 21.06. Presumably the machine had not been reset for daylight saving time. There is no evidence as to how closely or accurately the times printed by the machine correspond to the times written manually on the printout and in the notes. Nor is it clear from the print out where among the transverse vertical lines the printed clock time is to be placed, since the digits 22:06 occupy almost 1 cm on the paper. Ms Brydon recalls using these machines in the past, and her evidence is that the clock time is to be read as the time corresponding to the first digit in the four digit printed clock time. Mr Jarvis’s recollection was that it was the colon between the digits which marked the time to which the digits referred. The difference is nearly half a minute. I shall use Ms Brydon’s interpretation, which is the most favourable to the Claimant, but in the end nothing turns on it. Ms Brydon also explained that before a trace would start to print there needed to be about 30 seconds of contact with the foetal heart and during this period the heart rate would be audible.

THE LAW

[15]There is no issue of law before me. It is set out in Bolitho v City and Hackney HA [1998] AC 232, 240G. As formulated by Mr de Navarro (and not disputed by Mr Maskrey), the issue is (separately in relation to first the midwives and second the on call obstetrician): were the acts or omissions within the range of reasonably competent practitioners in those fields in 1987? If breach of duty is established, the issue on causation is what, absent breach of duty, would or should have happened, and whether that would, on the balance of probabilities, have avoided or materially reduced the damage?[16]The Bolam test is central to the second question. The test as it arises in this case is: what possible courses of action would have been outside the range accepted as proper by a responsible body of medical people skilled in midwifery and obstetrics?[17]So far as the midwives are concerned, on the facts of this case, the question has become: when was the obstetrician called? And if she was called after the latest time by which the Claimant contends she should have been called, then, when should she have been called?[18]So far as the on call obstetrician is concerned, on the facts of this case, the question has to be considered in three separate periods of time: assuming that she had arrived within five minutes of when she ought to have been called,(1) how long should it have taken her to decide that an operative vaginal delivery (by forceps) was necessary, and(2) how long should it have taken her to prepare for a forceps delivery, and(3) by what time should and would the Claimant have been delivered by that means?[19]On the state of the evidence, I cannot make any finding as to what the obstetrician would have done, in so far as that depended upon her, as opposed to upon the circumstances of Mrs L. So as to what the obstetrician would have done, the only question is what she should have done. But when I have found what the obstetrician should have done, I must be led back to consider what the outcome of her decision and actions would probably have been, given the circumstances of Mrs L (mainly the rate of her contractions) and the extent to which the Claimant had progressed naturally along the birth canal.

SIGNIFICANT EVENTS

[20]The following events are recorded in the notes and on the CTG printout: i) 17.30 when Mrs L was admitted to the labour ward, she was described in the notes as “generally well… , pulse 120 blood pressure 110/80, very anxious, contracting 1:3, … 3 cms dilated, Vertex at spines. Membrane intact”. ii) 18.45 the notes record “CTG readable. Shown to use Entonox” iii) 20.30 the notes record “fairly comfortable. Wants stronger pain relief”. iv) 21.00 on the Partogram marks the end of the period starting 1730, during the whole of which contractions are recorded as being at the rate of 3 in 10 minutes. For the next half hour to 21.30 they are recorded as being 4 in 10 mins. There is no record of the rate after 21.30. v) 21.08 marks the end of a continuous recording from Ultrasound appearing on the CTG print out. Up to that point the mark is a continuous line recording a FHR fluctuating mainly between 130 and 140 bpm. That is referred to as a baseline. Immediately after the end of the recorded FHR there is a note written transversely on the printout “21.20 VE FSE”. That means that there was a vaginal examination carried out and an FSE applied at that time. The same events are recorded in the notes against the time 21.20, both timings being handwritten. vi) 21.20 the notes record “VE [vaginal examination] to perform ARM [artificial rupture of membranes] and assess prior to analgesia … Cepahlic presentation at the level of the ischial spines. Membrane bulging. ARM performed. … FSE applied. Position LOA [Left Occipito Anterior]….” vii) 21.22.30 is the next point at which a mark appears on the top half of the printout. It records the FHR from the FSE fluctuating for the most part between 120 and 130 for one and half minutes until just before 21.24. There is then recorded the first of five decelerations. The first deceleration is marked by a line descending to about 65 bpm at about 21.24.00, and then recovering to about 130 bpm in about half a minute, reaching 130 at about 21.24.30. For about one further minute the mark is a continuous line recording a FHR descending to 120 bpm and fluctuating for about a minute around that figure until just after 21.25.00. There is a note on the printout written by hand “0 2 given”, meaning that oxygen has been administered to Mrs L. The time corresponds to the low point of 75 bpm, but I read that as meaning that it was administered earlier, during this interval between decelerations. It can be seen from the lower part of the printout that these decelerations correspond to contractions, and so that the recoveries to rates near the preceding baseline correspond to intervals between contractions. There then occurs the second deceleration, which lasts slightly longer than the first, but still less than a minute. That is marked by a line descending to about 75 bpm and then recovering to nearly 150 bpm at 21.26.00. It then falls back to fluctuate between 110 and 140 bpm for a period of less than one minute ending at about 21.26.30. These two decelerations, the giving of oxygen, and another event (turning Mrs L on her side) are recorded in the notes. viii) 21.25 the notes record “FH [foetal heart] ↓ 70 bpm x 1 then 75 bpm x 1. Type 1 dips. PT [patient] turned on to side. 02 via face mask given”. The Partogram records these two decelerations, but not the subsequent ones, for which there is a note referring to the CTG. ix) It is common ground that decelerations corresponding to contractions (known as Type 1 and/or as early decelerations) are normal following an ARM. The rupture of the membrane means that the head of the fetus is exposed directly to the pressure of the contractions without the protection of the fluid filled membrane which has hitherto distributed the pressure of the contractions. It is common ground that administering oxygen and turning the patient on her side were appropriate responses to the decelerations. Turning the mother on her side relieves the pressure, but it takes a little time for that to happen. x) 21.26.30 on the CTG is the start of the third deceleration. The trace on the printout descends to 70 bpm at 21.27.00. It then recovers more slowly and to a lower baseline, reaching 100 bpm at about 21.27.30. This deceleration lasts very nearly a full minute. There is then a period, parts of which are difficult to categorise, either as a deceleration or as an interval between decelerations. On one view it is an interval of about half a minute ending just before 21.28.00, during which it fluctuates between 95 and 110 bpm. On this view the fourth deceleration starts just before 21.28.00, recovers to 100 bpm just after 21.28.00, and then descends again to 65 bpm before recovering, after more than a full minute, to 105 bpm just after 21.29.00. Alternatively, the interval before the fourth deceleration is longer, lasting until 21.28.00. On this view the fluctuation during the interval is wider, being between 85 and 110 bpm, and the deceleration is shorter, being one minute between 21.28.00 and 21.29.00. On either view the pattern is definitely changing at this point. There is no interval between the fourth and fifth decelerations. The fifth deceleration starts at 21.29.00 from the peak of 105 bpm descending to 65 bpm before starting to rise again. The trace on the printout ceases at 2130 and 75 bpm. There is then a note handwritten on the printout “21.32 New Electrode”, meaning that at that time the midwives inserted a new FSE to try to recover the trace. These events are recorded in the notes. xi) 21.30 the note records “FH ↓ 70-75 bpm also checked with pinards [a stethoscope]. Mrs Kirkpatrick called. FH checked with abdominal transducer. FH has 120-130 bpm”. The Partogram records that at 21.30 the cervix was 4-5 cms dilated. The Partogram also records the maternal pulse, starting at a rate of 120 at 1730, and steadily declining, so that at 21.00 it is recorded at below 100. That is the last entry. There was a suggestion canvassed by the experts, but given more emphasis by Ms Helleur, that the reading of 120 might have been Mrs L’s rate which had been mistaken for that of her baby. I think that is unlikely. Midwives check both at the same time, to avoid confusion, and although I accept that confusion can occur, there is nothing to suggest that it was likely in this case. As Ms Brydon points out, 120-130 was within the range previously seen for the Claimant at around 21.23. xii) 21.32 the note records “New electrode applied – not reading. FH listened to with abdominal transducer. FH ↑ 160 bpm …” xiii) The CTG printout for the period after 21.32 is relevant up to 21.38. There is no reading recorded at all until just after 21.34 or 21.35. At that point there is a mark covering a period of about 30 seconds at about 70 bpm. There is then no record for just under a minute, when the recording is about 160 bpm, at about 21.36 for less than 30 seconds. There is then no record until about 21.37 or 21.38. At that point there is a third trace of 70-80 bpm for less than 30 seconds. The interval between 21.32 and 21.38 is the interval including the three minutes up to 21.35, over which the expert midwives gave differing opinions. xiv) 21.39 the note records “PP [presenting part] advancing well rim easily pushed back”. xv) 21.40 the note records “… fully dilated” xvi) At about 21.45 there is written an annotation on the printout ‘abdo’. The experts agree that probably means that the source for any reading would have been the abdominal transducer. In any event the print out says that itself by the letters ‘ULT’ which are printed before the time some minutes before the point represented by the annotation. The first such trace is one at between 21.37 and 21.38. It starts at about 75 bpm, ascends to about 85 bpm and covers a distance representing less than half a minute. There then follow two traces to which the annotation probably refers. One is at about 21.46, between 90 and 110 bpm for less than 30 seconds and the second at about 21.47 of 180-190 bpm, also for less than 30 seconds. xvii) 21.55 the note records “Rapid progress to Normal Delivery of a live baby … Episiotomy sutured …” It follows that at some point prior to delivery an episiotomy was performed.

THE MIDWIVES

[21]While the expert midwives did not agree when the emergency call to the obstetrician should have been made, both agreed that it should not have been made later than 21.35. I find that it was made at about 21.35.[22]In her statement Senior Midwife Kirkpatrick appears to be referring to the notes timed at 21.32 or the CTG when she wrote:
“The foetal heart was up to 160 beats per minute. I recall that I asked that the on-call Obstetrician and Paediatrician be called on the emergency bleep. I am not sure who actually called…”
She added that the obstetrician arrived with an apology for lateness, after the Claimant was born. This statement does not say when the call for the obstetrician was made, or, in terms, that it was made at all. I find that it was probably made because I accept that the obstetrician arrived apologising. As to the time of the call which I find to have been at 21.35, that is when there would have been the audible signal of the FHR which is recorded on the printout as reaching 160 bpm at about 21.36. I also bear in mind that the senior midwife in this case demonstrated her competence in delivering the Claimant and then resuscitating him, before the doctors arrived, (which not all midwives would have been able to do), and that the paediatrician who attended, and who gave a written statement, described those in attendance at the birth as “highly experienced nursing staff”. Midwife Kirkpatrick had qualified in 1965.[23]It follows that the issue between the expert midwives is when the call for medical assistance should have been made. In her evidence in chief Ms Helleur expressed the opinion that that point was 21.33. Ms Brydon expressed the opinion that that point was 21.35.[24]Both agreed that in 1987 the first four decelerations would be reasonably interpreted as Type 1, or early, decelerations. Both agreed that in most cases decelerations would cease after a period of time, or certainly after the mother’s position is changed. An ARM can lead to Type 1 dips and these tend to be resolved quickly after rupture.[25]Ms Brydon helpfully set out some explanatory information. In 1987 a normal CTG trace would have the following features: rate between 120-160 bpm, variability greater than 5 bpm. Accelerations were recognised as normal but were not considered to be a sign positively indicating foetal well being. Decelerations synchronous with the contractions were described as type 1 or early and were considered to be the result of cord compression. As long as they remained synchronous they were not considered to be an indication of hypoxia, although they required observation. Non synchronous decelerations were called type 2, or late, and were an indication of foetal compromise, particularly if there was a delay in the foetal heart returning to the baseline.[26]All the experts, both midwives and obstetricians, agree that in 1987 medical knowledge was not as extensive as it is now in relation to the effects of hypoxia over specific time frames. While it is now known that 10 minutes is likely to be the longest period that a fetus can survive hypoxia, that was not known in 1987. But it was known in 1987 that there was a serious danger and that bradycardia, actual or suspected, was an obstetric emergency.[27]Ms Helleur is of the opinion that the last two decelerations do not show a full recovery to baseline and show a deterioration of the foetal heart. They cover a period of about two minutes. Both experts agree that it is not possible to say if there was any meaningful recovery of the foetal heart rate following the fifth deceleration, as there is no meaningful trace of the foetal heart after 21.30.[28]Ms Helleur reasons that the third deceleration is slightly different, in that it shows a slower recovery, and the recovery is not to the baseline. The fourth deceleration occurred while the mother was on her side, the recovery was not to the baseline, and it was slower. So the midwife was right to call for aid from the senior midwife. After getting no reading from the FSE fitted at 21.32, the two midwives were right to listen for the FHR using the Pinard’s. Getting a first reading from an FSE takes up to 15 seconds, and a further 15 seconds will be required to read the digital signal. Within a minute of not getting a signal from the FSE, Ms Helleur considers that medical assistance should be summoned. That is how she arrives at 21.33.[29]Ms Helleur notes that since the trace was interrupted for about fourteen minutes between 21.08 and about 21.22 (a fact which she does not criticise in itself), when the trace resumes after 21.22 the midwives could not know that the FHR had been normal in the two minute interval. Ms Helleur considered it unacceptable to wait until traces re-appeared on the printout, as they did three minutes later. She agreed that it was reasonable for the midwives to take the 120-130 bpm reading that they recorded in the notes as being the Claimant’s, but she did not consider that that reading was totally re-assuring. It was a reading from a point in time only. Ms Helleur’s view is that the midwives had to be prudent and call for medical aid. They could not exclude that the FHR might be continuing at a low level, that is a bradycardia, and if it were, that would be an emergency.[30]Ms Brydon is of the opinion that the CTG trace that exists in this case (noting the gap of 14 minutes, which she does not criticise) was completely normal until approximately 2120. As already noted, she considers it reasonable for the midwives to have described the first two decelerations as type 1, as they did, in that there is evidence of synchronous contractions. The third deceleration is also synchronous, although the recovery was to a lower baseline. This might be either early or late. Administering facial oxygen and turning the mother on her side were appropriate, and the midwives were entitled to wait for a period of time to see if these measures improved the trace. The midwife acted promptly in calling the senior midwife by 21.30 when the decelerations had deteriorated.[31]The fourth deceleration was a late one in Ms Brydon’s opinion. And in her view the fifth was either a late deceleration, or marked the onset of bradycardia, since there was no evidence of meaningful recovery of a baseline. In 1987 a midwife would expect to see a significant lag time on the trace in order to enable the deceleration to be identified as late. I should emphasise that Ms Brydon made clear that these interpretations are what they would have been in 1987, and not what they would be today.[32]As a general principle a midwife will observe a CTG trace in order to identify a pattern of decelerations before asking for medical assistance, and the observation of three late decelerations would usually trigger a call, but the midwife must take into consideration the previous evidence of foetal well being on the trace and the history of the pregnancy and the labour. In this case there were absolutely no problems with either the pregnancy or the labour. All experienced midwives know that the rupturing of the membranes can induce a period of decelerations, which will usually be attributed to the descent of the presenting part to the cervix, causing head compression, which will cease in most cases as noted above.[33]A doctor would only be called if the midwife detected an abnormal foetal heart or the midwife could not be confident that the foetal heart was normal. The midwife was making every effort to restore the trace. Ms Brydon is of the opinion that although the CTG does not show it, the measurement of 120-130 bpm auscultated by the midwife (as recorded in the notes) indicates that there was a recovery from the fifth deceleration. It is the further measurement of 160 bpm, at the top of the normal range, that would be of concern, as a rise in baseline could indicate that the baby was being compromised. But in her opinion the FHR of 160 bpm (referred to in the note timed at 21.32) indicated that the bradycardia had not started at the time it was heard. It was at that point, namely 21.35, in her opinion, that the midwife was both unable to confirm foetal well being and had some evidence to indicate that the baby’s condition had deteriorated.[34]Ms Brydon explained that the process of fitting a FSE would last a minute, and it would take a minute from the time it was in place for the midwife to obtain a signal. There is evidence that the midwives continued their efforts to be obtain a trace after 21.35, but that is not relevant to the time at which they should have made the call.[35]It was suggested to Ms Brydon that a FHR below 110 bpm was bradycardia, but she did not agree. In her view that occurs when the FHR is below 100 bpm for the requisite period of 3 minutes. She did not accept that there was a record of bradycardia in this case, up to the point where the FHR of 120 bpm was recorded. Although the word bradycardia was much used, I was not given an agreed definition. This does not matter because I understood the opinions of the experts to be based on the underlying phenomena, and not on the word used to categorise them. Mr Jarvis said that the FHR has to be below 100 bpm, for a period which is not defined, some saying greater than 2 minutes, others greater than 3 minutes, during which the FHR is monitored without recovery to the normal rate.[36]Ms Brydon was pressed hard in cross-examination to agree that by 21.33 the midwives should have been saying that they could not be re-assured. Ms Brydon said she totally disagreed. Counsel referred to the very serious risk (and therefore benefit) if there were bradycardia, if medical assistance were called and needed, and the relatively low cost if medical help were called and turned out not to be needed. Nevertheless, in Ms Brydon’s view calling for medical assistance at that point would have been above competent practice. She repeated on a number of occasions that it is not the standard that midwives should call a doctor ‘just in case’. Doctors have duties to other patients, and may be in theatre. A midwife has to have a reason to call. In fact the figure of 160 bpm was heard at 21.35, but if nothing had been heard at that point, Ms Brydon agreed that enough time had passed, namely three minutes, to make it necessary for the midwives to call for a doctor.[37]As I find, the likely explanation for the onset of the decelerations was the ARM performed before the trace was restarted. Ms Brydon’s approach represents a responsible and reasonable standard, in so far as it differs from Ms Helleur’s more cautious interpretation of the absence of evidence of foetal well being during the period when the trace was interrupted immediately before 21.22.[38]Both the expert midwives are highly experienced in their field. Both have moved on from full time practice. In the case of Ms Helleur she is mainly engaged in management, practising on the ward as required. In the case of Ms Brydon she still practises on the ward for about one quarter of her time. Ms Brydon also has management responsibilities, and teaches and writes on midwifery. The opinions of both experts in this case are genuinely held, and responsible. The opinions of both can properly be described as reasonable. It is not necessary that I prefer one to the other. Had it been necessary, then I would, on balance, have preferred the opinions of Ms Brydon.[39]In any event, my conclusion on this point is that medical assistance should have been called at 21.35, but was not required to be called before that time. There was therefore no breach of duty by the midwives attending Mrs L. The only breach of duty arises from the failure of the obstetrician to attend when called.[40]It follows that on the agreement between the parties, it must be taken that the obstetrician should have arrived at 2140.

THE OBSTETRICIANS

[41]As noted above, the next stage of the enquiry can be divided into three periods: first, the time which should reasonably have been required for the obstetrician to consider the position and make the decision to intervene; second, having made that decision, the time which should reasonably have been required for the obstetrician to prepare to intervene; and third, the time that would and should reasonably have been required for delivery. It is common ground that the time from delivery to resuscitation should have been the one minute that it actually took in this case. The second and third periods have been referred to collectively, in evidence, and in literature cited, as the decision to delivery interval (DDI).[42]The obstetricians agreed on a number of matters. Amongst these is the interpretation to be put upon the CTG and the information recorded by the midwives in the notes, which, it is to be presumed, the midwives would have communicated to the obstetrician on her arrival. It was common ground that in this case the interpretation of the CTG by the obstetricians was not relevant to my determination of when the obstetrician should have been called, because in this case that could properly be determined by reference to the evidence of the expert midwives. The interpretation of the obstetricians is relevant in considering how long it should have taken the obstetrician who answered the call to decide to intervene.[43]It is therefore necessary to look at traces on the printout subsequent to 21.36, as described in paras 20 xiii) and xvi) above.[44]Mr Jarvis stated in his report that, on the basis of his reading of the CTG, it is probable that the baseline bradycardia began after 21.35 but before 21.37. Mr Spencer also accepted in one of the two joint reports that by 21.40 it would have appeared probable that there was a FHR bradycardia and that ‘… a persistent FHR bradycardia …. appears to have been recorded on the CTG at 21.38”. Both agree that bradycardia constitutes an obstetric emergency, making it imperative that delivery be achieved as soon as possible.[45]I find that a reasonably competent obstetrician who arrived at 21.40 should have reached the same conclusion, and so recognised that there was an obstetric emergency, requiring intervention. How long it would have taken her to decide that is a point I decide below.[46]Assuming arrival at 21.40, it was Mr Spencer’s opinion that ‘having commenced preparations the earliest time possible that intervention could have commenced would have been 5 minutes, with delivery 5 minutes later (2150)”.[47]It is agreed that the obstetrician who should have responded to the emergency call should have been sufficiently trained and experienced to carry out an operative vaginal delivery, and that any intervention in this case would probably have been by forceps (rather than Caesarean or ventouse).[48]There was a difference between the experts on whether, if the obstetrician had arrived before 21.40, a decision to intervene should have been made before 21.40. For this point the significance of 21.40 is that it is the time of full dilatation. The disagreement is no longer relevant, in that I have found that 21.40 is when the obstetrician should have arrived, and not before.[49]As to the first of the three periods, the experts also agreed that “in the circumstances of this case the longest time … a reasonably competent obstetrician would have needed to have concluded that an operative vaginal delivery was urgently necessary’ was three minutes. While that was agreed to be the longest time, it was not agreed to be the time that it should have taken.[50]For the second and third periods, DDI, the experts wrote an agreed list of the steps that would have been required to achieve delivery. This list does not include a vaginal examination, but it is also agreed that it would have been necessary for the obstetrician to have carried out a vaginal examination, either before making the decision to intervene, or after making the decision to intervene, in order to satisfy herself, for example, of the type of forceps to be used. The list assumes that the examination would have been at the decision stage, which is what both experts favoured. Subject to that point, the list is as follows: ‘[1] informed verbal consent, [2] positioning of the legs, [3] … [this referred to preparations by the midwives which would in fact have been done before arrival on my findings], [4] sterile preparations by [obstetrician] (hand washing, opening of packs), [5] cleaning and draping of perineum, [6] catheterisation, [7] application of local anaesthesia to the perineum, [8] application of the forceps blades to the baby’s head, [9] awaiting the next uterine contraction to commence traction (optional), [10] traction during each successive contraction until head brought to perineum, [11] episiotomy cut, [12] final traction for delivery, [13] cutting the umbilical cord’.[51]As to the second and third periods, the DDI, the experts expressed opinions without knowing which time I would find to be the time at which the obstetrician should have arrived, 21.37, or 21.40. On the footing that I were to find 21.40, as I have, they agreed that the interval between application of forceps and delivery would probably have been shorter because of spontaneous descent of the baby’s head with every minute that passed.[52]As to the third period, Mr Jarvis is of the opinion that the latest time by which a reasonably competent obstetrician should have achieved delivery if the forceps had been applied at 21.40 would have been 21.44. Since on my finding, the forceps should not have been applied until up to three minutes later (a point to which I shall return) it follows that in Mr Jarvis’s opinion the third period would have amounted to four minutes, or less, depending upon whether one or two contractions would have been required. He gave his reasons in a joint report as follows:
“… this was a most urgent delivery and would have been an easy operative vaginal delivery… because the second stage was rapidly progressing, the foetal head was in the occipito-anterior position below the ischial spines. A decision-delivery interval of 6 minutes can be achieved as evidence both by the literature and clinical experience…”
[53]Mr Spencer expressed his view in a joint report as follows:
“A reasonable expectation for delivery would be 15 minutes after making the decision to deliver, as evidenced by the literature (decision to delivery times in the literature vary between 15 and 26 minutes [average], much of which precedes … application of the forceps blades). After application of the forceps blades… traction would be applied during this and subsequent contractions. Rarely is it possible to achieve delivery with one traction because this implies a level of traction greater than normal in the absence of significant resistance by maternal tissues. There is a risk of trauma to the foetal head and maternal vaginal tissues if any degree of urgency is not appropriately balanced with due care during traction. If forceps are applied soon after full dilatation of the cervix then a reasonable expectation would be at least 3 contractions to achieve delivery (the first to achieve most of the descent - to the pelvic floor – the second to reach the perineum where an episiotomy would be expected, and the third to complete delivery. It is always possible that circumstances might allow a quicker delivery, with two tractions, in about 5 minutes.”
[54]Mr Spencer added that on the basis of the time of arrival that I have found; “… the earliest reasonable time for delivery would be 21.50. It would still be an acceptable standard of care to have taken 15 minutes to achieve delivery after the decision to deliver was made”.[55]In support of his opinion, Mr Jarvis referred to a paper by Eldridge and Johnson, 2004, Journal of Obtstetrics and Gynaecology, 24, 230-232, which he states demonstrates that the obstetrician can deliver a baby within 6 minutes of the decision. Mr Jarvis recognises that it also shows a median interval between decision and delivery of 16 minutes with a range of 6 to 61 minutes. But the present case, he says, was a major emergency, whereas not all cases of foetal distress are as urgent.[56]Mr Jarvis states that in this case it can be said that a delivery would have been easy and straightforward. He bases this on the fact that, when left to nature, a normal delivery occurred within 15 minutes at 21.55. The Claimant’s head had been at the ischial spines at 21.20, and at 21.39 he was reported as ‘advancing well’. It is highly likely that delivery would have occurred either with a single pull or at most two pulls on the forceps, that is, within one contraction or two, allowing two minutes for each contraction.[57]Mr Spencer comments on the speed of the second stage of labour leading to the natural delivery at 21.55: “Some would consider this ‘precipitate’ in that, within the normal rates of progress, it would be difficult to imagine a faster rate of progress”.[58]When Mr Spencer came, in his report, to consider the proper response in the event that it appeared to the obstetrician, arriving at 21.40, that there was bradycardia, he expressed the view that in such a situation the decision to intervene rarely results in the attainment of delivery within 10 minutes. He supported this by reference to a study from Oxford reported on in a paper by Okunwobi-Smith and others, published in the British Journal of Obstetrics and Gynaecology, April 2000,Vol 107, pp467-471. He noted that this showed a mean interval of 19 minutes if local analgesia was given to the perineum (as would have been required in the present case). He also referred to a paper by Murphy and Koh, published in the American Journal of Obstetrics and Gynaecology 2007; 196:145.e1-145.e7, showing an average decision to delivery interval of 15 minutes, which, he said, equates with his own clinical experience. He concluded: “Thus it is unreasonable to expect delivery in less than 15 minutes when considering an expected standard of care… Earlier delivery would have been ideal, but a decision to delivery interval to 15 minutes cannot be criticised… If medical staff had arrived at 21.40 hrs then the earliest possible reasonable time to expect delivery would be 10 minutes after this”.[59]Mr Maskrey was critical of Mr Spencer’s reasoning, in so far as it was based on the averages referred to in the literature cited. I agree that a better approach is to start from the facts known about Mrs L, and to proceed from there, as Mr Jarvis did. The averages are not related to mothers all of whom were in the same state or circumstances at the time of the decision to intervene. And in the literature the babies were all delivered by operative delivery, and so the authors did not have the advantage that I have in knowing how long natural delivery would take.[60]In fairness to Mr Spencer, the joint reports, and his evidence, show that subsequently to his first report he did carefully consider what steps would be required, and how long they would take.[61]There was some time spent in cross-examination over the literature. In the end I do not find it helpful. The literature relates to a time long after 1987. There was some question as to whether in 1987, or in a District General Hospital, an obstetrician would have been as quick with a forceps delivery as an obstetrician in 2000 or later in one of the teaching hospitals from which the studies appear to emanate. While the authors specifically reserve this point, I could see no reason why the difference in date or place ought to lead me to adopt different timings. In 1987 there were more forceps deliveries than in more recent years, because the alternative, a ventouse, was less efficient in 1987 than it has since become. And the fact that the obstetrician has reached a District General Hospital implies a level of competence that is potentially greater than some of the doctors still at the teaching hospital.[62]At this stage of my deliberations the only timing that I have which is based on observation is the actual time of delivery. That gives an interval of 15 minutes from the assumed arrival of the obstetrician. As Mr Jarvis put it, operative vaginal delivery cannot slow down the process: it can only equal it or accelerate it. All the other times discussed by the experts in relation to the period after 21.40 are their own estimates. There is no record or standard of how long is the maximum required to take a particular step or make a decision. The nearest to observable data other than the actual time of delivery is the period of contractions. Although these are not recorded for the last fifteen minutes of labour, they had been at 4 in 10 minutes up to 21.30. The experts assumed that they would have reached 5 in 10.[63]The next piece of observable information that I have is the facts about the position of the Claimant. His head was in the commonest position, which is mechanically most favourable for delivery, and at 21.39 his position was described as “advancing well”. It followed in Mr Jarvis’s opinion that in the range of operative vaginal deliveries, this would have been particularly easy. Hence he concluded that on the balance of probabilities delivery would have been within one or two contractions, which is at most four minutes at the assumed rate of 5 in 10. That also assumes that the obstetrician would have had to wait for the full minute before the first contraction, since a rate of 5 in 10 implies a one minute wait before each one minute contraction.[64]An important element determining the time that should have been taken is the assessment of the risks against the benefit in play. There is the agreement, and my finding, that in 1987 the situation which the obstetrician would have found at 21.40 is one that she would have understood as an emergency. The most serious known risk to the Claimant was very serious indeed: it is what in fact occurred. Other risks to him from a forceps delivery included bruising and possibly a fracture to his skull. The risks to his mother were not of the same order of gravity. They included damage to her tissue if the traction was too fast, and the further pain, to be added to the extreme pain which she would already have been suffering.[65]One issue between the experts was the anaesthetic that would have been required. Mr Jarvis thought that a local anaesthetic requiring one injection would have been all that was required. Mr Spencer favoured a pudendal block requiring three injections.[66]The obstetrician arriving at 21.40 would have had to consider the CTG trace and the information from the midwives. The trace is not one that lends itself to instantaneous interpretation, as, for example, it would be if it showed a persistent bradycardia represented by a line at a low level of bpm. A reasonably competent obstetrician would be entitled to some moments of thought and discussion with the midwives to decide that it really was an emergency. She would also have to carry out the vaginal examination. I can accept that some reduction of the agreed maximum of 3 minutes for the decision stage would be required, given that it was an emergency, but not very much. Applying as I must the test of what is more likely than not, I find that it is more likely than not that a reasonably competent obstetrician arriving at 21.40 would not have been outside the range of acceptable practice (in the Bolam sense) if she had taken 3 minutes to reach her decision to intervene, including the vaginal examination.[67]Next I find that a reasonably competent obstetrician, at 21.43 (having reached her decision to intervene) would have been outside the range of acceptable practice if, in the circumstances of this case, she had taken the time represented by more than one contraction (ie more than two minutes) to take any further steps to prepare for intervention and to apply the two blades of the forceps. So she should have been ready to apply traction no later than 5 minutes after arrival.[68]Finally, I must decide the number of tractions which would more likely than not have been required to effect delivery. By 21.45 I think it is possible that only one would have been required, but that it is more likely than not that two would have been required, adding another 4 minutes.[69]Accordingly, I conclude on the balance of probabilities, the time required for delivery should have been and (in so far as it depended upon the circumstances of mother and baby) would have been 9 minutes. So the Claimant would have been delivered at 21.49 and resuscitated at 21.50, that is 6 minutes sooner than was in fact the case.