Zhang v Homerton University Hospitals NHS Foundation Trust [2012] EWHC 1208 (QB)

Case No HQ/11/X00968[2012] EWHC 1208 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2012
Before
MR JUSTICE HICKINBOTTOM
Between
Yiqun Zhang (a child suing by his mother and litigation friend, Shifang Liu)ClaimantHomerton University HospitalsDefendantNHS Foundation TrustDefendant
Simeon Maskrey QC (instructed by Penningtons Solicitors LLP) for ClaimantStephen Miller QC (instructed by Capsticks Solicitors LLP) for DefendantHearing Hearing dates: 1, 2 and 4 May 2012
Judgment
[1]The Claimant Yiqun Zhang was born at Homerton University Hospital, London, on 24 February 2006.[2]During the course of delivery, labour became obstructed, and a caesarean section (“C-section”) was performed by a specialist obstetric registrar, Dr Sahana Gupta. During the operation, it was apparent that the baby’s head had become deeply impacted in the maternal pelvic outlet and, in the course of freeing it, the Claimant suffered trauma to the right hand side of his skull. In particular, in addition to a subgaleal haemorrhage (bleeding between the scalp and the skull), he suffered a depressed fracture to the right parietal bone and associated intra-cranial haemorrhaging (bleeding within the cavern of the skull). Those, in their turn, caused substantial and permanent brain damage. In these proceedings, it is claimed that those injuries were caused by the negligence of Dr Gupta, for whom the Defendant Trust is vicariously responsible.[3]The trial, at which the Claimant was represented by Simeon Maskrey QC and the Defendant by Stephen Miller QC, was restricted to issues of liability. In addition to Dr Gupta, there was oral evidence from two other medics present at the operation: Dr Misha Datta now Moore (a senior house officer in obstetrics and gynaecology), and Midwife Carol Harling (a midwifery nurse). I had also had the benefit of written and oral expert obstetric evidence from Professor Phillip Bennett (Professor of Obstetrics and Gynaecology at Imperial College London, and Consultant Obstetrician and Gynaecologist to the Hammersmith Hospitals Trust, instructed on behalf of the Claimant), and Professor Steven Thornton (Professor of Obstetrics at the Royal Devon and Exeter Hospital, instructed on behalf of the Defendant); together with written reports on behalf of the Claimant from Dr Barbara Burden (midwifery), Dr Brian Kendall (neuro-radiology) and Dr Richard Miles (paediatrics), and on behalf of the Defendant from Ms Tracey Reeves (midwifery), Dr Neil Stoodley (neuro-radiology), Dr Janet Rennie (neonatal medicine) and Dr Charles Essex (neuro-developmental paediatrics).

Medical Background

[4]For the purposes of the delivery of a child, the female pelvis has an inlet which is usually oval-shaped, being wider in the transverse diameter (side-to-side) than the anterio-posterior (front-to-back) diameter. The pelvic outlet is also oval, but wider in the anterio-posterior diameter. The normal mechanism of labour is that the foetal head will enter the pelvis through the inlet in a transverse or lateral position (i.e. with the baby’s face facing to one side or the other); but, once the head is relatively deep in the pelvis, pressure between it and the pelvic floor causes it to rotate 90°, usually to an occipito-anterior position (i.e. with the back of the baby’s head to the front of the pelvis) but sometimes to an occipito-posterior position (i.e. with the baby facing the front of the pelvis), for delivery.[5]If there is a cephalopelvic disproportion (i.e. the baby’s head is disproportionately large in relation to the mother’s pelvis), the head may become obstructed during labour. Usually, where the head has been engaged in the pelvis, the head will normally be in an occipito-lateral or transverse position when it becomes obstructed, i.e. it will not be deep enough in the pelvis to have rotated. However, sometimes the head may become obstructed in either an occipito-anterior or occipito-posterior position, e.g. if the obstruction is particularly deep, or if the pelvic inlet is relatively longer in the anterio-posterior diameter.[6]There is maternal soft tissue in the space between the head and the pelvis, and, when the foetal head becomes engaged with the pelvis, downward forces mould the head significantly, so that it fits tightly into the pelvis prior to delivery. If it becomes obstructed in the pelvis, it will be held very firmly by the soft tissue which will become compacted; and the head may become so impacted that it is effectively held in the pelvis by suction forces. Difficulties with impaction are more likely if the baby’s head is deflexed, i.e. stuck in the pelvic outlet with the front neck and throat extended and the chin upwards, such that the circumference of the presenting head is effectively increased.[7]If, because of the obstruction, safe vaginal delivery is difficult or impossible and delivery proceeds by way of C-section, the “seal” between the head and maternal pelvic soft tissue then needs to be broken in order for the head to be disimpacted and withdrawn upwards and out of the front of the uterus. This is usually achieved by the obstetrician insinuating his or her hand between the head and symphysis pubis at the front of the pelvis, so far as possible exerting pressure with the back of the hand on the maternal soft tissue, rather than with the palm of the hand on the baby’s head, that head being of course relatively fragile. The soft tissue is thus further compacted, which makes space for the hand to insinuate round the head. Because neither the shape of the pelvis nor available maternal soft tissue will be regular, the tightness of fit will not be the same round the entire circumference of the head; and therefore, if inserting a hand between the head and symphysis pubis proves impossible, then the obstetrician will try to insinuate it somewhere else round the circumference of the skull. Where the head is deflexed, insinuation of the hand will be with a view to flexing the head (i.e. moving the chin downwards towards the baby’s own chest), which will reduce the effective circumference of the head and facilitate disimpaction.[8]If the insinuation of the hand anywhere round the circumference of the head is still difficult or impossible, then other techniques are available to disimpact a deeply engaged head, described in Singh & Varma, New developments: Reducing complications associated with a deeply engaged head at caesarean section: a simple instrument, Obs & Gyn 2008; 10:38-41. (The Obstetrician & Gynaecologist is a journal published by the Royal College of Obstetricians and Gynaecologists). For example, an assistant such as a midwife, using his or her flat fingers, may exert upwards pressure from the vagina on the head either whilst the obstetrician is actively doing nothing or whilst he or she is making further attempts to insinuate fingers below the baby’s crown or gently pulling the baby’s shoulders upwards. There is also a reported technique of caesarean breech delivery, in which the obstetrician pulls the head clear of the seal by pulling the baby’s legs. However, of these techniques, Singh & Varma say (at page 39):
“All these techniques rely on extensive experience that is often not immediately available on the labour ward. Caesarean sections are usually performed by doctors in training who are unlikely to be experienced enough to deviate from the normal technique of performing caesarean sections. The sentinel audit report published by the Royal College of Obstetricians and Gynaecologists recommended a consultant presence whenever caesarean section is performed at full dilation.”
As this suggests, when faced with these difficulties of an impacted head during a C-section, one option for a less experienced obstetrician is to call for the assistance of someone more experienced[9]Once disimpaction has occurred, then the head needs to be removed from the pelvis upwards, by the same route as it entered, and with the same rotation but in reverse. However, the baby’s head will tend naturally to return to a position at right angles to the shoulders, so that, once the head is disengaged from the pelvis, it will spontaneously rotate to allow withdrawal from the top of the pelvis, without any effort or force on the obstetrician’s part.

The Case History

[10]The Claimant’s mother is Shifang Liu who became pregnant for the first time in June 2005. The pregnancy was essentially normal throughout.[11]On 22 February 2006, she was briefly admitted to the hospital’s ante-natal department with a suspected spontaneous rupture of the membranes, but was discharged home later the same day. In the early hours of the following morning (23 February), she attended hospital again, because she thought labour had begun; but was allowed home. At 15.00 the same day, she presented for the third time, with contractions every five minutes, and was admitted. In her medical records, labour is noted as having commenced at 16.00.[12]The duty registrar that night was Dr Gupta, who qualified in 1993. She has worked in obstetrics since 1995, and at the time had been a specialist registrar in obstetrics for nine years. She worked at the Homerton Hospital from April 2005 until March 2006.[13]The progress of Ms Liu’s labour was slow, but uneventful. Epidural anaesthesia for pain relief was administered from 00.50 on 24 February. At 01.20, she was seen by Dr Gupta, who advised that oxytocin (a drug which stimulates the uterus and is designed to speed up the contraction rate and labour) should be commenced; but by 02.30, although the rate of contractions had increased, the foetal heart rate was showing signs of irregularities which may have indicated overstimulation of the uterus, and the stimulant was stopped. Dr Gupta reviewed Ms Liu, noting that the cervix had dilated to 8 cm and the baby’s head was in the right occipito-transverse position (“ROT”) (i.e. his head was facing his mother’s right side). Oxytocin was restarted at 03.30, because the contraction rate had once again reduced.[14]Dr Gupta reviewed Ms Liu again at 05.15. The vaginal examination suggested that the cervix had still only dilated to 8-9cms, and the baby’s head was still in the ROT position. The contraction rate was 4-5 every 10 mins, but only “mild to moderate” in strength.[15]The next review, at 07.50, showed little progress. The notes record that, although the head was quite low (at the level of the ischial spines, which are bony protruberances on either side of the pelvis used to measure descent of the head), the cervix was no more than 8cm dilated and contractions still at 4-5 every 10 mins. The head was in a right occipito-posterior (“ROP”) position, i.e. it had turned by about 45°, so that, instead of facing the mother’s right side, the baby now faced her right hip/thigh region. However, the mother’s urine was blood-stained, and meconium found. Dr Gupta took the view that labour was obstructed, and that delivery by C-section should be made. She discussed that with the on-call consultant (Mr Harrington), and he agreed. She explained the proposal to Ms Liu and her husband who was in attendance, and they too agreed.[16]Ms Liu was immediately taken to theatre, for delivery by C-section.

The Delivery

[17]The C-section was performed under epidural anaesthetic by Dr Gupta, with Dr Datta and Midwife Harling. The medical notes written by Dr Gupta, show the existing epidural was topped up at 08.00; the initial incision (“KTS”: “knife to skin”) was made at 08.15; and the uterus was opened (“KTU”: “knife to uterus”) at 08.19. The Claimant was delivered at 08.25. For the purposes of this claim, what happened during those six minutes, 08.19 to 08.25, is crucial.[18]The operation is performed “blind”, in the sense that the disimpaction of baby’s head is done within the uterus through a limited incision, and it cannot be seen by the obstetrician or, of course, anyone else. The obstetrician performs the manoeuvre by “feel”. The main evidence in respect of that period was consequently given by the obstetrician performing the operation, Dr Gupta.[19]Although Mr Maskrey relied upon documents which, he submitted, indicated what happened and what was intended by Dr Gupta (to which I shall return shortly), Dr Gupta’s evidence at trial was as follows.[20]The operation proved very difficult because the baby’s head was impacted deep in his mother’s pelvis, in a deflexed ROP position. Having opened the uterus, delivery required the head to be freed. Dr Gupta stood on Ms Liu’s right, and first tried to free the head by insinuating her hand between the head and mother’s symphysis pubis, so that she could flex it from underneath. However, the fit was too tight: she said it was impossible to insinuate her hand there.[21]She therefore repositioned her hand to the right of the baby’s head, left of the mother’s pelvis, and tried to insinuate her hand there. However, she could only place the tips of her fingers under the head – insufficient to flex it – because, she said: “The baby’s head was firmly stuck in [mother’s] pelvis…. [T]here was essentially no space at all.” (14 December 2011 Statement, paragraphs 12 and 13).[22]Keeping her hand where it was, she discussed the problem with Midwife Harling, and it was agreed(i) that the midwife would move to between mother’s legs, and push the baby’s head upwards from the vagina, and(ii) the on-call consultant should be crash-called “in case we were unable to deliver the baby” (14 December 2011 Statement, paragraph 14). Theatre staff called the consultant.[23]Meanwhile, Dr Gupta tried to insinuate her hand further, with Midwife Harling pushing from below. Their fingers touched, but the seal was not broken and Dr Gupta was still unable to insert her hand sufficiently to flex the baby’s head.[24]Dr Gupta then said this (14 December 2011 Statement, paragraphs 16 and 17): “I then managed to move the baby’s head slightly to the mother’s right and I tried to flex the baby’s head again. At this point, I felt the head dislodge from the pelvis (the breaking of the vacuum) and I was able to deliver the baby…. It was the slight movement of the baby’s head to the mother’s right which enabled me to then flex the head and the head then automatically rotated without any pressure/force applied from me and the rest of the delivery followed. I would not describe using excessive force at this time. I only used the necessary force to dislodge the head. In fact, it was the change in position of my hand and the breaking of suction that effected delivery….”.[25]In her later statement (12 April 2012 Statement, paragraph 6), she added:
“I achieved minimal flexion in this manner [i.e. with the initial assistance of Midwife Harling pushing from below] which was inadequate to disimpact the head and therefore moved the head slightly to the right whilst still trying to put my hand sufficiently underneath the baby’s head to achieve adequate flexion and disimpaction…. At no stage did I try to rotate the baby’s head or forcibly push it to one side and I am not sure how practically such measures would be achieved.”
[26]In her cross examination, Dr Gupta said that she felt the movement of the impacted head to the baby’s left (mother’s right), and accepted that such a movement was “unusual”. Although she accepted that it was inappropriate deliberately to move the baby’s head to one side by imposing lateral pressure upon it, she said that, in the course of insinuating her hand, she was prepared to move the head to one side, as that was the only way in which she could insert her hand. She reiterated that she only used the force necessary to pass her hand round the head, and hence flex and disimpact it.[27]In terms of time, as I have indicated, there were 6 mins between Dr Gupta opening the uterus and delivering the baby. Of those, she thought that about 5 mins were spent by her trying to disimpact the baby’s head by manipulation; and, of those, perhaps 2½-3 mins were spent with Midwife Harling also putting upward pressure from below.[28]Once Dr Gupta was able to get her hand under the baby’s head, as she had described, then she was able to break the seal and suction-effect. She was then able to draw the head out of the pelvis, and the mother’s abdomen, and deliver the baby. During that procedure, she said the baby’s head spontaneously rotated, as expected.[29]The baby was white and floppy at birth, with no respiratory effort. He was given cardiac massage and oxygen by mask, and was resuscitated by a paediatrician to the extent that respirations were established by five minutes. He was noted to have a “boggy swelling on the back of his head”, and a CT scan two days later established that he had sustained a fracture to his right parietal bone with extensive haemorrhaging within the right cerebral hemisphere of the skull, and also a subgaleal haemorrhage.

The Alleged Negligence

[30]In paragraph 15 of his Particulars of Claim, the Claimant set out a substantial number of allegations of negligence, but by trial those had been narrowed down effectively to one, namely that, in disimpacting the Claimant’s head from his mother’s pelvis, Dr Gupta used force which was excessive, i.e. force that was unreasonable and unnecessary for the purpose. No allegations are made in relation to the care during pregnancy or during the period of labour prior to the first attempt to disimpact the head during the C-section operation, nor in relation to any aspect of the post-natal care and treatment of the Claimant. Indeed, it appears to be uncontentious that the latter was of a particularly high standard. Neither is any allegation made against the part played in the operation by Midwife Harling.[31]I have already described the relevant injuries to the Claimant, namely the fracture to the right parietal bone and intra-cranial bleeding, and the subgaleal bleeding, which caused damage to the Claimant’s brain and hence his functional disabilities. Prof Thornton said that he did not know precisely how or when those injuries occurred; and it is the Defendant’s case that it is impossible to say precisely how or when they occurred, unsurprisingly, submitted Mr Miller, as neither her own hand nor the baby’s head were visible to Dr Gupta when she was disimpacting the head, a procedure necessarily conducted without visual contact.[32]However, Prof Thornton accepted, and the Defendant now accepts, that the injuries were caused during the manipulation of the head to disimpact it. That concession is well made: there is no evidence that any of those injuries were caused either before the manipulation started or after disimpaction had been achieved or were spontaneous.[33]Nevertheless, although conceding that the injuries were in fact caused by Dr Gupra (or possibly Midwife Harling) during the course of disimpaction of the baby’s head, Mr Miller submitted that the fact of the injuries in the circumstances of this case did not amount to evidence of negligence, or at least sufficient evidence to make a finding of negligence. He submitted that the relevant literature and advice from national obstetric institutions showed that there is a well-recognised risk of such injuries in such circumstances, the approach of Dr Gupta was entirely appropriate, and the conclusion that she used unreasonable force in performing the manoeuvre cannot be drawn.[34]It is the Claimant’s case that Dr Gupta used excessive force to the baby’s head, in one or more of the following ways. 1. Rotation: Dr Gupta attempted to rotate the baby’s head whilst it was firmly impacted and held in place in his mother’s pelvis. 2. Deliberate Lateral Movement: Dr Gupta deliberately used lateral pressure on the baby’s head to move it to one side, in order to make space to insinuate her hand between head and pelvis. 3. The Wedge Effect: Although not deliberately using lateral pressure to move the head to one side, Dr Gupta insinuated her hand downwards between head and pelvis in such a way as to impose force on the head by virtue of the “wedge effect” so as to cause the injuries, in circumstances in which(a) it was unnecessary and dangerous to do so and(b) she ought reasonably to have foreseen the risk of such injuries. The “wedge effect” is the application of basic principles of physics: although the intention is to move the hand downwards, because the hand is in effect wedge-shaped, the downwards pressure also exerts a lateral force to the baby’s head and pelvis at each side.[35]In judging whether Dr Gupta was negligent in any of these respects, the standard is well-established, namely that of a reasonably competent doctor carrying out the functions expected of a specialist registrar in the delivery suite of a district general hospital (Bolitho v City & Hackney Health Authority [1998] AC 232). However, in relation to alleged mechanisms 1 and 2, it is common ground that, if Dr Gupta deliberately attempted to rotate the baby’s head or deliberately moved the baby’s head laterally, either would be an inappropriate and dangerous manoeuvre which no reasonably competent specialist registrar would have performed – a proposition which Dr Gupta accepted – the issue before me being whether Dr Gupta did either or both of such manoeuvres. The Alleged Mechanisms

Introduction

[36]As I have said, when a foetal head engages with the pelvic outlet, it compresses the available soft tissue. This is predominantly the maternal soft tissue round the inside of the pelvic cavity; although there is a small amount of foetal soft tissue round the head, and the plates comprising the skull are not at that stage rigid, so there may be some marginal movement between them too. However, overwhelmingly, it is the maternal soft tissue which is required to compress sufficiently for the head to pass through the pelvic outlet.[37]Where the labour is obstructed because the cephalopelvic disproportion is such that the head will not pass through the pelvic outlet, the head may become deeply impacted and the relevant soft tissue severely compacted. However, where vaginal delivery is abandoned in favour of a C-section and the obstetrician has to disimpact the head, he or she has to attempt to insinuate a hand between head and pelvis, by (so far as possible) compressing the maternal soft tissue still further. Sometimes, as in this case when Dr Gupta tried first to insert her hand between the baby’s head and the pubic symphysis, at a particular point on the circumference of the head, it is simply not possible to insert the hand sufficiently to break the seal between head and pelvic soft tissue. When that is not possible, as I have described, there are other techniques available, e.g. moving the hand to a different position on the circumference of the head, pushing the head upwards from the vagina, and/or pulling the baby upwards from the shoulders or by the legs.[38]Although the pressure on the soft tissue at different parts of the circumference of the head may vary, generally the more impacted the head, the more compacted the soft tissue will be and the more difficult it will be to insinuate a hand between head and pelvis.[39]As Mr Miller stressed, a C-section with a deeply engaged head is relatively common. Singh & Varma (in the article referred to in paragraph 8 above) said:
“The true incidence of caesarean section with a deeply engaged head is unknown, but it is probable it accounts for 25% of all emergency [i.e. non-elective] caesarean sections. Women who have had a failed instrumental delivery followed by a caesarean section in late labour account for most of these cases.”
As Mr Miller suggested, it may well be that the implication of this is that a head may be more deeply impacted following a failed instrumental delivery (i.e. delivery with the assistance of a ventouse or forceps), and may therefore be more difficult to disimpact than if there had been no such attempt. In any event, I accept that a deeply engaged head is a relatively common feature of delivery by way of C-section. Both Prof Bennett and Prof Thornton had frequently come across such a feature; as had Dr Gupta herself.[40]Clearly, the Claimant’s head in this case was deeply impacted in his mother’s pelvis. Dr Gupta said that, when she was trying to insinuate her fingers between the right of the baby’s head and the pelvis, she found the head to be: “… firmly stuck…. [T]here was essentially no space at all…. [D]ue to the tight fit, I could only place the tip of my fingers under the baby’s head….” (14 December 2011 Statement, paragraphs 12 and 13). The highly experienced Midwife Harling said that she had “never felt a head so stuck in [her] 20 years of practicing as a midwife” (19 December 2011 Statement, paragraph 6); nor had Dr Gupta (14 December 2011 Statement, paragraph 18). Such an impacted head during a C-section delivery was a new experience for each of them.[41]However, during a C-section neither expert, despite his long clinical experience, had come across a situation in which a head was so impacted that passing a hand round it and/or pressure from below per vaginam had not been successful in disimpaction. Nor was there any evidence that they had heard of such circumstances in the hospitals they have worked. Neither expert had ever had to have recourse to attempts at a breech delivery by way of C-section (i.e. pulling the baby free by his or her legs). Other than on this occasion, Dr Gupta too had had no experience of a failure of the techniques she used in this case safely to disimpact a head during a C-section delivery.

Mechanism 1: Rotation

[42]The first alleged mechanism of injury is that Dr Gupta attempted to rotate the baby’s head whilst it was firmly impacted and held in place in his mother’s pelvis. By “rotation” is meant rotation of the head on a lateral axis, rather than flexion on a longitudinal axis.[43]The experts (and, indeed, Dr Gupta) agreed that any attempted rotation of an impacted head would be inappropriate and dangerous, and could have no sensible purpose because it could not reduce the effective circumference of the head to facilitate disimpaction. Only flexion could do that. In terms of the risks of such an attempt, trying to rotate a firmly impacted head would result particularly in shearing forces between the scalp and the skull, which may cause blood vessels there to burst (subgaleal haemorrhaging). However, Prof Bennett also considered that it would be possible that such forces might be so great laterally that they could also result in a depressed fractured skull.[44]Mr Miller submitted that Dr Gupta’s evidence had been consistent in respect of the allegation: she had consistently said that she did not attempt to rotate the head, but only to insinuate her hand between head and pelvis in order to flex and hence disimpact the head. Dr Gupta agreed with the experts: rotating the head could not have any possible benefit so far as disimpaction was concerned. Mr Miller submitted that it was inconceivable that an obstetrician would attempt a manoeuvre that was not only inappropriate, but which patently and to her knowledge could not have any positive effect.[45]In support of the contention that Dr Gupta did attempt to rotate the Claimant’s impacted head, the Claimant relies upon a variety of medical records and other documents, as follows (all emphases added). i) Dr Gupta’s own operation note (written immediately after the operation) included the following:
“Deflexed OP head – impacted – rotated in 3rd attempt – very difficult to disimpact & crash call for consultant sent out. M/w pushed from below. Head delivered – baby born flat.”
Head delivered – baby born flat.” Mr Maskrey submitted that that wording suggests an intention to rotate the head whilst impacted, and an attempt to do so. ii) There was a hospital investigation. Ms Liu and her husband complained about the level of care during labour and delivery, and, in any event, an investigation would have been required because of the serious adverse outcome. For the purposes of the internal investigation, Dr Gupta prepared a statement (undated, but prepared shortly after the relevant events), which included:
“With the help of the midwife I could dislodge the head and managed to rotate and deliver it in the third attempt.”
Again, the word “managed” suggests an intention to rotate the head, and ultimate success in doing so. iii) Midwife Harling also made a statement for the investigation, dated 20 March 2006, less than a month after the events. She said, of the period when Dr Gupta and she were working to free the head:
“I heard Dr Gupta say she had difficulty rotating the head for delivery.”
On the basis of the expert evidence, there can only be difficulty in rotating the head whilst it is impacted: once disimpacted, it spontaneously rotates, without any force. iv) The consultant obstetrician in charge of Ms Liu was Miss Katrina Erskine. Before the Chief Executive Ms Nancy Hallett responded to the complaints, she consulted Miss Erskine, as well as Mr Anil Gudi (another consultant obstetrician), Mr Maalouf (a consultant neonatolgist) and Ms Joan Douglas (a maternity matron). The eventual response (dated 18 May 2006) included the following:
“A team of experienced doctors and midwives were present in the operating theatre at the time of your son’s birth. They worked with all their skill to rotate the baby’s head and dislodge it from the pelvis.”
That indicates that Dr Gupta’s efforts were aimed at rotating the impacted head. v) Further, in her letter to Ms Liu’s GP on 9 March 2006, Miss Erskine herself said:
“The head was impacted and with the aid of pushing the head up from below and rotating the baby’s head, it was eventually disimpacted”.” vi) Mr Gudi saw the Claimant’s parents in February 2006. After that meeting, he prepared a file note which included the following: “The head was impacted and had to be pushed from below. By rotated this head [sic] eventually the head was disimpacted.”
The same file note responded to queries from Ms Hallett, including this response:
“The caesarean section was technically difficult with the head being very badly impacted and it requiring the registrar trying to rotate the head from above and the midwife pushing the head from below. With an impacted head she seems to have done what normally would have been done.”
That suggests that, not only did Dr Gupta attempt to rotate the head, but such rotation was necessary for disimpaction. Mr Maskrey submitted that, when considered together, these provided substantial evidence that, in her attempts to disimpact the baby’s head, Dr Gupta did attempt to rotate the Claimant’s head whilst it was impacted.[46]In response, Dr Gupta said that, although her operation note suggests she was trying to rotate the head, the note merely meant that she was successful in breaking the seal between the head and pelvis by flexing the head at the third attempt, with the rotation of the head occurring spontaneously thereafter. Mr Miller submitted that this note had been misinterpreted by her superiors who were dealing with the investigation. Dr Gupta left the hospital in March 2006, shortly after the events, for a post in another hospital, and she was not consulted about the response to the complaints: she was merely asked to provide a statement, which she did. These documents are therefore not (he submitted) as evidentially potent as they might appear. Of more relevance is the fact that all are agreed that rotation in these circumstances could serve no useful purpose, and it is therefore inherently unlikely that Dr Gupta would have performed such a manoeuvre.[47]At first blush, there is some force in those submissions; and I accept that Dr Gupta’s operation note and investigation statement, when looked at in isolation, may be ambiguous as to whether she was referring to an attempt to rotate the head whilst impacted or the spontaneous rotation of the head after disimpaction.[48]However: i) In both the operation note and the investigation statement (both made relatively shortly after the relevant events), Dr Gupta used phrases suggesting she had intended to rotate the head:
“rotated in 3rd attempt”, and “managed to rotate”. ii) In her investigation statement, Midwife Harling said: “I heard Dr Gupta say she had difficulty rotating the head for delivery.”
I am quite satisfied that that is a true recollection. Midwife Harling (an experienced midwife, and compelling witness) said that she had made notes immediately after the delivery, and had written her statement from those notes. That statement therefore represented what she remembered at the time. She said that that statement was her main statement, and she adopted it in her evidence. No one has suggested her recollection was wrong. Dr Gupta could not recall any conversation with Midwife Harling during the operation; but did not deny saying that which Midwife Harling recalled. She accepted that, if she had said it, it did not reflect what she said in evidence she was trying to do, i.e. flex and not rotate the head; and she would have had no reason to say it. It would have been (she said) “a misplaced focus”; because, although rotation of the head was a sign of success in disimpaction, there would be no difficulty in rotating the head at that stage. iii) Even if the investigation report and letters to the Claimant’s parents and doctor were written without specific direct input from Dr Gupta, they do not suggest that attempts to rotate an impacted head are obviously inappropriate. Indeed, they interpret the operation notes and investigation statement of Dr Gupta as indicating that she had attempted to rotate the impacted head; and refer to such rotation and/or attempted rotation without any suggestion that such a manoeuvre is inappropriate. iv) As, apparently, did the response to the pre-action protocol letter and the Defence. The pre-action protocol letter dated 7 July 2009, under the heading “Allegations of Negligence”, no doubt referring to the operation note, said that the head was rotated at the third attempt and the rotation of the head “indicates that considerable force was used on the part of those delivering [the Claimant]”. The Defendant’s solicitors’ response of 14 May 2010 said, in terms:
“It is denied that rotation of the baby’s head at the time of delivery by caesarean section is evidence of negligent care”
. Paragraph 15.7 of the Defence avers that:
“The baby could not have been delivered without some degree of rotation occurring in order to flex and disimpact the head.”
That pleading cannot be written off as a simple drafting error, because (i) it reflects the earlier correspondence and response to the letter before action to which I have referred, and (ii) Prof Thornton saw the draft Defence before it was served.[49]In the light of this correspondence and pleadings, Mr Miller’s submission that it is inherently unlikely that Dr Gupta would have performed a manoeuvre that was not only incapable of assisting in disimpaction but that incapability would be obvious to any reasonably proficient obstetrics registrar such as Dr Gupta, is very substantially weakened.[50]In relation to this alleged mechanism, Prof Thornton’s evidence was not of great assistance; because he gave his opinion on the basis of Dr Gupta’s evidence that she did not attempt a rotation, and only that basis. Prof Bennett said that such a manoeuvre, if attempted, would tend to cause shearing forces to be applied to the plane between the scalp and the skull, consistent with subgaleal bleeding there, resulting from the bursting of blood vessels in that plane. He said that, where there was such bleeding, because of the spread of the haemorrhage, it was impossible to say precisely where beneath the scalp the vessels had in fact burst. However, Prof Bennett said that the presence of subgaleal bleeding is evidence that substantial force was used to the head of the Claimant: the use of a ventouse (a vacuum extractor attached to the baby’s scalp, to aid vaginal delivery) imposes very severe shearing forces to the scalp, but even that device does not usually result in subgaleal bleeding. I accept that evidence of Prof Bennett.[51]I have not found the issue of whether Dr Gupta attempted to rotate the Claimant’s head whilst it was impacted an easy one. However, having considered with particular care both the evidence and the submissions of Mr Miller, I am satisfied that Dr Gupta did, unfortunately, attempt such a manoeuvre.[52]In coming to that conclusion, I have taken into account all of the evidence, but have been particularly influenced by the finding that, during the procedure, Dr Gupta said to Midwife Harling that she had difficulty rotating the head for delivery. As Dr Gupta accepted, difficulty rotating the head could only have occurred whilst the head was engaged because it would rotate spontaneously on disengagement from the pelvis and lifting out. The fact that this was said in the terms that it was, to an experienced colleague during the course of the operation, makes it particularly potent. I am quite satisfied that the words used did not mean that Dr Gupta was having difficulty disengaging the head by insinuation of her hand, following which rotation would have occurred spontaneously: that is not what she said, and it is noteworthy that a number of senior obstetricians (including Miss Erskine and Mr Gudi) interpreted the documents including this statement as indicating that Dr Gupta had attempted to rotate the impacted head. None appears to have considered then that such a manoeuvre was obviously inappropriate or ineffective. Dr Gupta’s own operation note and investigation statement also suggest that she attempted a rotation of the impacted head.[53]I have concluded that at the time of the Claimant’s delivery, experienced as she was and despite her evidence to the contrary, Dr Gupta did not consider that, to attempt to rotate an impacted head in these circumstances was not only inappropriate but necessarily ineffective; and, confronted with a head more impacted than any she had encountered before, she misguidedly attempted to rotate the Claimant’s head in the course of her attempts to disimpact it.[54]The Defendant accepts that such a manoeuvre in the circumstances it was performed was inappropriate and dangerous, and a breach of duty.[55]As I have indicated, Prof Bennett said that an attempt to rotate a severely impacted head would impose considerable shearing forces on the plane and membranes between the scalp and the skull, that would tend to rupture the blood vessels there and cause subgaleal haemorrhaging. If there had been an attempt to rotate the head in this case, he considered it likely that the Claimant’s subgaleal bleeding was caused by such a manoeuvre. I deal with the injuries that resulted from the manoeuvre below (see, particularly, paragraph 80).

Mechanisms 2 and 3: Deliberate Lateral Movement and The Wedge Effect

[56]The other mechanisms relied upon by the Claimant, in the alternative, are(i) Dr Gupta deliberately used lateral pressure on the baby’s head to move it to one side in a discrete movement, in order to make space to insinuate her hand between head and pelvis, or(ii) although not deliberately using lateral pressure to move the had to one side thus, Dr Gupta insinuated her hand between head and pelvis in such a way as to cause the pressure on the head by virtue of the “wedge effect” so as to cause the injuries in circumstances in which (a) it was unnecessary and dangerous to do so and (b) she ought reasonably to have foreseen the risk of such injuries.[57]These allegations to an extent derive from the evidence of Dr Gupta herself that, following earlier unsuccessful attempts to insinuate her hand to the right of the baby’s head, she(i) “therefore moved the head slightly to the right” and(ii) “managed to move the baby’s head slightly to the mother’s right [i.e. the baby’s left]” (suggesting she was trying to move the head thus), which enabled her to flex and disengage the baby’s head, and hence complete the delivery (see paragraphs 24-5 above).[58]The Defendant accepts that the fractured skull and consequent intra-cranial bleeding were caused by Dr Gupta and/or Midwife Harling’s manipulation of the baby’s head in their attempts to disimpact it. Further than that, Prof Thornton was not prepared to offer a view as to when and how those injuries occurred.[59]Prof Bennett considered that an attempt to rotate an impacted head, with sufficient force, could cause not only subgaleal haemorrhaging, but also a fractured skull and intra-cranial bleeding. However, on the basis of all the evidence in this case, he considered it more likely that, when Dr Gupta describes the Claimant’s head moving slightly to the right, she was in fact describing the fracturing and depression of the right parietal bone. Although she said it felt to her as though the baby’s head was moving across the pelvis rather than caving in, Dr Gupta herself considered the movement “unusual”.[60]The Claimant’s midwifery expert (Dr Burden) said of Dr Gupta’s comment about the movement of the head:
“I do not understand this comment as there would have been nowhere for the baby’s head to move to”
. That is because of the extent to which the head was impacted and the maternal soft tissue compacted where Dr Gupta was trying to insinuate her hand. Prof Bennett said that, in such an impacted case, there may have been room for marginal movement of the side of the baby’s head because of the soft tissues round the head and some movement within the plates of the skull, but such movement would have been “infinitesimal” and not significant in terms of insinuating the hand where it needed to go to flex the baby’s head.[61]Prof Thornton considered that the maternal soft tissues both to the back of the insinuated hand and on the opposite side of the head might have had some significant room for further compression; but that does not stand well with the evidence of the degree of impaction and compaction of soft tissues in this case. As I have said, this was the most impacted head that either Dr Gupta or the experienced Midwife Harling had ever come across; and Dr Gupta said, of the place where she was trying to insinuate her hand and prior to her felling the head move, “[T]here was essentially no space at all” (see paragraph 21 above). That is so even though the evidence was that the maternal soft tissue was, generally, oedematous and swollen.[62]I am satisfied that the baby’s head was very deeply and firmly impacted, and the available space by further compaction of the maternal soft tissue where Dr Gupta was attempting to insinuate her hand was so small as to be insignificant. I am also satisfied that Dr Gupta appreciated that that was the case. She said that, following attempts at insinuating her hand, there was “no space at all” at the relevant place. Further, although her evidence about her intentions in respect of the baby’s head and movement was not the clearest or most consistent, she said on a number of occasions that, however it was to be achieved, she appreciated that she was moving the baby’s head to the (mother’s) right, and wished to achieve that. She thought that that was the only way of getting her hand into the right place to flex the head from below. She appreciated that the maternal soft tissue was so compacted, that she would have to rely upon some significant movement of the side of the baby’s head by the palm of her hand to achieve her goal.[63]At this stage, it would be helpful to clear aside one point raised in the evidence of Prof Thornton. As I have indicated, he accepted the injuries were caused by either Dr Gupta and/or Midwife Harling as they worked at freeing at baby’s head, but he said that he could not say whether the injuries were caused by Dr Gupta’s hand or by Midwife Harling pushing the skull from below. However,(i) the Claimant now makes no claim in respect of Midwife Harling,(ii) Prof Bennett is of the opinion that the relevant trauma was caused by Dr Gupta, rather than Midwife Harling,(iii) no one other than Prof Thornton suggested that the injuries were caused by pressure from Midwife Harling, and(iv) the Defendant’s own midwifery expert (Ms Tracey Reeves) said that, if she had pushed with the flat of her two fingers as she said she did, it would not have been possible for Midwife Harling to have applied excessive pressure. That evidence of Midwife Harling as to how she asserted pressure was not challenged, and was compelling – I accept it. I am quite satisfied that the force by which the Claimant suffered his injuries came from the hand of Dr Gupta.[64]Although in those circumstances, Prof Thornton said that he was unable to say when the fracture had occurred, on the balance of probabilities, I am satisfied that the depressed fracture and associated intra-cranial bleeding occurred when Dr Gupta describes the baby’s head moving to his left (his mother’s right). As Dr Gupta herself described, there was no space for her hand to go in that plane, the maternal soft tissues were so compressed already. That must apply to the tissues both on the side of the baby’s head Dr Gupta was working and the opposite side. Dr Gupta considered that the only way she could get her hand sufficiently insinuated was for the head to be moved; but there was no significant space available on either side of the skull by further compaction of maternal soft tissue. In short, there was nowhere for the baby’s head to go. Dr Gupta was no doubt unused to the sensation of depressing a skull: and I consider that the impression she had of the head moving (rather than being depressed) was unfortunately false. I accept the evidence of Prof Bennett on this point: he considered that, on the balance of probabilities, that was when these traumatic injuries were caused. On the evidence, I am very firmly of the view that that was the moment that the depressed fracture occurred.[65]Mr Miller relied upon the Joint Memorandum of Profs Bennett and Thornton following their meeting of 4 March 2012, to the contrary; but I do not consider that that document supported that contrary contention. The particular question (in bold) and response reads as follows:
“Dr Gupta describes, in paragraph 16 of her witness statement, managing to move the Claimant's head slightly to the mother's right. Given the stated position of the fetal head in the pelvis, would movement to the right have been possible? ST and PB agree that movement of the fetal head will occur when the operators hand is introduced laterally. However normal practice would be to flex the fetal head rather than forcibly pushing the fetal head to one side or the other. PB states that if the head is impacted in the pelvis, the only direction in which significant movement can be made safely (once the operators hand is beside fetal head) is a movement upwards and out of the pelvis.”
[66]Mr Miller suggested that Prof Bennett was thereby accepting that some slight movement of the foetal head could be expected in this manoeuvre – which is precisely what Dr Gupta reported – and consequently he could not support a contention that the movement was unusual or untoward. However, Dr Gupta accepted that she considered the movement she felt was unusual. Further, Prof Bennett explained that, by the response read as a whole, he meant that it was his opinion that, where a head was severely impacted and the maternal soft tissue consequently severely compacted, introduction of a hand would move the head (because of the compression of the foetal soft tissue and marginal compression of the plates of the skull), significant movement of the head could only be upwards for flexion and not lateral, i.e. “significant” in the context of the aim of insinuating the hand sufficient to allow flexion. I accept that: it reflects the words used in the memorandum.[67]I also accept the evidence of Prof Bennett in one further regard. He said that, although skull fractures are not uncommon in birth delivery, quite substantial lateral force on the baby’s skull would have been required to have caused a depressed fracture and intra-cranial bleeding; and a competent obstetrician would have known that such force was being applied, and sensed such a fracture occurring. Also, he said that, if an obstetrician got the impression of the impacted head being moved across the pelvis as a result of the force being used, then he or she should at least wonder whether the force used was not too great.[68]The Defendant relied upon evidence from learned literature for the proposition that “skull fracture is an unusual but recognised complication of [C-section]” (Prof Thornton January 2012 Report, paragraph 27). However, on analysis, the literature does not support the Defendant’s case. The main paper relied upon by Prof Thornton was Alexander JM et al Fetal injury associated with caesarean delivery. (2006) Obs & Gyn 108; 885-890, which retrospectively examined 37,110 caesarean deliveries. Six fractured skulls were reported. However, half of those followed a failed instrumental vaginal delivery – a fractured skull is a well-established complication of use of forceps – and there was no recorded case where there had been no such failed instrumental delivery, and skull fracture and intra-cranial bleeding had been suffered. This paper does not provide the Defendant with any significant support.[69]With one exception, nor does any other paper relied upon, for the same reason: none recorded a case of fractured skull and intra-cranial bleeding following C-section where there had been no prior failed instrumental delivery.[70]The exception is Tan EK Difficult caesarean delivery of an impacted head and neonatal skull fracture: Can the morbidity be avoided? Journal of Obstetrics and Gynaecology 27:4; 427-428. This single case study certainly has some features similar to the Claimant’s case: a C-section was performed with the cervix 9 cm dilated, difficulties were encountered with the disengagement of the deeply impacted head and the baby was born with a right posterior parietal fracture and intra-cranial bleeding. However, it is only a single case study, and one which appears to concentrate on the dangers of inappropriate and/or excessive force being used by the assistant below; even if it can be assumed there manual insinuation occurred or was attempted at some stage, there is no reference to the dangers of the insinuating hand using excessive force. In my view, particularly in the face of the other evidence in this case, this article is of minimal assistance to the Defendant.[71]Nor did I find the professional advice which the Defendant relied upon of much help. The July 2010 guidance of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists entitled Delivery of the fetus at caesarean section says:
“… [T]here is potential for traumatic injury at caesarean section. These injuries include: 1. Skull fracture and/or intra-cranial haemorrhage following disimpaction where the head is deep in the pelvis”; and, later, the risks of C-section where the head is deep in the pelvis are said to include: “Fetal injury including skull fracture and/or intracranial haemorrhage…”
. However, it is not suggested that that is a risk which cannot be avoided by use of appropriate techniques and proper care. Indeed, the paper indicates that the elevation of the head in these circumstances may be achieved by the obstetrician passing his or her fingers between the head and the pelvis to below the head and the exertion of pressure upwards and/or pressure from an assistant vaginally.[72]The other evidence in this case to which I refer includes the evidence of both Prof Bennett and Prof Thornton, that they had always managed to disimpact a baby’s head in these circumstances, using the techniques adopted by Dr Gupta; and had never experienced such injuries as occurred in this case as a result of attempts to disimpact a head during a C-section, either personally or in the context of the hospitals in which they had worked. Neither had Dr Gupta. Whilst it is true that Dr Rennie (the Defendant’s neonatal expert, who was not called to give oral evidence) said in her report (at page 22) that the injuries seen in this case show “a pattern of damage I have come across before when the fetal head requires disimpaction at caesarean section, although it is uncommon”, that is unspecific about the pattern referred to, and, in the absence of any particulars or testing, is of little weight.[73]In respect of this case, Dr Gupta said that she considered the impression of movement of the baby’s head to have been “unusual”. From her evidence, she was clearly aware that, at a particular place on the circumference of the baby’s head, it might be impossible to insinuate a hand safely: she had found it impossible to do so between the head and the maternal symphysis pubis in the Claimant’s case.[74]On the basis of all the evidence, I am satisfied that Dr Gupta ought to have been aware that the lateral force she was applying to the baby’s head, sufficient to cause the depressed fracture and intra-cranial bleeding, was excessive and gave rise to a foreseeable substantial risk of injury of the nature suffered by the Claimant; and that she ought to have been aware that the movement she began to feel as a movement of the baby’s head was, in the circumstances of this case, the skull being fractured and significantly depressed. She was aware that insinuation of the hand at a particular place on the circumference of the head may not be possible – it had proved impossible between the head and the maternal symphysis pubis in the case – and she had called the consultant because she was concerned that safe delivery by this method might not be possible for her and Midwife Harling alone.[75]For those reasons, even if I had not been satisfied that Dr Gupta had deliberately moved the baby’s head laterally, in a discrete movement over and above the lateral movement caused by the wedge effect of the manoeuvre she was performing, I would have found the Defendant liable on mechanism 3. Insofar as the fractured skull and intra-cranial bleeding were caused by the lateral force on the baby’s head which resulted from the wedge effect of Dr Gupta’s insinuating hand, in my judgment that force, of which she was aware and which she intended to result in the movement of the baby’s head, was excessive, unnecessary and dangerous; and she ought reasonably to have foreseen the risk of such injuries by performing such a manoeuvre. I would have found that, by performing such a manoeuvre as she did, that was a breach of duty.[76]However, I am in fact satisfied that Dr Gupta deliberately moved the head laterally, in a distinct movement as opposed to merely as an adjunct to insinuating her hand. As I have said, she was under the belief that the head had to move as the only means of enabling her to insinuate her hand sufficiently to allow flexion and release of the head; so a deliberate movement to that effect perhaps comes as little surprise. Her statements for this claim also indicate that that movement was deliberate and discrete: she said that she “managed to move the baby’s head slightly to the mother’s right”, and “I achieved minimal flexion in this manner [i.e. with the initial assistance of Midwife Harling pushing from below] which was inadequate to disimpact the head and therefore moved the head slightly to the right whilst still trying to put my hand sufficiently underneath the baby’s head to achieve adequate flexion and disimpaction….” (see paragraphs 23-4 above: emphasis added). Those are written in terms of a deliberate intention, and a deliberate force to the baby’s head. Whilst there are other passages suggesting no deliberate force, in my view, those are substantially undermined by their context. For example, Dr Gupta said:
“At no stage did I try to rotate the baby’s head or forcibly push it to one side and I am not sure how practically such measures would be achieved.”
The second part of that sentence (emphasised) is not entirely clear; but suggests that Dr Gupta did not see how, in practice, the head could be moved to one side, because it was so severely impacted. However, in her oral evidence she accepted that she wished to achieve that very movement.[77]The circumstances of the case generally also support that conclusion. Dr Gupta had been attempting to insinuate her hand below the baby’s head for perhaps 4-5 mins, with Midwife Harling assisting from below for some minutes: although Dr Gupta said she was not “panicking” and time was not by then of the essence, there was a need to deliver the baby reasonably promptly. Whilst there were still some minutes available before the baby would become distressed if not delivered, Dr Gupta said that, in an uncomplicated C-section, KTU to delivery would be a minute or less: in this case, she had spent 5 mins attempting to disimpact the head. She was anxious to deliver the baby promptly.[78]The Defendant accepts that a deliberate, discrete lateral movement of the baby’s head as I have found was inappropriate and dangerous, and a breach of duty.

Conclusion

[79]I have considered Dr Gupta’s evidence very carefully. I have no doubt that, in giving it, she was attempting to assist and was genuinely attempting to recollect what happened. However, having considered all of the evidence, I am quite satisfied that she does not have a true recollection of the events at the delivery of the Claimant: I am satisfied both that she attempted to rotate the Claimant’s head, and deliberately and discretely moved the baby’s head to the (mother’s) right to enable her to insinuate her hand to flex and disimpact the head. The Defendant concedes – but, in any event, I would readily find – that each of those manoeuvres was inappropriate, dangerous, negligent and hence in breach of duty.[80]Primarily on the basis of Prof Bennett’s evidence, I am satisfied that the attempted rotation of the head caused the subgaleal haemorrhaging suffered by the Claimant; and the movement of the head caused the right parietal fracture and consequent intra-cranial haemorrhaging.[81]For those reasons, on the issue of liability, I find for the Claimant; and will order judgment to be entered accordingly.