Ireland v Secretary of State for Health (Sued As South Tyneside NHS Foundation Trust) [2016] EWHC 194 (QB)

[2016] EWHC 194 (QB)Case No 9NE 90060IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONNEWCASTLE UPON TYNE DISTRICT REGISTRYNewcastle Crown CourtThe Quay Side, NE1 3LA.Date 11 February 2016
Before
THE HON MR JUSTICE COULSON
Between
Jackson James IrelandClaimantSecretary of State for HealthDefendant
Stephen Grime QC (instructed by Longden Walker and Renney) for ClaimantStephen Miller QC (instructed by Ward Hadaway) for DefendantHearing Hearing dates: 14, 15, 16, and 17 December 2015
JudgmentThe Hon. Mr Justice Coulson:
[1]INTRODUCTION AND THE LAW The claimant, Jackson Ireland, was born at South Tyneside District Hospital (“the hospital”) at 6:40am on 6 August 1992. The defendant is responsible for the hospital and the reasonable performance of its medical staff. Jackson suffers from cerebral palsy which was caused by a shortage of oxygen (hypoxic ischemia) for a period of not less than 5 minutes and not more than 10 minutes immediately before his delivery. Although, happily, his cognitive function was preserved, Jackson suffers for a range of physical disabilities as a result of the events surrounding his birth.[2]Jackson’s mother is Lorraine Routledge. In these proceedings, it is said that the defendant’s medical staff were negligent during the latter stages of Lorraine’s antenatal care, and in the management of her labour and delivery. That delivery was an assisted breech delivery, carried out by an obstetric consultant, Mr MacKay, assisted by Dr Veronica Miller who, at that time, was acting Registrar in the obstetrics and gynaecology department at the hospital. Jackson was delivered in poor condition, with the unusually short umbilical cord wrapped three times around his neck. It was the compression on the cord and the strangulation effect which caused the hypoxic ischemia.[3]The issues in this case involve a consideration of the care and advice given to Lorraine shortly before the delivery, and the events between about 5:30am and 6:40am on the morning of 6 August 1992. The trial was limited to issues of liability and causation: if I find in favour of Jackson, then there will be a subsequent trial to deal with all issues of quantum.[4]I can deal very briefly with the law. The relevant test to be applied is the well-known formulation of McNair J in Bolam v Friern NHS Hospital Management Committee [1957] 1 WLR 583 at page 587:
“…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
This test was approved by Lord Scarman in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and refined by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232.[5]This is not a case about systems failures. Although Mr Clements suggested that the hospital operated a two-tier system for obstetric cover when Dr Miller was on duty overnight (because she was only an acting Registrar) and a three-tier system when either of the two full Registrars were on duty, I was wholly unpersuaded that this made any difference either to these events or at all. Moreover, Mr Clements did not suggest that, even if this was a proper analysis, the two-tier system for obstetric cover was in any way unacceptable or bad practice. Thus this is a case which is confined entirely to what did or did not happen at particular stages of Lorraine’s care.[6]I propose to deal with the factual and expert issues in this way. In Section 2 below, I set out the relevant chronology of events, taken almost exclusively from the contemporaneous documents. In Section 3 below, I outline the witnesses called by the parties and make brief observations upon them. In Section 4 below, I deal with the issues of liability and causation concerning the failure to perform External Cephalic Version (“ECV”), a method by which the baby might have been turned prior to delivery. In Section 5 below, I deal with the issues of liability and causation concerning the allegation that the trial of labour should have been induced in a controlled environment. In Section 6 below, I deal with the issues of liability arising out of the actual birth and delivery of Jackson on 6 August 1992, and in Section 7, I address the corresponding issues of causation. There is a short Section 8 setting out my conclusions. I should say at the outset that, in undertaking these tasks, I have been greatly assisted by the focussed submissions of leading counsel on both sides.[2]CHRONOLOGY[7]Lorraine had her first child, a son, on 10 June 1977. There were no difficulties or complications at birth. Jackson is her second child. When Lorraine became pregnant with Jackson, she was 31. Her estimated due date was 25 July 1992. She attended regularly for antenatal appointments from 17 February 1992 onwards. It appears that, at that early stage, she was under the overall care of Mr MacKay, although it is unclear whether or not he ever examined her. In April 1992, when the defendant took on a fourth consultant in the maternity unit at the hospital, Lorraine was transferred to the care of Mr B K Ghosh.[8]On 26 June 1992, at about 35 weeks, Lorraine was seen by a community midwife, Ms Bronwyn Boddy. Ms Boddy also worked at the delivery suite at the hospital. She was a very experienced midwife. She identified for the first time that there was a breech presentation. At the next appointment on 2 July 1992 (36 weeks and 5 days), Ms Boddy again identified a breech presentation. A scan on 10 July 1992 (37 weeks and 6 days) further confirmed the breech presentation.[9]The features of the breech presentation in this case were as follows. The foetus was upside-down in the womb, lying with his head at the top and his bottom closest to the vagina. His legs were flexed: in other words they were bent at the hips and again at the knees, as if he had tucked up his legs. At this stage, neither of his legs was extended downwards.[10]On 17 July 1992 (38 weeks and 6 days), Lorraine was seen by Mr Ghosh. He again confirmed the breech presentation and he advised what the notes described as a “trial of breech delivery”. In other words, he was suggesting that arrangements be made for Lorraine to deliver Jackson normally, notwithstanding the breech presentation but that, if this proved difficult, the baby would instead be born by Caesarean section.[11]This was confirmed at Lorraine’s appointment on 31 July 1992, which referred to her having a CTG “early next week for Trial of Lab [labour]”. By this time she was at term (40 weeks) plus 6 days. There was no attempt to fix a preliminary date for an induction, despite the fact that it was agreed by the experts that an induction was automatically required at term plus 14 days. In fact, by 6 August, Lorraine was at term plus 12 days and still no arrangements had been made for an induction.[12]From this point on in the chronology, I make findings as to approximately when particular events occurred. I have taken the timings principally from the print-out of the CTG machine, which timings are largely supported by the more approximate timings in the medical notes. I am confident that the events described below happened within minutes (either way) of the approximate time which I have ascribed to it.[13]Lorraine went into first stage labour at home in the early hours of 6 August. She was admitted into hospital at about 5:30am that morning. It appears that she was taken either directly to one of the hospital’s High Risk delivery rooms, or taken there after only a short wait in the maternity unit’s assessment room. I find that, on the balance of probabilities, all of Lorraine’s examinations took place in the High Risk delivery room.[14]At about 5.40am, Lorraine was vaginally examined by an experienced midwife, Mrs Susan Ward, who found her to be 6 centimetres dilated. More importantly, Mrs Ward found that the breech was now a footling breech; that is to say, one of the legs was extended down towards the neck of the womb. The evidence was that a footling breech changed everything: now that a footling breech had been diagnosed, a Caesarean section was required.[15]Mrs Ward noted that Lorraine was experiencing strong contractions, one every four to five minutes. The foetal heart was heard and continuous foetal monitoring was commenced using cardiotocography (“CTG”) at about 5:43am. At about 5:50am, Ms Ward contacted Dr Miller, the acting Registrar on duty in the hospital. It appears that Dr Miller examined Lorraine at about 5:55am and confirmed the footling breech presentation. She also noted that the membranes had ruptured. She recorded that Lorraine was 7 centimetres dilated. Her notes, completed shortly afterwards, were timed at 6am.[16]Because of the footling breech presentation, Dr Miller went outside the delivery room and used the phone on the wall to ring Mr MacKay, the on-call consultant obstetrician. As she put it at paragraph 5 of her witness statement:
“As there was a footling breech presentation I then rang the consultant obstetrician on call, Mr MacKay immediately to discuss the need for a Caesarean section thereafter. On the telephone, I made Mr MacKay aware of the patient’s obstetric history together with my findings upon examination. He agreed that a Caesarean section was required and advised that he would come into the hospital from home immediately to assist. In the meantime however he advised that the patient should be prepared in theatre. I then contacted by telephone the anaesthetist on-call, Dr Roy, who was also sleeping at home.”
[17]When he gave oral evidence, Mr MacKay said that he was coming “back into hospital” to attend Lorraine. This was because there had already been an emergency Caesarean in the theatre of the maternity unit between 3.55am and 4.40am that morning. Both Mr MacKay and Dr Miller had been in attendance at that operation. Dr Roy, who had not been at the earlier operation, also agreed to come into the hospital to attend Lorraine.[18]Whilst Dr Miller was outside using the telephone, Mrs Ward became aware that the foetal heart rate had dropped significantly. This is known as bradycardia. When Mrs Ward became aware of the bradycardia and when she alerted Dr Miller to it are both in issue, so I deal with them in detail in Section 6.3 below.[19]However, there was no dispute that Mrs Ward came out of the delivery room to inform Dr Miller of this development. Dr Miller went back inside. She saw from the CTG trace that the foetal heart had decelerated to 75bpm (the normal range being between 110-160bpm). As a result, Dr Miller placed Lorraine on her side in the left lateral position and provided her with oxygen. A further vaginal examination (the second performed by Dr Miller and the third in total) confirmed that Lorraine was still 7 centimetres dilated. The umbilical cord had not prolapsed down, so that was not the cause of the bradycardia. Dr Miller’s note recording all this was timed at 6.10am and was plainly written after the event. I take it from that that Dr Miller became aware of the bradycardia some minutes before 6.10am.[20]Bradycardia is very serious. I accept Mr Clements’ evidence that “it is the code for a dying baby”. This was now a real emergency. Mr MacKay arrived at about 6:20am. Dr Roy was not yet there and Mr MacKay’s noted recorded that they were “awaiting Dr Roy”. The foetal heart remained at about 70bpm, which was still very low. An urgent Caesarean section operation was required.[21]There was then a fourth and final vaginal examination. Although there was some debate as to who had performed this task, I find on the balance of probabilities that it was Mr MacKay. Lorraine said in her evidence that “at the last minute before I was moved [into the theatre] somebody else came in to examine me”. That somebody else could only have been Mr MacKay. His notes, timed at 6.20am, record that, for the first time, Lorraine was “fully dilated” and “pushing”.[22]The effect of the full dilatation meant that the plan to deliver Jackson by Caesarean section had been overtaken by events. Because Lorraine was fully dilated, she was in second stage labour, and was involuntarily pushing. In those circumstances, the evidence was that it would have been very unusual to perform a Caesarean (although that might happen in an emergency). Thus the plan switched again, back to an assisted breech delivery.[23]Despite this change of plan, at about 6:28am, when the CTG print-out stops, Lorraine was put on a trolley and taken in to the operating theatre two rooms down the corridor. Because surgery was not now going to be performed and Lorraine was already in a High Risk delivery room which, on the basis of the evidence, had all the equipment that would have been required, there is a complaint that the move to the operating theatre was an unnecessary distraction which delayed the birth at a time when everyone knew that every moment counted. I deal with that in Section 6 below.[24]At 6:30am Mr MacKay wrote the following note:
“Take to theatre. Foetal heart 70bpm. Pushing and Body came down > buttocks with feet at side. Dr Roy arrived. See delivery notes.”
[25]It is not clear when Lorraine arrived in the operating theatre. Although Mr Grime QC, on behalf of the claimant, argued that the trace markings on the CTG print-out showed that the machine started up again at 6.35am, which could therefore be taken as the time of the restart in the theatre, I do not agree. The handful of dots on the print-out at 6.35am could have been caused by anything and do not prove, even on the balance of probabilities, that the machine was re-connected at 6.35 for the last stages of labour. There is no meaningful trace shown at all. Furthermore, it is difficult to see how it could have taken 7 minutes to move Lorraine two rooms, although I accept that it would have taken some time because of the contractions and the need to use the trolley.[26]Lorraine delivered the legs and abdomen in one push and Dr Miller carried out an episiotomy to assist in the final stages of delivery. When Jackson was born the cord was wrapped three times around his neck. The delivery notes (prepared by Dr Miller) noted that the wrapping around the neck was “tight”. The notes record that his head was delivered “gently” by Mr MacKay at 6:40am. Throughout all of this, the foetal heart monitor was indicating a very low heart rate. The bradycardia persisted in total for 40 minutes.[27]It was immediately apparent that all was not well with Jackson. He had Apgar scores of one at 1 minute and two at 5 minutes. He was described as “flat and blue” with a heart rate of less than 100bpm. He did not establish regular respirations until 34 minutes after birth. Lorraine was told there had been complications and Jackson was taken to the Special Care Baby Unit. However he was discharged with Lorraine on 14 August 1992. Lorraine was always concerned that there were things which, as the months passed, Jackson could not do which she thought he ought to be able to do, but it was only when Jackson was three that the diagnosis of cerebral palsy was confirmed.[3]THE WITNESSES 3.1. The Claimant’s Factual Evidence[28]The claimant’s factual evidence consisted of a written statement and oral evidence from Lorraine, and a written statement, admitted under the Civil Evidence Act, from her then partner, Darren Ireland.[29]I consider that Lorraine was an honest witness, who understandably struggled to recall the detail of these traumatic events, particularly given that they happened so long ago. There was really only one issue arising out of her evidence, which was concerned with the nature of the advice she was given (if any), about the turning procedure known as ECV. I set out my findings on that issue in Section 4 below. 3.2. The Defendant’s Factual Witnesses[30]The defendant relied on a witness statement from Dr Roy, the retired anaesthetist, which was admitted under the Civil Evidence Act. It dealt with peripheral matters only. In addition, the defendant called four witnesses of fact: Mr MacKay, the consultant; Ms Boddy, the midwife and delivery suite manager; Dr Miller, the acting Registrar; and Mrs Ward, the midwife who admitted Lorraine to the delivery suite.[31]Mr MacKay had retired in 1994, so the fact that he could remember anything about these events was remarkable. On one or two occasions, dealt with in greater detail below, he confirmed that a particular procedure or alternative intervention was not something which the defendant’s hospital offered, but he was less than convincing as to why it was not offered.[32]I find that Ms Boddy and Mrs Ward were clear, direct and honest. They were obviously guided by their contemporaneous notes at the relevant events but that was, after all, the main purpose of such notes in the first place.[33]Dr Miller was also guided by her notes. Unlike the other three defendant’s witnesses, she did not always answer the questions that were put to her in cross-examination. I concluded that this was mainly the result of nerves rather than anything deliberate. It was also partly because she did not always listen to the question actually being asked. This did make some of her answers rather elliptical. 3.3. The Expert Witnesses[34]The claimant called Mr Roger Clements, an expert obstetrician and gynaecologist and Mrs Sandra Tranter, an expert midwife. They dealt principally with issues of liability. The claimant also called Dr Andrew Lyon and Dr L Rosenbloom, who both dealt with issues of causation. In addition, there was a report from Dr W Forbes, a consultant neuroradiologist, whose report was read, and which did not add to the evidence on the controversial issues.[35]The defendant called Mr Derek Tuffnell, a consultant gynaecologist and obstetrician and Ms Jean McConville, a midwife, to give evidence on liability issues. They also called Professor Chiswick and Dr Miles on issues of causation. They too had a report from a consultant neuroradiologist, Dr Brian Kendall. His evidence was admitted under the Civil Evidence Act but again it did not go to any controversial issue.[36]Given the particular issues in dispute, the most important experts were the two obstetricians. Mr Clements was a clear witness with undoubtedly strong views. He was at times a little over-aggressive in his answers to Mr Miller QC’s questions, with the result that, although I did not doubt the firmness of his conclusions, I did not always find his answers convincing. Mr Tuffnell was rather more measured although, at times, he sought to play down the obvious importance of some of the medical literature which did not assist the defendant’s case. On many, but by no means all the issues, I preferred the approach of Mr Tuffnell. My reasons are explained in my analysis of the individual issues. But as a general observation, I considered that Mr Tuffnell’s answers always reflected the fact that this case concerns what was acceptable medical wisdom 23 years ago, whilst sometimes Mr Clements forgot that basic premise.[37]The two midwife experts agreed on many of the relevant issues and, following Mrs Tranter’s proper abandonment of one particular allegation, it meant that their principal focus was the events during the actual labour. For the reasons explained in detail in Section 6 below, I found this to be the weakest part of the claimant’s case.[38]As for the causation experts, they were clear, concise, and almost entirely agreed. I deal with their evidence in greater detail in Section 7 below.[4]THE ISSUES/ECV 4.1. Issue 1: Was ECV offered to Lorraine at any stage of her pregnancy? 4.1.1. The Facts[39]At the commencement of these proceedings, Lorraine had not suggested that she had ever been offered the possibility of turning the baby prior to delivery. This was referred to at the trial as ECV. There was no mention of this in her original statement dated 7 June 2010. However, in her supplementary statement, dated 15 April 2011, she said that at one of her appointments (possibly the one on 17 July 1992, noted at paragraph 9 above), “I was told that the hospital would try and turn it when I went into the hospital once I was in labour or I would have a Caesarean section.” Accordingly, it was suggested that the defendant had offered her the option of ECV which they then failed to perform.[40]Much was made by Mr Miller QC on behalf of the defendant that this passage only came about because Mr Clements had asked Lorraine in consultation whether she had been offered any sort of turning option. Although it was suggested that Mr Clements was putting words in Lorraine’s mouth, I think that is unfair. I accept Lorraine’s explanation that she had not referred to turning before because no-one had asked her about it before.[41]That said, I consider that, on a proper analysis of the facts, Lorraine was not offered ECV. There are two separate reasons why I have reached that conclusion. First, when she answered questions about this part of her statement, Lorraine agreed that Dr Ghosh had not said that they would turn the baby when she was at the clinic (i.e. before labour). The most he had said was that “there was a possibility that the baby might turn when I went into labour. And they could help us.” She confirmed, when she answered questions from Mr Miller QC, that all she could remember was that it had been said that, if the baby turned in labour, they would give it a bit of help. That was not a clear offer of ECV. It sounded much more like something that she was told might happen as part of a standard assisted breech delivery.[42]Secondly, ECV could not have been offered by anyone at the hospital because it was quite clear from the evidence that, in 1992, it was not a technique or procedure which was performed there. That was what Mr MacKay said in terms at paragraph 6 of his second witness statement; and that was what Ms Boddy said at paragraph 5 of her witness statement. Although both of those statements were qualified, in that they said that it was not a procedure that was routinely offered, it was quite clear from the cross-examination of Mr MacKay that it was not offered at all. It was clear that that was a departmental policy, a practice at the hospital. Mr MacKay said in cross-examination:
“It was not done routinely or frequently. It may have been done on some occasions. At term. I wasn’t really happy to do them. I did not do them… My colleagues did not do them routinely. Whether they did them occasionally, I don’t know…We didn’t do them.”
[43]Accordingly, I find that the defendant’s staff did not at any time offer Lorraine the possibility of an ECV. It would have been contrary to their practice at the time. The next question is whether they should have offered it. 4.2. Issue 2: If the answer to Issue 1 is No, should ECV have been offered; and at what stage of Lorraine’s pregnancy? 4.2.1. The Facts[44]There were a number of factors which suggested that ECV at term might have been successful in this particular case. They were identified by Mr Clements in his evidence. The first was that Jackson was small baby, just 2.5kg at birth. The second was that Lorraine was multiparous, meaning that she had already had at least one child. The third was that there was plenty of liquor, or amniotic fluid. And finally, the breech was flexed (i.e. the legs were bent at hip and knee), which would have assisted in any turning procedure.[45]One factor that militated against ECV was that the umbilical cord was short and was wrapped round Jackson’s neck. Of course, that was only discovered when Jackson was born. It would not have been known at the time that the defendant was, on this hypothetical basis, considering whether or not to offer ECV to Lorraine. 4.2.2. Expert Evidence[46]In the late 1980’s, it seems plain that ECV was still something of a controversial technique. I was referred to one textbook which set out some of the difficulties, Dewhurst’s Textbook of Obstetrics and Gynaecology for Postgraduates, 4th Edition, 1986. But within two years, its positive benefits were stressed more plainly in Principles of Obstetrics by Professor Brian M Hibbard, (1988). In the section on ECV, the author says:
“The place of cephalic version [ECV] by transabdominal manipulation in the management of breech presentation is controversial but at a time when Caesarean section is being used with increasing frequency the role of external version needs reappraisal. The benefits of successful version are that the special risks associated with breech delivery in Caesarean section are illuminated. This may be important in circumstances where optimal facilities for management of breech labour are not available or if cephalopelvic disproportion are suspected. The potential risks of the procedure, which all increase if general anaesthesia is used, are: (1) Stimulation of premature labour, (2) Premature rupture of the membranes, (3) Abruption of the placenta, (4) Cord entanglement; (5) Spontaneous reversion to breech presentation may occur and repeated version will increase the risks, (6) Foeto maternal transfusion. Thus, no clear cut indications for version can be defined and an individual decision is required in each case depending on clinical circumstances and local facilities. For example, a breech delivery, following a normal pregnancy, in a fully equipped obstetric unit with 24 hour immediate consultant obstetric and anaesthetic cover could be as safe as, if not safer than, performing versions, whereas in a remote area with limited resources, where skilled staff might not be constantly available, version could be safer than vaginal breech delivery or Caesarean section.”

The potential risks of the procedure, which all increase if general anaesthesia is used, are:

[47]Mr Tuffnell agreed that this passage demonstrated that ECV was a “reasonable; technique to consider”. As to what was meant by “clinical circumstances” and “local facilities”, Mr Tuffnell said that the clinical circumstances would include the history of the individual and the nature of the pregnancy; and the local facilities would be a consideration of the unit and whether or not there were personnel who were skilled in doing it.[48]I accept this evidence: what determined whether or not ECV would be performed should have been a consideration of both of these broad factors. I also accept Mr Tuffnell’s admission that ECV helped to avoid two risks - vaginal breech and Caesarean section - and therefore, even though there were concerns about the safety of ECV, it was something that should be considered in each case. In consequence I reject the submission made by Mr Miller QC at paragraph 4.6 of his final submission that Professor Hibbard was not suggesting that ECV should be considered in each case, because otherwise the sentence starting “for example…” would have no force. I disagree: Professor Hibbard was just giving an example of a situation in which ECV might be considered and then rejected on its merits.[49]Moreover, the relative caution expressed in Dewhurst, and still discernable in Hibbard, was not shared by other textbooks of the time. In Turnbull’s Obstetrics (1989) the author said “if by 37 weeks the mal-presentation persists, external cephalic version [ECV] should be attempted.” Mr Tuffnell accepted that that was ‘bold, direct and simple’. He accepted that that was reasonable advice. He also said that, although he considered ECV to be difficult and painful, that was not suggested here.[50]In Effective Care in Pregnancy and Childbirth (first published in 1989 by OUP with a foreword by Cochrane) there is a lengthy section on ECV which stressed “the wide variation of opinion on the usefulness” of the procedure. This was a detailed and evidence-based survey. In the section dealing with ECV at term, at Table 42.12, the percentage rates for a successful ECV and for a cephalic birth, were very high (all but one over 65%). The section concluded:
“External cephalic version for breech presentation at term substantially reduces the incidents of breech birth and Caesarean section. Appropriate selection surveillance is important to ensure an acceptably low complication rate.”
[51]Mr Clements was adamant that the Effective Care publication revolutionised attitudes towards ECV and that from this time on it had become an important tool in dealing with breeches. He said:
“There was a debate about ECV. Some thought it dangerous. But that changed when Effective Care was published. This trumpeted by the NHS. The database had been prepared for years…there was clear evidence that ECV was safe and effective. So all the irrational fears should have been abolished.”
[52]In his conclusion as to the importance of Effective Care and its promotion of ECV, Mr Clements’ opinion was, on analysis, supported by Mr MacKay himself. He agreed that it was a most significant development in obstetrics and was important. Mr MacKay was certain that he had read it. This made Mr Tuffnell’s evidence, which was rather dismissive of Effective Care, difficult to accept. Mr Tuffnell said that it was not the document that people went to first, although he agreed that he could not point to any opposing view in any of the other publications. Moreover he did accept that the work did have an impact on expectation, and that there was now a higher level of evidence about its benefits. He also agreed that a reasonable interpretation on the evidence set out in Effective Care was that ECV reduced both breech births and Caesarean sections.[53]It is appropriate to refer to just two other subsequent documents in relation to ECV. There was a document referred to as the Canadian Consensus on Breech Management at Term, published in 1994, which lavishly praised the various trials (including those referred to in Effective Care) that showed that ECV was safe, describing it as “the most powerful and persuasive in all the published breech literature”. I considered that Mr Tuffnell was rather mealy-mouthed about this document, given its overwhelming endorsement of ECV. I do not accept his interpretation that the document was somehow saying that ECV was not a routine procedure and needed to be encouraged.[54]There was also Mr Clements’ own publication, in 2001, entitled Risk Management and Litigation in Obstetrics and Gynaecology. This also referred to ECV as a useful tool, although this cited a lower success rate of 40%. Mr Clements explained that that was because of the wide range of samples taken. His view was that, because of the factors referred to at paragraph 44 above, the ECV here would have been successful.[55]Mr Tuffnell took a different view. His suggestion was that the literature was not as one-sided as Mr Clements said. But, for the reasons given above, I reject that interpretation. It seems to me that the literature, from 1988 onwards, does indeed all point one way: that ECV needed at least to be considered in every case of breech.[56]Mr Tuffnell’s other point was that ECV needed trained staff and that, in 1992, it was not unreasonable for a smallish hospital such as this, not to have anyone who could perform it. He agreed that there would be between forty and sixty breech presentations a year and that there might be half of those where there were contra-indications that made ECV inappropriate. This left around twenty five a year where ECV might be appropriate. He then said that that would mean that each consultant would only do about six and that it was not worth their while doing the training for such a small number.[57]In my view, that was an inappropriate response to the literature. The literature made plain that ECV was to be considered in each case. Accordingly, by 1992, I find that at least one of the consultants should have been familiar with and capable of performing the ECV technique. It was clear from Mr MacKay’s evidence that this did not happen because it was not something that the hospital offered. If he had considered it, he or one of his colleagues would have been trained to perform it. 4.2.3. Analysis[58]I am in no doubt that Lorraine should have been offered ECV and that the failure to offer her that alternative was a breach of the defendant’s duty to her. There are a number of reasons for that.[59]First, it is clear that, at least from 1988 onwards, Hibbard, and particularly the Effective Care publication, had recommended ECV, at least as an option which could no longer be ignored. It was agreed that this was an important document which Mr MacKay said that he had read.[60]Secondly, I note that even the more cautious Hibbard book (paragraph 46 above), recommended that, although no clear-cut indications for ECV could be defined, “an individual decision is required in each case”. No individual decision was made here because ECV was simply not something that Mr MacKay or his colleagues offered.[61]Thirdly, Turnbull said in unequivocal terms, if the baby was a breech presentation, “ECV should be offered”. What, it might be asked rhetorically, could be clearer than that? Accordingly, I accept paragraph 44 of Mr Grime QC’s final submissions, that to ignore the clear evidence about ECV available from 1988/1989 (as I have found Mr MacKay did) was a stance that did not stand up to logical analysis. It was, in the words of Sachs LJ in Hucks v Cole [1993] 4 Med LR 393, “a residual adherence to out-of-date ideas.”[62]Fourthly, I accept Mr Clements’ evidence that these would have been near-ideal conditions for ECV. Lorraine had had a baby before. Jackson was relatively small at 2.5kg. There was a good quantity of liquor. Jackson was flexed, so as to make the turning easier. The shortness of the cord was not a factor that anyone knew or should have known about before the birth, so could not be a reason not to offer ECV.[63]Fifthly, I was completely unpersuaded by Mr MacKay’s justification as to why ECV was not even offered as an option. He said that further research was required: that, as he put it, “the whole process was evolving”, and that they had decided not to offer ECV “until further evidence became available”. In my view, that was an unjustified stance. Research is almost always ongoing into clinical techniques, in order to improve them. The question is when a particular process or technique passes a tipping point, and goes from being experimental to being established. It is clear that ECV passed that tipping point on the publication of Effective Care and the publication of Turnbull, both in 1989. As Mr MacKay himself accepted, in 1992 there was nothing more reliable than Effective Care at that time.[64]On the same topic, Mr MacKay made a number of other negative points about ECV which were equally unpersuasive. He sought to suggest that some of the success data quoted in the research for Effective Care was less than 66%. He was right about that: see the table at paragraph 68 below. Against that, however, there were numerous scores that were higher than 66%. Mr MacKay was not adopting a balanced view. Furthermore, his reference to the risk of dropping of foetal heart rates during ECV was not borne out by the literature (which made it plain that this was generally temporary) and was in any event somewhat hollow, given the circumstances that occurred here, and the 40 minutes of low heart rate that Jackson suffered during labour. Mr MacKay also referred to the haemorrhaging of the placenta but he did not know how often that happened and was entirely reliant on other people’s research.[65]Finally there was Mr Tuffnell’s view that there was an absence of expert staff to perform ECV and that that was not unreasonable in 1992. For the reasons that I have set out in paragraphs 56 and 57 above, I consider that approach to be unreasonable. The literature was so strongly in favour of the consideration of ECV in every case that, by 1992, it was a technique that the hospital needed to offer. Even if it was only appropriate in twenty five cases a year; that was sufficient to warrant at least one of the consultants learning the technique. There was no good reason for that not to happen: Mr MacKay’s blanket disinterest in the technique was unjustified.[66]For all these reasons, the answer to Issue 2 is that, at term, Lorraine should have been offered ECV. It is clear from her evidence about the other suggestion as to turning in labour that she would have agreed to that procedure. From a clinical point of view, there was nothing to render ECV a particular risk. She should have been advised to have it performed and I find that, on the balance of probabilities she would have accepted that advice. The defendant was in breach of duty in not offering ECV to her. 4.3. Issue 3: If ECV had been properly attempted at term (38-40 weeks) at the hospital, what is the likelihood, in percentage terms, that it would have succeeded?[67]As I have noted above, one of the reasons why I consider that the ECV option should have been offered was because, on the basis of what the defendant’s staff knew or ought to have known about Lorraine and her pregnancy in July 1992, they should have concluded that there was a good prospect that ECV would have been successful (see paragraphs 44 and 45 above).[68]The good prospect of success was borne out by the wider statistics. The percentages in Tables 42.11 and 42.12 of the Effective Care document are as follows:
“Table 42.11 Fetal mortality in reported series of external cephalic version at term using nitrous oxide or general anaesthesia Authors No. of patients Successful ECV Cephalic at birth Fetal deaths Stling end Muller-Holve (1975) 57 45(75%) 40/54(74%) 0 Berg and Kunzc (1977) 10 7(70%) 7 (70%) 1 Muller-Holve (1979)* 407 252(62%) - 3 Pluta et al. (1981) 508 268 (53%) 268 (53%) 0 Total 982 570 (58%) 315/572 (55%) 4 (0.4%) * Abstracted from literature review Table 42.12 Fetal mortality in reported series of external cephalic version at term without nitrous oxide or general anaesthesia Authors No. of patients Successful ECV Cephalic at birth Fetal deaths Muller-Holve (1979) 30 21 (70%) - 0 Fall and Nillson (1979) 53 37 (70%) 38 (72%) 0 Fianu and Vaclavinkova (1979) 74 48 (65%) 41 (55%) 0 Brocks et al. (1984) 74 30 (41%) 34 (46%) 0 Stine et al. (1985)* 148 108 (73%) 95/142 (67%) 0 Dyson et al. (1986) 158 122 (77%) 122 (77%) 0 Hofmeyr et al, (1986)* 80 62 (78%) 62 (78%) 0 Morrisen et al, (1986) 304 207 (68%) 201 (66%) 0 Rabinovici et al. (1986) 58 39(67%) 40 (69%) 0 Total 979 674 (69%) 633/943 (67%) 0 * Cases from earlier randomized trials included”
[69]That data suggests that, on any view, the chances of success were greater than 50%. Here, because of the particular circumstances already noted, the chances of success might be thought to be higher still. Even if one takes into account the 40% referred to in Mr Clements’ book (paragraph 54 above), the particular circumstances here would still lead to a conclusion that, viewed prospectively, ECV had a better than even chance of success.[70]Mr Clements was adamant that ECV would have been successful, saying at one point that he had no doubt about it. That seemed to me to put it too high. But I did not understand Mr Tuffnell to dispute that, prospectively, Lorraine would have been a good candidate for ECV. However, Issue 3 is not concerned with whether ECV should have been performed (I have found that it should, see above) but whether, on the balance of probabilities, ECV would have been successful: whether the foetus would have been turned and subsequently been born in the natural position. Of course, the reasons why Lorraine was a good prospective candidate for ECV, and the general statistics, are relevant to that question too. But there is another critical factor, and one which I find that Mr Clements completely overlooked.[71]It was put to him in cross-examination that the umbilical cord was abnormally short at twelve inches, and was in any event wrapped three times tightly around Jackson’s neck. Accordingly, it was suggested to Mr Clements, that in consequence, any ECV would almost certainly not have been successful. Mr Clements’ answer was to say that that was not a reason not to attempt ECV, because nobody knew about the short cord until Jackson was born. That of course is true, but it missed the point of Mr Miller QC’s question, which went, not to whether or not it should have been attempted, but whether or not it would have succeeded. The point being put to Mr Clements, which he wholly failed to answer, was that, with a short cord, which was in any event tightly wound round Jackson’s neck, ECV could have been attempted, but it would not have worked.[72]This was graphically explained by Mr Tuffnell at the end of his cross-examination, and then immediately taken up by Mr Miller QC in re-examination. Mr Tuffnell agreed that, for all the reasons set out in paragraphs 44 and 45 above, Lorraine was a favourable candidate for ECV. But he went on to say that, because of the shortness of the cord, the baby would not have turned. The cord was so short that it would have been impossible to move the baby very far. ECV involves turning the baby in a movement not unlike a forward roll (or, if appropriate, a backward roll), with the other end of the cord attached to the placenta. Because the cord was short and wrapped around Jackson’s neck, Mr Tuffnell said it was “very unlikely that this baby would have turned”. On analysis, there was no answer in the evidence to that clear and straightforward conclusion. This point is then made in the last bullet point in paragraph 4.10 of Mr Miller QC’s final submissions, and its importance is re-emphasised in paragraph 4.11 of the same document (where he submits that this evidence “suggests that there would have been no chance [of ECV working]”.[73]I note that paragraphs 50 and 51 of Mr Grime QC’s final submissions endeavour to address the point about the cord being wrapped round the baby’s neck: he submits that there is no evidence as to when that happened. But that is in truth a point against the claimant, because it would have been for the claimant to show that the cord, on the balance of probabilities, was not wrapped round the baby’s neck at the time that ECV should have been performed, thereby (on this assumption) making the ECV more likely to have been successful. In addition, and even more importantly, Mr Grime QC’s final submissions do not address the incontrovertible evidence that the cord was abnormally short. That was the principal reason which Mr Tuffnell relied on to say that ECV would not have been successful and, as already noted, it is that point to which I find there was never any satisfactory answer.[74]Accordingly, on the evidence before me, I am bound to find that, although ECV should have been performed at term at the hospital, it is much more likely than not that it would have been unsuccessful. The foetus would not have been successfully turned because of the shortness of the cord and the fact that it was wrapped around the baby’s neck. 4.4. Issue 4: Was it reasonable to have allowed the pregnancy to go to full term, without ECV having been attempted, in anticipation of a vaginal breech delivery?[75]It follows, for all the reasons set out above, that I consider that it was not reasonable to allow the pregnancy to go to full term without ECV having been attempted. However, had it been attempted, it would have had a considerably less than evens chance of success. On the balance of probabilities, vaginal breech delivery or a Caesarean section could not have been avoided. The ECV element of the claimant’s case fails for causation reasons.[5]THE ARRANGEMENTS FOR THE TRIAL OF LABOUR/BREECH 5.1. Issue 5: If it was reasonable for the pregnancy to have proceeded to full term, in anticipation of a vaginal breech delivery, were the staffing arrangements at South Tyneside District Hospital such that labour should have been induced at term, to ensure that the baby was delivered during the working day? 5.1.1. Introduction[76]There are two separate elements involved in this Issue. The first is whether the baby should have been induced at term and the second is whether the ‘trial of labour’ ought to have taken place in a fully controlled and fully staffed environment. I deal with each of those elements in turn below. I reiterate that it is unnecessary for me to address in detail Mr Clements’ point about a two/three-tier system based on the fact that Dr Miller was only an acting Registrar. I find that, although that was her title, she was doing the job of Registrar with an SHO under her and a consultant above. Moreover, there is nothing in the point that she was unable to carry out a vaginal breech birth on her own and required Mr MacKay to deliver the baby, because Mr MacKay made plain that he would have done that even if she had been a full Registrar. In any event, the system at the hospital worked because Mr MacKay who was called at around 6:00am, and was there by 6:20am, well within the 30 minute period accepted by the Royal College of Gynaecologists as being reasonable. Mr Clements’ figure of 15 minutes gave the impression of having been plucked out of the air: certainly, no guidance or other document was produced in support of it. 5.1.2. Induction[77]Mr Clements said that Lorraine should have been induced at term. There were, he said, two reasons for this: the danger of allowing a breech baby to remain in the womb beyond term; and the need to induce the baby at a prearranged time so that the baby could be born during the working day when the hospital was fully staffed.[78]As to the first issue, he said that Lorraine should not have been left beyond 40 weeks because of the risk of perinatal mortality which increases after 42 weeks, which meant (he said) that the hospital should have induced after 41 weeks in any event. In addition, he said that, as each day went by, the baby’s head was getting bigger all the time and that would only increase the difficulties of the breech birth.[79]Consideration was given to the literature on the subject. Page 563 of Hibbard said:
“Most patients who have a breech presentation start in labour spontaneously. Any case for induction of labour is largely empirical and based on imprecise factors. No convincing case has been made for preterm induction. After term, because of the increased hazard to the foetus, induction of labour may be considered, having first confirmed the maturity and checked that no other abnormality is present.”
When this passage was put to Mr Clements in cross-examination, on the basis that it was advising against induction of a breech presentation, Mr Clements disagreed, saying that he read it as advising that it was “something that was to be considered”.[80]Myles, the other text book considered in oral evidence, recorded:
“When the breech is presenting, there is a possibility of a need for Caesarean section. For this reason and because of the risk to the foetus, labour should take place in a consultant obstetric unit. Labour is sometimes induced after 38 weeks gestation in order to deliver the foetus before it becomes too large or the skull too ossified but some obstetricians believe that spontaneous onset of labour is safer.”
When this passage was put to Mr Clements he agreed that spontaneous labour was safer but he said “there has to be a limit as to how long you can wait.” That is self-evident: the question was how long the wait should be. Further, Mr Clements’ own book also reiterated that spontaneous labour was greatly to be preferred. As to that passage, Mr Clements said:
“There are circumstances where it is preferable. As with all these things you have to achieve a balance. You don’t just make an observation.”
[81]Mr Tuffnell referred to the literature noted above and said that the widespread view was that induction for persistent breech presentation was only justified on obstetric or medical grounds, and the departure from that view was not justified in this case. And although Mr Grime QC referred to other textbooks in his final submissions at paragraph 63, they also appear to stress that induction will only occur if “it is in the patient’s best interests” which again seems to emphasise that a particular reason was at that time required to justify induction in any breech case. 5.1.3. Analysis Re: Induction[82]In my view, some aspects of Lorraine’s care with regard to her possible induction were less than satisfactory. First, I note that it does not appear that, at any time, any arrangements were made for induction, despite the fact that her last appointment occurred when she was at term plus 6 days. Even Mr Tuffnell expressed his surprise at this, saying that making such an arrangement would be common once the baby was a week overdue. Second, it does not appear that Mr MacKay had ever induced a breech baby. When he was asked whether there was anything in Lorraine’s case that was a contra indication (i.e. something in favour of induction) he said:
“I didn’t do it anyway. So there is no point in considering that.”
Rather like the ECV procedure, Mr MacKay’s blinkered view was plainly open to criticism.[83]However, I have to have regard to the state of medical knowledge as it was in 1992. In my judgment, the literature summarised in Section 5.1.2 above makes plain that, as Mr Tuffnell observed, induction would - at least as a general rule - only be performed if it was justified on obstetric or medical grounds. There was no evidence in this case that induction before 6 August 1992 was justified on such grounds; there was no particular reason to induce. The allegedly critical weight of 3kg was not reached because Jackson was only 2.5kg at birth. There was no difficulty with ossification, or at least not one that was identified in the evidence. Of course, induction would have been justified two days later (on 8 August 1992), because Lorraine would then have been at 42 weeks but, just in time, her waters broke. Thus the need to induce never arose.[84]There was no evidence which supported Mr Clements’ view that 41 weeks, as opposed to 42 weeks, was the critical time for induction. There was no learning or paper which supported the figure of 41 weeks. I prefer Mr Tuffnell’s approach that the relevant time for induction was 42 weeks: by contrast, that figure was in accordance with the literature.[85]For those reasons, therefore, although I consider that some aspects of the defendant’s care of Lorraine in relation to the last stage of her pregnancy can be criticised, it cannot be said that the defendant’s staff were negligent for not inducing Jackson prior to 6 August 1992. Different doctors might have approached the problem differently, but in 1992 a responsible body of medical opinion (possibly even the majority view) would not have induced before that date. 5.1.4. Controlled Environment[86]The second issue was whether the birth should have taken place in a controlled environment. This was described by Mr Clements as being induction at the start of the day, thereby increasing the chances that the birth would have happened before 5:00pm with an anaesthetist and a consultant obstetrician in the building.[87]In many ways, the debate about the controlled environment was answered by the induction issue. For the reasons noted above, I have concluded that it was not negligent for Lorraine not to have been induced at term, or at any point before 6 August 1992. If Lorraine was not going to be induced, then there was no way in which the defendant could have guaranteed her labour in a controlled environment. Her labour would take place as and when her waters broke. Whilst Dewhurst advocates planning in advance, that is where “it is in the patient’s best interests to deliver her baby when all the facilities of an intensive care unit are available.” As already noted, there was no evidence that the defendant staff should have reached such a conclusion in the case of Lorraine. But in any event, I accept Mr Tuffnell’s evidence that, no matter when an induction has been arranged, it does not follow that the baby will be born in a controlled environment at a particular time of day. The birth might occur at any time because the mere fact of induction does not mean that the delivery will necessarily be quick. Again, no textbooks or other literature suggested to the contrary. I return to this topic under Section 5.2.2 below. 5.1.5. Staffing Arrangements[88]We know that, when Lorraine went into labour, there were experienced midwives present at the hospital to examine her and give first-stage advice. There was also an acting Registrar who was present to examine her within minutes of admission. The consultant obstetrician was there within 20 minutes of being called and the consultant anaesthetist shortly thereafter. No sensible criticism can be made of those staffing levels or response times. No evidence was placed before the court that these arrangements were in any way unusual or contrary to the guidance produced by the various medical bodies.[89]There was therefore no cogent evidence that different or more extensive staffing levels should have been provided. I have already dealt with (and rejected) the suggestion that Dr Miller should somehow not ‘count’ as a full Registrar. I have also rejected the criticism that, because Mr MacKay was 20 minutes away, this was a deficiency in staffing levels. On the contrary, the system operated at the hospital was the same as that used in hospitals up and down the country in 1992.[90]There was the faint suggestion that the staffing levels were inadequate because the anaesthetist took longer to arrive. I do not accept that criticism, but it is in any event irrelevant since, as Mr Miller QC rightly points out at paragraph 4.15 of his final submissions, by 6:20am it was known that a general anaesthetic was almost certainly not going to be necessary. By then, with full dilation achieved, and Lorraine in active second stage labour, a Caesarean section was probably not going to take place. 5.1.6. Conclusion on Issue 5[91]For all these reasons I conclude that the answer to Issue 5 is Yes: the staffing arrangements were satisfactory. As explained, I do not accept a number of the premises on which Issue 5 is based. 5.2. Issue 6: If labour should have been induced at term, to ensure that the baby was delivered during the working day, what were the likely consequences? 5.2.1. Relevance[92]I have already explained that it was not negligent for the labour not to have been induced at term. Accordingly, on my primary findings, Issue 6 does not arise. It is only if I am wrong about that that this Issue requires further consideration, as set out below. 5.2.2. Evidence[93]I put the causation question covered by Issue 6 to Mr Clements, so as to ensure that Mr Miller QC could cross-examine on any part of his answer (it not having featured clearly in Mr Clements’ evidence up to that point). Mr Clements said that, in these hypothetical circumstances, Lorraine would have been in a labour ward and would have been observed throughout. He said that, if the labour was induced at 8:00am, the likelihood was that the baby would have been born during working hours (i.e. within 8 or 10 hours of induction). A consultant and an anaesthetist would have been physically within the hospital. The theatre would have been nearby if anything had gone wrong. He said:
‘There would have been a readiness to intervene. Everybody would have been focused on getting the baby out. It would have been a controlled environment’
. He expressed the view that this hypothetical scenario would have produced a quicker delivery compared to what actually happened and that therefore there would have been less risk of damage to Jackson.[94]Mr Tuffnell took a different view. Mr Tuffnell said that it was impossible to say that, if the baby had been induced at 8:00am that he would have been born within the following 8-10 hours. He said that most women who are induced do not deliver within 8-10 hours. He agreed that, in this hypothetical situation, senior staff would have been forewarned, but he did not think that this would have made a difference. He said it was impossible to say that the delivery would certainly (or even probably) have happened within 8-10 hours. Mr Tuffnell did agree that, if there had been an induction in a controlled environment, then the footling breech would have been identified immediately the membranes ruptured, and that in such circumstances the footling breech would have been identified slightly earlier, and in circumstances where Lorraine was in hospital.[95]Mr Tuffnell had a variety of other points in order to explain how it was impossible to say whether an induction would have made any difference to the speed of delivery. He said that there could have been no ‘guarantee’ that the mother would have gone into labour during office hours, even if she was induced. This was because the relevant drug, Prostaglandin, might have taken many hours to take effect. In any event, even if there was more staff available during the day, rather than very early in the morning, that ignored the fact that the day staff would have been doing other things and may well not have been available immediately. For example, the consultant obstetricians would have had obstetric and gynaecology clinics and the anaesthetists too would have had other duties. He rejected the suggestion that there was a duty consultant on the labour ward at all times.[96]Mr Tuffnell also rejected the suggestion that the bradycardia could have been managed/controlled quickly and more efficiently if the birth had been during the day. Since it seems likely that the bradycardia arose as a result of the shortness of the cord and the fact that it was wrapped three times around Jackson’s neck, he said that the problem would have occurred late in labour when the descent would have begun to stretch the cord. When that happened in fact, all the relevant staff were there and were prepared to deal with it as best they could. 5.2.3. Analysis/Conclusions[97]I accept Mr Tuffnell’s evidence, as set out above. Indeed, in my view, there was nothing really of substance to set against it. It cannot be said that, even if Jackson had been induced, and even if that induction had happened at the start of working day, it would probably (or even possibly) have made any significant difference to Lorraine’s labour and his birth. There was no cogent evidence to support such a case. Again, no medical literature supported it. The answer to Issue 6 is that there were no material consequences, even if labour had been induced. Nothing could have ensured that Jackson was delivered during the working day, and in any event delivery at that time would not have made any difference on the facts of this case.[98]For clarity, I should add that, in my view, there was nothing to say that the bradycardia would have been better managed or controlled on the hypothetical scenario put forward on behalf of the claimant. The likely cause of the bradycardia was the shortness of the cord and its being wound tightly round the baby’s neck three times. That would have been a particular problem relatively late in labour, whenever and in whatever circumstances it was happening.[6]CRITICISMS OF THE ACTUAL DELIVERY 6.1. Introduction[99]I have set out the facts of the delivery at paragraphs 13-26 above. This Section of the judgment takes each of the allegations and sees whether or not they are well-founded. Section 7 then deals with the causative effect of any breaches that I find. 6.2. The Original Examination[100]Mrs Ward examined Lorraine at about 5:45am. She discovered that there was a footling breech. In consequence she spoke to Dr Miller who came down in order to carry out her own examination. Until the penultimate day of the trial, it was alleged that midwife Ward should have made direct contact with Mr MacKay and Dr Roy so as to ensure that the obstetric consultant and anaesthetist were present straightaway. The argument was that, since this was a footling breech, Mrs Ward would have known that a Caesarean section was inevitable.[101]These points were put to Mrs Ward in her evidence. She agreed that it was likely now to be a Caesarean section. But she denied that she should have contacted Mr MacKay and Dr Roy. She said “it was up to the Registrar to assess the situation. She made that decision…it was not my decision to make. Although it was likely that we would go to theatre, it was not my role to contact the anaesthetist. I informed the senior midwife and the Registrar.”[102]When she came to give evidence, Mrs Tranter, the claimant’s expert midwife, said that although this explanation was evidence of a hierarchical structure, she did not feel that it was appropriate to maintain this criticism of Mrs Ward. As I indicated at the end of the evidence, I consider that this concession was rightly made. It was appropriate for the midwife to contact Dr Miller, the acting Registrar. It was Dr Miller’s decision as to whether or not to call in the obstetrician and the anaesthetist. Neither do I consider that to be excessively hierarchical: amongst other things, it would be for Dr Miller to check to see that Mrs Ward was right in the decision that she had reached about the footling breech.[103]Accordingly, no criticism can now be made for any of the events prior to around 6:00am, when the bradycardia developed. 6.3. Issue 7: Was there any delay in the midwife responding to the bradycardia which developed at around 6:00am?[104]As set out in paragraph 15 above, the most likely sequence of events was that Dr Miller carried out her vaginal examination at about 5:55am. Everyone is agreed that the bradycardia could not have started before that examination. Thus it seems that the bradycardia developed just after Dr Miller’s first vaginal examination, at around 6:00am. That is consistent with the CTG read-out.[105]Mrs Ward said that she was alerted to the change in heart rate by the sound. She said that Dr Miller was outside at the time the rate dropped. She noted the heart rate decline, and then increase, and then decline again. She agreed that she saw bradycardia, but she needed first to see if the heart responded once the relevant contraction was over. She explained why she would not act immediately on the first contraction. She had to wait a few minutes. Mrs Tranter accepted that there was at least a 3 minute rule of thumb before you confirmed bradycardia. On that basis, that gives an earliest possible time of about 6.03am when Mrs Ward should have alerted Dr Miller.[106]The evidence is that Mrs Ward went out to get Dr Miller, who was in the corridor outside, at around 6:06am. She agreed that, if bradycardia was established, she “did not want to lose a minute.”[107]In her report Mr Tranter said that the midwife should have gone to get Dr Miller earlier. Although she recorded that Mrs Ward did not actually get Dr Miller back into the room until 6:10am, because that was the time on Dr Miller’s note, it is clear that Dr Miller’s note at 6:10am was retrospective. As noted above, I am happy to rely on Mrs Ward’s own time of about 6:06am as being the time she told Dr Miller about the bradycardia. The question then becomes whether she should have alerted Dr Miller three minutes earlier (6.03am, not 6.06am).[108]In my view, given the approximate nature of these timings, such a small period of time (3 minutes) cannot give rise to a proper allegation of negligence. The timings which give rise to the period are too uncertain to support such an approach. Moreover, the three minute rule of thumb is just that: it is not a fixed period.[109]Further and in any event, it is important to stand back and look at the evidence in the round. Mrs Ward was an experienced midwife. She noted the bradycardia immediately. She waited, as everyone agreed she had to do, to see if it was a true bradycardia. She had to wait until the end of the relevant contraction. Thereafter, she went out to get Dr Miller. There was no evidence that she did anything else in the interim. I accept the submission at paragraph 4.25 of Mr Miller QC’s final submissions that “it is almost inconceivable that an experienced midwife would simply have watched a bradycardia for 8-10 minutes before summoning medical aid.” The suggestion to the contrary (paragraph 70(a) of Mr Grime QC’s final submissions) is based on treating the various timings as accurate to the second, rather than as approximate. In my view that is unrealistic and contrary to the evidence. In those circumstances, it is impossible to say that there was any period of delay between the onset of the bradycardia and the notification to Dr Miller. Any discrepancy is explained by the approximate nature of the timings. Accordingly, the answer to Issue 7 is No. 6.4. Issues 8 and 9: When should Lorraine have been taken to theatre?[110]Issue 8 is in these terms:
“Should the mother have been taken to theatre: (1) After thee midwife’s examination or 5:45am? (2) Immediately after Dr Miller’s first vaginal examination? (3) Immediately after Dr Miller’s second vaginal examination at or around 6:10am?”
[111]On the claimant’s case, so the argument goes, this is important because, if Lorraine had been taken to theatre before full dilation at 6:20am, no time would have been lost transferring her to theatre thereafter. However, I also note that Mr Grime QC properly accepts (at paragraph 70 (b) of his final submissions) that it is difficult to answer these questions in any event because of the paucity of the medical notes.[112]In my view, the answer to Issue 8(1) is plainly No. Since it is agreed that the midwife acted properly in contacting Dr Miller at 5:45am after her first examination, there is no way the midwife should have ordered Lorraine to go to theatre at that point.[113]After Dr Miller’s first vaginal examination of Lorraine at around 6:00am, the decision could have been taken to send her to theatre. After all, it was a footling breech and therefore a Caesarean section was going to be required. But it cannot be said that Dr Miller was in breach of duty because she did not order a transfer at that point. She was waiting for Mr MacKay to arrive, and would not have thought that it would have made any difference when Lorraine was transferred to the theatre. That was also Mr Tuffnell’s view. I accept that approach: it was reasonable in all the circumstances. The answer to Issue 8(2) is therefore No, and the same reasoning must also provide a negative answer to Issue 8(3). In my judgment, there was no reason for anyone to direct the transfer of Lorraine to the theatre at any time prior to the arrival of Mr MacKay.[114]Further in respect of Issue 8 generally, I note the evidence that the High Risk delivery room was more comfortable for a patient in Lorraine’s condition than the theatre, in particular because the bed was wider. Ms Boddy gave unchallenged evidence that the practice was to leave patients in the High Risk delivery room until they had been examined by the consultant.[115]Issue 9 is in these terms:
“Should the mother have been transferred to theatre before the arrival of Mr MacKay (6:20am) and should “organised pushing” have been started on arrival in theatre?”
[116]It follows from what I have said above that I do not agree that Lorraine should have been transferred to theatre before the arrival of Mr MacKay. I deal with organised pushing as a separate subject in Section 6.6 below. As to the difference that might have arisen from any earlier transfer, I deal with that in Section 7 below.[117]I ought to deal expressly with paragraph 69 of Mr Grime QC’s final submissions. There he notes that the obstetric experts’ joint statement agrees that Lorraine should have been in theatre before 6:20am. This was not a matter that was referred to during the oral evidence and I am bound to say that it is completely at odds with the views expressed by Mr Tuffnell and others during the trial. It is also contrary to Ms Boddy’s evidence (paragraph 114 above). There was nothing which supported such a view. For the reasons that I have given, I do not accept that in some way the defendant’s staff were negligent for failing to organise a transfer before 6:20am and the arrival of Mr Mackay. 6.5. Issue 10: Should the mother have been transferred from the High Risk delivery room at all, or should “organised pushing” have commenced and delivery been effected in that room?[118]This Issue gives rise to two points: whether Lorraine should have been transferred to the theatre at all, and what, if anything, is the relevance of organised pushing. As already noted, I deal with the later concept in Section 6.6 below.[119]As to the transfer to the theatre, it was not entirely clear why Lorraine was transferred to the theatre in circumstances where, following full dilation, a Caesarean section was not going to be carried out. But I accept that this was an emergency and that caution dictated that transfer to the theatre was probably the appropriate course. I note that in Myles, it states that “failure of a breech to descend onto the perineum in the second stage despite good contractions may indicate the need for Caesarean section.” Accordingly, out of an abundance of caution, a transfer to the theatre was probably justified in this case.[120]Moreover, in this case, the delivery room was just a few yards from the theatre. So any transfer would have had a negligible effect, unless the claimant could demonstrate that, in some way, the transfer materially interfered with and slowed down the process of labour. It was in that context that, somewhat late in the day, the claimant’s case focused on the assertion that the transfer to theatre interfered with the ‘organised pushing’ that could otherwise have been performed. I therefore turn to deal with that allegation. 6.6. Organised Pushing[121]The concept of ‘organised pushing’ was the subject of debate between Mr Clements and Mr Tuffnell and, in particular, between Mrs Tranter and Ms McConville, the midwifery experts. There were two principal issues: whether organised pushing was a good idea at all and, even if it was, whether it would have made any difference in this case.[122]Organised pushing was said to mean the mother sitting up with her legs raised and with one or two midwives encouraging her to push by taking a breath, holding it and then pushing out at the same time as exhaling.[123]Ms McConville referred to some guidance notes from the Royal College of Nursing (“Evidence Based Guidelines for Midwifery-led Care in Labour”). The notes appeared to relate to all second stage labour. They suggested that organised or directed pushing was not something which should be encouraged. Indeed, the following passages might be regarded as rather critical of what they refer to as ‘directed pushing’:
“there is no good evidence to justify the use of directed pushing using the Valsalva manoeuvre (“take a deep breath in, hold it and push”) and there are many papers which consider foetal compromise associated with this practice because of the reduction in maternal arterial pressure and that oxygenation of maternal blood…there is also some evidence that coached pushing may weaken pelvic floor function…there is no evidence to suggest that women need to be taught how and when to push…the midwife should encourage the woman to follow the directives of her own body rather than to seek direction from a carer.”
[124]These passages were plainly contrary to the claimant’s case and one of the reasons why Ms McConville was of the view that organised pushing was not to be encouraged. That doubtless explained why, at paragraph 70(c) of his final submissions, Mr Grime QC argued (for the first time) that the court should have no regard to the document, because it was not something that had arisen during the experts’ meetings and was not referred to in Ms McConville’s report.[125]I consider that criticism to be unjust. The issue of organised and directed pushing was not referred to at all in Mrs Tranter’s report, which is where I would have expected to find it, since on this analysis it is central to this part of the claimant’s case. Instead, this issue, and its potential importance, only emerged on the claimant’s side very late in the day (and originally through Mr Clements). Ms McConville was therefore entitled to refer to the guidelines document in support of her conclusions that directed or organised pushing was not to be encouraged, and had little if any positive effect.[126]It is noteworthy that Mrs Tranter was unable to point to any literature which supported her contrary view. Indeed, Mr Miller QC’s analysis of some of the other literature, in paragraph 4.33 of his final submissions, shows some support for the guidelines, in particular the view that pushing too early may lead to the prolapse of the cord.[127]The guidelines were also relevant to the issue as to whether organised pushing would have made any difference in this case. They suggest that organised pushing was unlikely to have made any difference. In any event, the medical notes referred to Lorraine as “pushing” from the moment that she was fully dilated at 6:20am. Witnesses spoke of her being in good labour so that her pushing was strong and involuntary. Mrs McConville said, whether there was organised pushing or not, Lorraine “remained the centre of attention”. And Mr Tuffnell memorably described her as “like a runaway train”.[128]Accordingly, although Lorraine was not the subject of directed or organised pushing, she was in full second stage labour and pushing anyway. There was no cogent evidence to lead me to conclude that, if organised pushing had taken place, it would have made any difference to the outcome.[129]The highest that it can be put on behalf of the claimant is that the midwives would not have encouraged Lorraine to push during the period when she was transferred the short distance that she was moved on the trolley to the theatre, so that the transfer would have interrupted/delayed the delivery. All of the evidence, including the guidelines noted above, indicate that (even if this had happened, and there was nothing to say that there had been any interruption/delay) this would have made no difference. The natural contractions were happening anyway and could not be stopped.[130]Accordingly, in relation to Issues 9 and 10, I do not accept that organised pushing should have been undertaken and, if there had been organised pushing, I do not accept that, but for the transfer, it would have led to an earlier delivery. There was no evidence to sustain either conclusion. 6.7. Issue 11: If there had been earlier pushing in either the theatre or the High Risk delivery room, would this have led to earlier delivery, and if so, how much earlier?[131]For the reasons that I have set out, there could have been no earlier pushing than there actually was and it has not been shown that the delivery would have been any earlier than it actually was. 6.8. Conclusions in Respect of Actual Delivery[132]In my view, no cogent criticism can be made of the actual delivery. It was an emergency and a fraught 40 minutes once the bradycardia started. I do not believe that any of the individual components of that 40 minutes can be criticised or in some way speeded up, and I do not believe that anything could be said to have been required to happen earlier than it did.[133]I would add this. What happened between 5:45am and 6:40am on 6 August 1992 was, in many ways, illustrative of the risks inherent in a ‘trial of labour’. Those risks are now dealt with in a different way, because nowadays there are many more Caesarean sections for breech presentation. But as I said at the outset, these events happened over 23 years ago, and it is no part of the claimant’s case that, based on the extent of medical knowledge at that time, she should have been advised to have a Caesarean and not a trial of labour.[7]CAUSATION: DAMAGE 7.1. Issue 12: What is the cause of the claimant’s mild cerebral palsy[134]The cause of the claimant’s mild cerebral palsy was hypoxic ischemia due to the compression of the cord and the strangulation during labour. It has not shown up on the MRI scans because it is, happily, mild. Thus the absence of radiological evidence of damage does not preclude hypoxic ischemia as the cause. 7.2. Issue 13: Does the absence of radiological evidence of damage preclude hypoxic ischemia being the cause?[135]It is agreed that the answer to this question is No. The absence of radiological evidence of damage demonstrates that the hypoxic ischaemic insult must have been at the shorter end of the spectrum, because otherwise it would have been discernable from the radiological evidence. Of course, looked at more positively, the absence of radiological evidence is a further demonstration that Jackson’s condition was so much better than it might have been. 7.3. Issue 14: Over what period did the bradycardia represent damaging hypoxic ischemia?[136]The causation experts were agreed that the bradycardia could not have been damaging the foetus for the entirety of the 40 minutes that it lasted. They were agreed that the damage was likely to have begun at 6:20am, when Lorraine was fully dilated. They were also agreed that there was a period of about 10 minutes when the body could tolerate the hypoxic ischemia, such that other compensatory functions would take over. They were agreed that after about 10 minutes, those compensatory functions would fail, and significant damage would occur.[137]On that basis, all the experts were agreed that the damage would have been done at the end of the birth. In the round, they were agreed that the damage would have occurred over a period of not less than 5 minutes and not more than 10 minutes. Thus, on the facts, the damage would have been done between about 6:30am and about 6:40am, when Jackson was delivered.[138]If it could be shown, on the balance of probabilities, that the defendant’s staff were in breach of duty during the delivery (Section 6 above), and that that breach or breaches materially contributed to any delay in the delivery then, provided that the delay was material, there would be a claim against the defendant. In my view, Mr Grime QC was right to concentrate on 6:30am as being the time for the hypothetical delivery for this case to work. Anything beyond that and, because of the approximations used as the timings, it would be very difficult to say that any of the alleged acts and omissions caused any relevant delay.[139]In my view, for the reasons set out in Section 6 above, there was no material breach. But if I am wrong about that, and there had been a breach or breaches during the delivery, I do not consider that it/they caused any significant delay. To put the point another way, none of the alleged breaches would have resulted in any materially earlier delivery time. The second stage labour took approximately 20 minutes from full dilation to delivery. I do not believe on the evidence that, whatever had been done differently, this period could have been materially improved upon. I do not believe that there was anything that could reasonably have been done to ensure that Jackson was born no later than 6:30am that morning.[140]So let us assume that I am wrong in paragraph 117 above, and Lorraine should have been transferred to theatre before 6.20am, and that I am also wrong and that there should also have been a period of uninterrupted organised pushing thereafter. That would be the high watermark of the claimant’s case on liability arising out of the actual delivery. But on the evidence, it makes no difference on causation. It has not been shown that a period of organised pushing after 6.20am (uninterrupted by a transfer) would have made any material difference to the timing of the delivery. No inference that this would probably have been the case can be made in circumstances where, in my view, the weight of the evidence was plainly the other way.[141]At paragraph 71 of his final submissions, Mr Grime QC seeks to make a case, not hitherto highlighted, that injury occurred between 6:30am and 6:35am and that this was the relevant period of delay. In my view that was not made out by the expert evidence: the experts were unwilling to be any more specific than a period of not less than 5 minutes and not more than 10 minutes. The court cannot therefore create or agree more precise timings than those which had been agreed by the experts.[142]In one sense, however, what I regard as Mr Grime QC’s over-precision as to timings illustrates graphically the difficulties at the heart of the claimant’s case. The attempt in his final submissions to raise, for the first time, the purported significance of the time of 6:35am is not based on the expert evidence: rather, it is a tacit acceptance that a minute here or there which might be shaved off one or more of the elements of second stage labour may be the best that the claimant can do in terms of causation.[143]I accept that in cases of this sort the court should be “prepared to take a reasonably robust approach to causation”: see Roadrunner v Dean [2003] EWCA Civ. 1816 per Chadwick LJ at paragraph 29. I have also considered the other authorities referred to in Mr Grime QC’s final submissions at paragraphs 74-83, including Bailey v MoD [2008] EWCA Civ. 1183; Drake v Harbour [2008] EWCA Civ. 25; and Phethean-Hubble v Coles [2012] EWCA Civ. 349. But all of those cases were dealing with a different point, namely the alleged failure on the part of the claimant to show that the breach was causative of the injury. In each case the court concluded that, where a claimant had proved that the defendant had been negligent, and that loss had ensued which was of a kind likely to have resulted from such negligence, that would be enough for the court to infer that the loss probably was so caused, even if the claimant was unable to prove positively the precise mechanism.[144]But that approach is of no application here. Even assuming that the claimant had proved negligence at some point during the delivery process, this would have caused, at most, a modest delay or interruption to the delivery. The relevant inference cannot be drawn, because the court cannot say that the damage to Jackson was of a kind likely to result from such a modest delay or interruption. The damage to Jackson was the inevitable consequence of the short cord, the bradycardia and the cord being wrapped three times around his neck. It cannot be inferred that it was caused, or significantly contributed to, by the modest delay or interruption to which I have referred.[145]Thus, in this particular case, and unlike the causation cases to which I have referred, the claimant needed to establish, on the balance of probabilities, a proper causation mechanism. The claimant needed to establish that, as a result of the defendant’s negligence, the birth was delayed by more than 5 minutes and more likely around 10 minutes, and that that was (on the balance of probabilities) the cause of the damage to Jackson. Even if the claimant had made out negligence, he has not made out any case that, in consequence, the delivery would have been at least 5 minutes (and more likely 10 minutes) earlier. The evidence about organised pushing simply did not suggest that it would have made any temporal difference whatsoever. In those circumstances, therefore, a causation case, no matter how robust, has not been made out. 7.4. Issue 15: If it is found that delivery should have occurred at some earlier time, did the delay in delivery represent either the sole cause of the claimant’s injury or a more than negligible contribution to it?[146]For the reasons set out above, this Issue does not arise because I have not found that delivery should have occurred at some earlier time.[147]In any event, I consider that, on the evidence before me, this is an impossible question to answer. Even if I had concluded (which I do not) that organised pushing would have speeded up delivery, and even if I concluded (which I do not) that organised pushing was in some way delayed or interrupted as a result of the transfer to theatre, there is no evidence on which the court could safely quantify the amount of time lost. In particular, the court could not say that any such time lost was anything other than de minimis.[148]I note that although Mrs Tranter suggested that 10 minutes had been lost, a proposition first advanced at the experts without prejudice meeting, there was absolutely no evidence to support such a figure. Indeed I note that Mr Clements himself recognised that because, as a matter of fact, delivery was not imminent at 6:28am on the point of transfer to the theatre, it could not have been achieved by 6:30am.[149]Accordingly, on Mr Clements’ evidence, there was nothing to say that delivery could actually have been at any time faster than it actually was.[8]CONCLUSIONS[150]For the reasons set out in Section 4 above, I have concluded that Lorraine should have been offered ECV. However, I have also concluded that, had ECV been attempted in this case, it would not have been successful, principally because of the shortness of the cord.[151]For the reasons set out in Section 5 above, I consider that, although some criticisms could be made of Lorraine’s care prior to labour, I do not consider that the defendant was negligent in not inducing her prior to 6 August, or not arranging for her baby to be delivered within working hours. In any event, no such outcome could have been guaranteed.[152]For the reasons set out in Section 6 above, I find that none of the allegations of negligence in respect of the actual delivery have been made out. Moreover, even if any of them had ben proved, for the reasons set out in Section 7 above, I find that there is no evidence to suggest that the delivery of Jackson in this case would have been any faster, or that the delivery time would have been brought forward to any meaningful or significant extent.[153]Accordingly, for these reasons, this claim is dismissed.