ML (A Child) v Guy's And St Thomas' National Healthcare Foundation Trust [2018] EWHC 2010 (QB)

[2018] EWHC 2010 (QB)

Case No HQ15C01272

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/07/2018

Before

MR JUSTICE MARTIN SPENCER

Between

MLClaimant

Guy’s and St Thomas’Defendant

National Healthcare Foundation TrustDefendant

Mr Robert Glancy QC and Mr Richard Cartwright (instructed by Irwin Mitchell LLP) for Claimant

Mr Edward Bishop QC (instructed by Bevan Brittan LLP) for Defendant

Hearing Hearing dates: 14, 15, 16, 17 and 18 May 2018

Judgment Approved

Introduction

[1]The Claimant, ML brings this action for damages by his Litigation Friend and mother, SL arising out of the circumstances of his birth on 26 January 2010. In the minutes before his delivery, ML suffered an acute, profound hypoxic-ischaemic injury to his brain, continuing until his resuscitation about one minute after his delivery, which has left him with devastating brain damage and serious disability. He has dyskinetic quadriparetic cerebral palsy with impairment of gross and fine motor function and severe developmental delay. He is fed by gastrostomy tube and will always need 24-hour care. He has no prospect of independent living and his life expectancy is limited.

[2]By his order dated 5 September 2016, Master Roberts ordered the trial of a preliminary issue, namely liability and causation. This judgment arises out of the trial of that preliminary issue, which came before me on and from 14 May 2018. At the outset of the trial, I made an anonymity order to protect the interests of the Claimant and his family. For that reason, the Claimant shall be referred to as “ML”, his mother as “SL” and his father as “AL”.

[3]Also, at the start of the trial, I made an order by consent for disclosure of the unredacted versions of selected medical reports relating to other patients who had occupied the obstetric theatres shortly before the birth of the Claimant. As will appear later in this judgment, the disclosure of those records led to a considerable narrowing of the issues to be tried in this case.

The facts

[4]SL was born on 26 April 1976 and married AL on 23 February 2008. They had in fact met in 2002 and by the time of their marriage they had been trying for a baby for several years. They were referred to the fertility clinic at St Thomas’ Hospital in 2007 and underwent a cycle of IVF. Two embryos were implanted one of which successfully grew and that was ML. As SL explains in her witness statement she, AL and all her family were overjoyed at the news. SL wanted to make sure that nothing was left to chance concerning the well-being of her baby: thus she decided to have the baby at St Thomas’ Hospital rather than at her local hospital which she says had a terrible reputation:

“There was no way I was going to take any risks with our precious baby.”

It is clear that, when it came to ML’s welfare, SL and AL were “risk-averse”.

[5]The pregnancy went well. The gender of the baby was ascertained in advance and the parents had already decided on a name for him and were referring to him by name. The estimated date of delivery was 28 January 2010 and in anticipation SL’s mother and sister came to London from South Africa to support her through her labour.

[6]On 25 January 2010, at about midday, three days before her due date and therefore “at term”, SL experienced a “Spontaneous Rupture of Membranes” (“SROM”) and she attended the hospital birth centre (“HBC”) of Guy’s and St Thomas’ Hospital. She was seen by a midwife in the ante-natal day unit who confirmed SROM. A cardiotocographic (“CTG”) trace was started which was normal. Contractions were 1 in 20 and irregular and SL was draining large quantities of pink stained liquor. She was advised to return if, among other things, her waters turned yellow or pink and she was booked for augmented labour on 26 January 2010. It should be explained that where there has been a pre-labour SROM, there is a risk of ascending infection with consequent dangers for both mother and baby and therefore it is usual practice to induce labour after 24 hours.

[7]SL returned home but at about 11pm she noticed a yellow discharge and therefore called the hospital. Although the midwife to whom she spoke did not advise her to come in, she decided nevertheless to do so, the hospital being about an hour’s drive away. Again, this illustrates the risk-averse approach of the mother.

[8]SL was admitted to the HBC and her care was taken over by Midwife Blanca Rodrigo. A CTG was started, which was normal. At 03.45, SL was assessed by a senior obstetric registrar, Dr Victoria, who decided to start the induction with Syntocinon. At 04.45, a vaginal examination revealed that the cervical os was closed, soft, 1cm long and very posterior. Thick meconium was noted and Syntocinon was started.

[9]At 06.05, contractions were 1-2 in 10 (that is, between one and two contractions every ten minutes) and SL was asking for pain relief. At “6.10” she started to use Entonox. By 06.23, her contractions were 3 in 10 and the CTG was showing early decelerations of the fetal heart. At “6.30”, Midwife Rodrigo called for a doctor to review the trace.

[10]At “6.45” SL was seen by Dr Dagmar Krueger, an ST3 registrar, who noted the history and assessed the CTG. Beat to beat variability was greater than five, there were no accelerations, there were variable decelerations, early in onset, contractions were 3 in 10 and the trace was regarded as “suspicious”. Dr Krueger’s plan was for SL to change position and for her to review the CTG in 20 minutes and for the administration of Syntocinon to continue at the same level for the time being. Dr Krueger reassessed the CTG at “7.25” by when the decelerations had abated and the CTG was now reassuring. The plan was to increase Syntocinon if the contractions remained at only 3 in 10.

[11]At 07.50, Midwife Rodrigo reviewed the CTG which was noted to be normal. The plan was to carry out a vaginal examination at about 10.30.

[12]At 08.20, SL’s care was taken over by Midwife Abosede Kako-Are. Midwife Kako-Are noted that there was an intravenous infusion of Hartmann’s solution and Syntocinon in progress, that there was a CTG in progress (which was normal) and that SL was coping with contractions, using breathing exercises and a TENS machine. She noted:

“Small amount of thick meconium and blood-stained liquor draining on inco pad.”

[13]At “8.30”, Midwife Kako-Are carried out an assessment of the CTG trace which she assessed as suspicious. There were early decelerations present.

[14]At “09.15”, Midwife Kako-Are considered the trace again to be suspicious, with variable decelerations. There was then a prolonged deceleration down to 60 beats per minute. SL’s position was changed to the left lateral and the midwife called for help. In fact, the doctors were in the corridor, doing their ward round. They entered SL’s room at “9.20”.

[15]SL was seen by the consultant Mr Mascarenhas, the registrar Dr Christopoulos and the SHO Dr Krishnan. The CTG was assessed to be normal: although there were variable decelerations, these were for less than 50% of the contractions. The plan was to continue fluids, carry out a vaginal examination with or without the application of a fetal scalp electrode (“FSE”) in view of loss of contact using the abdominal transducers of the CTG and to review the CTG in 15 – 30 minutes.

[16]At 09.50, Dr Christopoulos carried out the vaginal examination. The station of the head was 2cm above the ischial spines, the cervix was 4cm dilated and the presentation was cephalic. An FSE was applied but was not functioning. Dr Christopoulos therefore used an ultrasound scanner to observe the fetal heart which was confirmed to be beating at a rate of 150 – 160. His plan was to keep monitoring using CTG with the abdominal transducer for the time being and to review the CTG in 30 minutes.

[17]At 10.05 there was what was described by Midwife Kako-Are in the notes as a prolonged deceleration to 53 beats per minute returning to the baseline in one minute. She used the buzzer to call for help and the SHO, Dr Krishnan, reviewed the CTG at 10.10. She confirmed that there had been a deep deceleration lasting 30 seconds and designated the CTG as “suspicious”. She suggested further review in 20 minutes and the need to reapply a FSE, noting that she would speak to the SpR, that is Dr Christopoulos.

[18]There is then, in the notes, a record of an attendance by the consultant, Mr Mascarenhas at a time which looks like “9.50”. This states:

“CTG review → 2? late decelerations Plan – epidural FBS ”

As the next note, by Midwife Kako-Are, was at 10.35, Mr Mascarenhas, in his witness statement, suggested that, despite the apparent time written down, this review by him must have been between 10.10 and 10.35, being sandwiched between notes made at those times. Plan – epidural FBS ”

Plan – epidural

[19]At 10.35, Midwife Kako-Are again reviewed the CTG trace and considered it to be pathological. She wanted the obstetric registrar, Mr Christopoulos, to review the trace and he came immediately at 10.40.

[20]This attendance at 10.40 by Dr Christopoulos is at the heart of this case. His note reads in full:

“C [contractions]: 4:10 strong/regular p/a [per abdomen] → 2/5 cephalic p/v → Cx [cervix] 8cm, OA, L + caput at spines No moulding CTG: BR [base rate]: 165, V [variability] < 5 x 30 mins A [accelerations]: nil D [decelerations]: atypical variable O [overall]: pathological FBS [Fetal blood sample] → pH: 7.28, BE [base excess]: -2.8 → epidural → r/v [review] CTG 1 hour → v/e [vaginal examination]: 2 hours → continue Syntocinon.”

Thus, having reviewed the position and in particular the CTG, Dr Christopoulos took a fetal blood sample in order to ascertain the baby’s oxygenation and level of acidosis. On the next page in the notes, there is the measurement report relating to the fetal blood sample, the operator being Midwife Kako-Are. The measurement report was printed out at 10.50. Thus, it appears likely that Dr Christopoulos’ initial examination including his abdominal and vaginal examinations and his consideration of the CTG trace took place between 10.40 and about 10.48. As part of his vaginal examination, he took the fetal blood sample which he then handed to Midwife Kako-Are who took it to the machine, which she confirmed was in another room, to be measured. Midwife Kako-Are then returned with the results and informed Dr Christopoulos of those results who then wrote them down in the note which he would have written at about 10.50, together with his plan. Those results were normal. The next note is a note of Midwife Kako-Are at 10.50 stating:

“[SL] having the urge to push, the room prepared for delivery. I went out to bleep the Obs anaesthetist, no resp and the MWIC [Midwife in Charge] Miatta Kparkra was informed and asked to answer the telephone if the anaesthetist respond to the bleep.” p/a [per abdomen] → 2/5 cephalic p/v → Cx [cervix] 8cm, OA, L + caput at spines No moulding CTG: BR [base rate]: 165, V [variability] < 5 x 30 mins A [accelerations]: nil D [decelerations]: atypical variable O [overall]: pathological FBS [Fetal blood sample] → pH: 7.28, BE [base excess]: -2.8 → epidural → r/v [review] CTG 1 hour → v/e [vaginal examination]: 2 hours → continue Syntocinon.”

→ v/e [vaginal examination]: 2 hours

[21]It is now agreed that there was some conversation between SL and Mr Christopoulos after the result of the fetal blood sample was known, about the possibility of a caesarean section. When asked, Midwife Kako-Are said that she had no knowledge of any such conversation and, had she done, she would have written something down about it. Given the high quality of Midwife Kako-Are’s notes, I have no doubt that this is true. It therefore seems to me likely, if not certain, that the conversation took place during the time that she had left the room to bleep the obstetric anaesthetist, who was needed to site the epidural, and after Dr Christopoulos had written his note at 10.50. That might explain (but not excuse) why there is no note of this conversation in the notes. I shall return to the request for a caesarean section and my findings in relation to that conversation later in this judgment.

[22]Before continuing the narrative, I should say something about the findings between 10.40 and 10.50. At “9.50”, SL’s cervix had been found by Dr Christopoulos to be 4cm dilated. Now, approximately an hour later, the cervix was 8cm dilated. 10cm dilatation is full dilatation and allows vaginal delivery of the baby. Thus, on any view, there had been good progress over the previous hour. Furthermore, Dr Christopoulos had found at “9.50” that the vertex was 2cm above the ischial spines. Now, the vertex was at the spines and so, in addition to dilatation of the cervix, there had been descent of the fetal head. The lowest that the fetal head can descend to before delivery is 3cm below the ischial spines. Thus, any reasonable assessment of the labour at that stage would have concluded that SL was making good progress towards vaginal delivery. The concern, however, related to the condition of the baby given that both Midwife Kako-Are and Dr Christopoulos considered the CTG trace to be pathological. That is why it was considered appropriate to obtain a fetal blood sample. The issue with a pathological CTG trace is whether the fetus is becoming significantly acidotic. If that happens, the baby is liable to suffer neurological injury as a result of oxygen deprivation to the brain. To take a fetal blood sample is an invasive test in that it involves inserting a tube into the mother’s vagina and then piercing the skull of the baby with a needle in order to extract fetal blood which can then be analysed. However, to take blood from the baby’s head gives direct information as to the state of acidosis and informs the obstetrician whether the CTG abnormalities betray a condition requiring immediate delivery, because the baby is severely acidotic, or not. In this case, the results of the fetal blood sample were wholly normal and reassuring. On that score, there was no need for the baby to be delivered which, at that stage, before full dilatation, could only be by caesarean section. It should also be mentioned that the plan for an epidural and Midwife Kako-Are’s immediate action in bleeping the obstetric anaesthetist indicates that the mother must have been in quite severe pain at that time, that she was not coping with the pain and needed the strongest form of pain relief available. With a rate of dilatation of 4 cm in the previous hour, the dilatation being driven by the strong regular contractions occurring four times in every ten minutes, it is perhaps not surprising that SL was in great pain at that stage.

[23]It is also interesting to note that Midwife Kako-Are had taken the step of preparing SL’s room for delivery at 10.50. Clearly, with the rate of dilatation and descent over the previous hour, Midwife Kako-Are was expecting full dilatation to be reached soon and, with the mother having an urge to push, she was expecting SL to deliver sooner rather than later.

[24]At 11 o’clock, Midwife Kako-Are again reviewed the CTG trace and found it still to be pathological. The epidural had not been sited yet and she noted that the obstetric registrar would review the trace in quarter of an hour. At 11.15, upon further review of the trace by Midwife Kako-Are, she now assessed it as suspicious. In fact, accelerations were present, which would have been reassuring.

[25]At 11.30, the consultant anaesthetist, Dr Jason Scott, attended, the epidural catheter was sited and the first bolus of Fentanyl was given at 11.50.

[26]At 12.10, Dr Christopoulos and Dr Krishnan attended SL’s room to review the trace and SL herself. The plan was noted as follows:

“- v/e [vaginal examination] in one hour If fully [dilated] allow one hour for head descent (passive) CTG r/v [review] in 30 min : explain need for further FBS [fetal blood sample] if indicated.”

If fully [dilated] allow one hour for head descent (passive) CTG r/v [review] in 30 min : explain need for further FBS [fetal blood sample] if indicated.”

CTG r/v [review] in 30 min

[27]At 12.30, Midwife Kako-Are noted that there had been a prolonged deceleration for 30 seconds down to 68bpm and SL’s position was changed to the left lateral. There was also some fetal tachycardia. At 12.40, she noted that the epidural was now effective. At 12.45 Midwife Kako-Are reviewed the trace and wanted a doctor to review it. Such review was in any event overdue according to the plan made at 12.10 (see paragraph 26 above). Unfortunately, at this stage the delivery suite was extremely busy and both obstetric operating theatres were occupied: none of the doctors in the on-call team were available to review the trace. By 13.05, the contractions were now five in ten and therefore the Syntocinon was stopped by Midwife Kako-Are (five in ten is the maximum acceptable rate of contraction and therefore it was unnecessary for the contractions to be further driven by the Syntocinon). By 13.15, with a fetal tachycardia and contractions at five in ten, Midwife Kako-Are was concerned that the review should take place and about the possible need for a further fetal blood sample. She therefore went to the theatre to speak to the obstetric registrar direct. However, he was busy so she spoke to the Midwife in Charge of the delivery suite saying that she needed the obstetric registrar to review the trace “now”. Dr Christopoulos then asked Dr Krishnan to leave the theatre and review the trace.

[28]At 13.25, Dr Krishnan reviewed the trace and performed a vaginal examination. The cervix was fully dilated and Dr Krishnan went out to call Dr Christopoulos to review the trace.

[29]At 13.30, Dr Christopoulos further reviewed SL and the CTG. He also carried out his own vaginal examination. He assessed the CTG as pathological, with a baseline rate of 180 bpm and atypical variable decelerations associated with more than 50% of contractions for the previous 30 minutes. On vaginal examination, the cervix was fully dilated, the vertex was at the spines (i.e. there had been no further descent since 10.45) and the position was LOA (left occipital anterior). He also noted a “narrow sub-pubic arch”: it may be that this was information supplied to him by SL and AL, as explained later in this judgment. Dr Christopoulos carried out a further fetal blood sample and again the results were reassuringly normal in terms of fetal well-being: the pH was 7.256 and the base excess was -4.6.

[30]What happened next is reflected in a retrospective note made by Dr Christopoulos at 16.30 that afternoon. Having noted his review of SL with Dr Krishnan, the vaginal examination, the CTG and the result of the fetal blood sample, he noted that the initial plan had been to allow one hour for passive second stage. The second stage of labour is from the time of full dilatation to the time of delivery of the baby and I understand this to mean that, with the condition of the baby being reassuring, Dr Christopoulos planned to allow for further passive descent before active pushing by the mother. He then noted this:

“Whilst debriefing patient after FBS, fetal bradycardia to 90 bpm noticed. Emergency buzzer pressed – decision for crash CS [caesarean section] at 13.55. Anaesthetist and theatres informed by myself. Both theatres currently occupied with C sections. Mr Mascarenhas called to attend. He examined patient in room Cx [cervix] fully, Ceph, ROL [right occipital lateral] at spines NOT deliverable in room Patient transferred to theatre by myself and midwife.”

He examined patient in room Cx [cervix] fully, Ceph, ROL [right occipital lateral] at spines NOT deliverable in room Patient transferred to theatre by myself and midwife.”

NOT deliverable in room

[31]The CTG was disconnected at 14.05 indicating the time of transfer of SL from the delivery room to the anaesthetic room where the anaesthetic was topped up by the anaesthetist while the theatre (which by this time had been vacated) was being cleaned and made ready for SL. The operation commenced at 14.16 and the Claimant ML was delivered at 14.18.

[32]At delivery, ML was in poor condition with an Apgar score of only 1 (for a discernible heart rate below 100) at 1 minute. Cord blood gases showed an arterial pH of 7.22 and a venous pH of 6.9. This indicates that the cause of the sudden bradycardia at about 13.53 was likely to have been cord occlusion. ML was thus subjected to a period of acute profound hypoxia-ischaemia and brain damage probably started to ensue after 10 minutes, that is from about 14:03. The expert paediatricians have agreed that restoration of supply of oxygenated blood to ML’s brain was probably at about 1 minute after birth, that is by 14.19 and so he may have sustained 15 minutes or so of brain damaging hypoxic-ischaemia. However, clinically his condition is such that this appears to be too long a period and it may be that the hypoxic-ischaemia was intermittent, at least until the final ten minutes or so.

[33]Tragically, for ML and his family, he has sustained serious brain damage to those parts of the brain which are susceptible to an acute profound hypoxic-ischaemic of this kind, as has been agreed between neuroradiological experts instructed by the parties.

[34]At 20.00 that evening, Dr Christopoulos came to see SL. He examined her to check that all was well after the caesarean section but also noted:

“Patient debriefed/was seen by neonatal team.”

[35]Given the outcome in the case, and in particular the fact that it appeared that there may have been delay in delivery of ML because of the non-availability of a theatre, the Defendant Trust conducted an inquiry, resulting in a “Root Cause Analysis Report” in June 2010. As part of the inquiry, the Trust took statements from the main protagonists, but not SL or AL. Thus, among others, statements were taken from Midwife Kako-Are on 4 February 2010, Dr Christopoulos on 9 February 2010, Dr Krishnan on 9 February 2010 and Mr Mascarenhas on 7 June 2010. The focus of the inquiry was in relation to the events when the fetal heart became bradycardic at 13.53 and the decision to deliver by caesarean section was made at 13.55. The recommendations and action plan arising from the RCA report indicated areas of criticism of the hospital in relation to decision-making, record-making, and theatre usage. However, for reasons which will become apparent, these matters have become irrelevant for the purposes of this trial.

[36]On 7 April 2010, SL wrote a letter of complaint to the Chief Executive of the Defendant Trust. In the course of that letter, SL made reference to the examination by Dr Christopoulos which we now know was between 10.40 and 10.50, pinpointed in the letter by SL’s reference to the taking of the fetal blood sample. She said this:

“I was examined by a junior female Indian doctor and then examined by another doctor, Dr Christopoulos. They said that the head was engaged and a blood sample was taken from the baby’s head. They said the results were “7.25”, which they said was average so they would continue to proceed with a natural delivery. At this point I was in extreme pain and said, ‘please, just chop me, what are you waiting for?’ meaning that I wanted a caesarean section. Dr Christopoulos said, ‘we are trying to avoid this route.’ My husband asked why they were avoiding this, to which Dr Christopoulos replied, ‘This is a major surgery with six weeks recovery time.’ Midwife Kako-Are [expressed] further concerns about the baby’s heart rate dipping and then at around 12pm Dr Christopoulos examined me again and said that I was 8 cm. Another blood sample was taken and reported as 7.25. Dr Christopoulos said that we should wait another hour and get me to deliver vaginally. I asked for an epidural and I was given one at around 12.15pm. After around 20 mins I felt much more coherent and relaxed as the pain disappeared and I started talking and joking with my husband and sister.”

In that letter, SL set out her areas of concern in numbered paragraphs. At number 7 she stated:

“I requested a caesarean section at 07.25 – why did this not take place?”

In fact, I do not think that there was any request for a caesarean section at 7.25 and it is likely that SL was confusing the time with the result of the fetal blood sample. Furthermore, it appears that, in her recollection of events, SL has become confused as to what happened and when. Thus, she suggests that she was examined by Dr Christopoulos at 12pm when he said that she (i.e. her cervix) was 8cm dilated, another blood sample was taken and she asked for an epidural. In fact, it was at 10.40 to 10.50 that the cervix was found to be 8cm dilated and when SL asked for an epidural and indeed when the blood sample was taken. There is no suggestion of a second fetal blood sample being taken at about 12pm. Nor was the epidural given at around 12.15, it had been sited at 11.45 pursuant to the request at 10.50. “I requested a caesarean section at 07.25 – why did this not take place?” In fact, I do not think that there was any request for a caesarean section at 7.25 and it is likely that SL was confusing the time with the result of the fetal blood sample. Furthermore, it appears that, in her recollection of events, SL has become confused as to what happened and when. Thus, she suggests that she was examined by Dr Christopoulos at 12pm when he said that she (i.e. her cervix) was 8cm dilated, another blood sample was taken and she asked for an epidural. In fact, it was at 10.40 to 10.50 that the cervix was found to be 8cm dilated and when SL asked for an epidural and indeed when the blood sample was taken. There is no suggestion of a second fetal blood sample being taken at about 12pm. Nor was the epidural given at around 12.15, it had been sited at 11.45 pursuant to the request at 10.50.

The proceedings

[37]On 16 August 2013, the Claimant’s solicitors sent a pre-action protocol Letter of Claim. This included the following:

“It is [SL]’s evidence that she requested caesarean section at around the time result of fetal blood sampling was available and was normal at pH 7.28 and base excess -2.8 mmol/L. This was around 1040. She recalls using the words ‘please just chop me, what are you waiting for?’ or words of a similar obvious gist. It is overwhelmingly probable that, had she been invited to consider her options for delivery about 0936, 0942 etc, she would have expressed a preference for caesarean section. If it had been recommended by the obstetrician, there was no prospect at all of her choosing not to accept such a recommendation. The response to such decelerations would or should have been to discuss with SL the options for delivery including caesarean section. That discussion would have taken the form of an explanation of the risks and benefits of vaginal delivery and of caesarean section. … It is not contended that delivery by caesareans section was mandatory at this time. However if a request from [SL] for delivery by caesarean section had resulted from such a discussion it would not have been appropriate management to refuse that request.”

In addition, it was alleged that caesarean section should have been recommended at about 06.45, that a FSE should have been in place by about 09.30, the decision to perform caesarean section at 13.50 should have been made sooner and there was an unreasonable delay in the delivery of ML because the operating theatre was not ready as it would have been at an earlier time

[38]The Trust’s Letter of Response (“LOR”), via their solicitors, is dated 16 September 2014, and denies that there was an indication to offer SL, or discuss with her, a caesarean section before 09.16. It is further denied that it was a breach of duty not to have applied a FSE. The LOR also includes a section headed “10:40 – Request for Caesarean Section”. This sets out Dr Christopoulos’ note, the result of the FBS, and continues:

“Despite the description of the CTG at this stage as “pathological”, a fetal blood sample was carried out which was normal. [SL] was 8cms dilated by about 10:40, so therefore was making good progress in labour. In the presence of a normal fetal blood sample, and 8cms dilatation and good progress in labour no reasonable obstetrician would have offered a caesarean section at this stage, and it would have been wrong to do so. No reasonable obstetrician would have suggested to [SL] that caesarean section was an option for her if she wished.”

The letter did not, however, address directly whether it was agreed that the request for a caesarean section (“please just chop me”) had been made by SL, nor, if it was, what the Trust’s position was as to the response of Dr Christopoulos to the request, and whether that response was appropriate. It has to be said, however, that this may have been because the Letter of Claim seemed to be conflating two things: the request for a caesarean section, and whether the obstetricians should have been inviting SL to consider her options for delivery, including caesarean section. The response to a maternal request for caesarean section is importantly different to a suggestion that the clinicians should have been offering caesarean section on clinical grounds. Finally, the LOR denies that there was a delay in deciding to carry out caesarean section or in achieving delivery.

[39]A Claim Form was issued on 5 March 2015 and Particulars of Claim were served dated 9 January 2016. The Defendant served a Defence on 20 April 2016. The Particulars of Claim essentially repeated the allegations made on the LOC.

(h) -(j):

“(h) failing instead to pay any or any sufficient weight to [SL’s] request for caesarean section at or around 1040; (i) In effect refusing her clear request for caesarean section at around 1040; (j) If her clear request was not to be acceded to, failing to discuss her options for delivery at that time such that she was permitted to understand that she could opt for delivery by caesarean section if it was her choice.”

[40]In its Defence, the Defendant pleaded as follows:

“It is neither admitted nor denied that [SL] request a caesarean section, but even if she did, there was no indication or good reason to perform one at 10.40, nor would it be reasonable or normal practice – in the absence of a good reason for a change in the pre-planned decision to attempt a natural birth – to advise a woman that a caesarean section was an option when there was no good reason to perform one. There was good progress in labour and the factors itemised in paragraph 16 were not sufficient to prompt a discussion about altering the plan for natural birth. They were factors that are seen frequently in labour and would – if taken to mandate presenting the option of a caesarean section – require obstetric staff to offer caesarean section in many labours, many of which result in successful natural births.”

[41]In advance of the trial, witness statements were prepared and served on behalf of each party as follows:(i) For the Claimant: SL, SL’s husband (AL), SL’s mother (MG) and SL’s sister (BG);

(ii) For the Defendant: Mr Georgios Christopoulos, Mr Lawrence Mascarenhas, Dr Jasimar Krueger and Midwife Abosede Kako-Are.

[42]Experts reports were exchanged in the following disciplines: obstetrics, midwifery, neuroradiology and paediatrics. The respective experts were: Discipline Claimant Defendant Obstetrics Dr P B Forbes Mr D J Tufnell Midwifery Mrs H Greenway Mrs J Fraser Neuroradiology Dr N McConachie Dr S Forbes Paediatrics Professor M Levene Dr N Thomas

[43]Joint expert meetings were arranged in the usual way for the experts to discuss, and attempt to narrow, the issues between them. The midwives discussed the case on 2 February 2018 and the radiologists and paediatricians discussed the case on 6 February 2018. The obstetricians discussed the case on 7 February 2018 and as no agenda could be agreed for them, they considered two agendas, one prepared by each side. In the Claimant’s agenda, there appear the following questions and answers (DJT being Mr Tuffnell, PF being Mr Forbes):

“(8) If, at around 10.20-10.40 Mrs Luca “demanded” (Mr Forbes’ description) or “requested” (Mr Tuffnell’s description) a caesarean section, what should have been the response of the hospital staff and why should they have responded in the way that the experts say they should have responded? DJT If the woman or her partner ask about caesarean section then it is appropriate to explain the risks of the procedure, the present assessment of the progress of labour and fetal wellbeing and provide an indication as to whether the procedure would be medically indicated. It would also be appropriate to indicate how further information about fetal wellbeing could be obtained (a fetal blood sample), and options for analgesia for the labour. Generally a consensus view should be reached between clinicians and the couple. PF: This was not a maternal request for caesarean section without medical indication. Some obstetricians would have offered it earlier in light of prelabour thick meconium. There had been CTG abnormalities and Mrs Luca would have been aware of the midwife’s concerns. It was predictable that FBS would give a normal result. It was not the condition of the baby at the time which was a possible indication for caesarean section, but the concatenation of circumstances and events which might herald future problems. She would need to understand the risks and benefits of carrying on and of caesarean section, as outlined at Annex B of PF’s report. Caesarean section is widely performed without medical indication (e.g. after previous caesarean section). (9) What risks/benefits of either carrying on with the labour or having a caesarean section should have been explained to Mrs Luca and in what terms? DJT It would be usual to explain the nature of caesarean section, the surgical risk and the increased period of recovery as well as the potential impact on future pregnancies. It would be appropriate at that point to indicate the CTG shows features of concern but that it would be usual to assess the condition of the baby further and then make a plan for the rest of the labour. PF: Refers to Annex B of his report. (10) In particular, should Mrs Luca have been advised/warned about possible risks to the baby of continuing with the labour? We agreed: See q9 (11) If there was such a demand or request and after the explanations referred to in question (9) and (10) above had been given, Mrs Luca had insisted at that stage on having a caesarean section, how should a reasonable obstetrician respond in these circumstances to such a demand/request? DJT It would be usual to give the family time to consider the information provided, arrange senior review and then come to a consensus as to the best approach. Ultimately if despite medical advice to the contrary the woman was clear that she wished CS then that would be performed. It would be extremely unusual in my experience for the woman to persist with a request, counselled appropriately. PF: The obstetrician would be obliged to agree to carry out the section. I agree that the consultant should at least be informed, and would be obliged to attend in person if s/he (the consultant) did not grant permission.”

We agreed: See q9

[44]In the answer to question 9, Mr Forbes refers to Annex B of his report. This part of Mr Forbes’ report is principally a consideration of the significance of the decision of Jay J in Tasmin v Barts Health NHS Trust

[2015] EWHC 3135 (QB)

and the decision of the Supreme Court in Montgomery v Lanarkshire Health Board

[2015] UKSC 11

, but at paragraphs B6 and B7 Mr Forbes sets out his views on what needed to be discussed in relation to the benefits and risks of continuing the labour and caesarean section. He stated: B6 Broadly speaking, what needed to be discussed were the benefits and risks of two courses of action: continuing the labour (with a view to normal vaginal delivery (NVD)) and caesarean section. She would or should have been advised: 1. Continuing the Laboura. Benefits

• Avoidance of caesarean section

• Normal FBS would be reassuring

b. Risks

• Further FHR decelerations

• Possible need for FBS

• Cord compression due to oligohydramnios

• Fetal acidosis

• Possible need for caesarean section in later labour (at least 25%)

• Genital tract trauma if instrumental delivery (15% likelihood of forceps/ventouse) 2. Caesarean Section a. Benefits

• Safe delivery of baby in good condition b. Risks

• Haemorrhage more likelythan with NVD (but not instrumental)

• Infection more likely than with NVD (but prophylactic antibiotic)

• Venous thromboembolism more likely than with NVD (prophylactic heparin)

• Implications for future pregnancies B7. Although the evidence base for the above would not be explained in any detail, it is necessary to do so for the purposes of this discussion. Allen et al (2005) studied women undergoing caesarean section (CS) in labour and compared those whose cervices were and were not fully (<fully) dilated. The same group (Allen et al, 2003) compared spontaneous labours with elective caesarean section. The incidences (%) of various complications were: cs <fully NVD assisted Haemorrhage 2.9 5.1 9.6 Transfusion 0.5 0.3 0.8 Hysterectomy

0.1 NS NS Febrile morbidity 0.3

0.2 0.4 Intraoperative trauma 1.3 0.1 0.1 Venous thromboembolism 0.0 <0.5 <0.5

[45]After the joint statements of the experts had been prepared, the Defendant served a second witness statement from Mr Christopoulos on 20 March 2018. Pursuant to the Master’s order of 25 April 2018, Amended Particulars of Claim and an Amended Defence were exchanged on 30 April 2018, but it is unnecessary to set out these amendments for the purposes of this judgment as they relate to the allegations concerning the events at the time of delivery which have now been abandoned (see paragraphs 50 and 51 below). Finally, a second statement from Mr Mascarenhas was served on 3 May 2018.

The Trial

[46]At the start of the trial, an application was made on behalf of the Claimant for further disclosure by the Defendant of the medical records in respect of other patients, referred to for the purposes of the trial as Patients A, B and C, who were the patients who blocked the two obstetric theatres at the time that the caesarean section in this case was required. Mr Glancy QC stated that, until then, the Claimant’s team had been working from redacted records and his expert, Mr Forbes, had been hampered in his consideration of those records by the extent of the redactions. Accordingly, Mr Glancy sought an order pursuant to Section 35 (1) of the Data Protection Act 1998 which provides:

“Personal data is exempt from the non-disclosure provisions where the disclosure is required by or under any enactment or by any rule of law or by the order of the Court.”

By sub-section 2:

“Personal data exempt from the non-disclosure provisions where the disclosure is necessary for the purpose of or in connection with any legal proceedings, or the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”

[47]For the Defendant, Mr Bishop QC conceded that the documents sought passed the test of relevance under Part 31 of the Civil Procedure Rules. He then considered the Defendant’s position as a Data Controller for the purposes of the Data Protection Act 1998 which prohibited the Defendant from disclosing data of a sensitive nature which identifies the data subject without the subject’s consent. He submitted that the disclosure already made was that which the Defendant considered that it could legitimately make within the boundaries of the 1998 Act but that the Claimant wanted to see more which he, Mr Bishop, entirely understood. He submitted that the further disclosure, if the Court was minded to make an order, should be limited to the contemporaneous labour records only of the relevant patients which would adequately paint a picture of what was going on with them, and where it was going on and that nothing further was needed. Thus, in anticipation of Mr Glancy’s application, the Defendant had compiled files of records for each of the patients, each file containing three sections: section 1 being what the Defendant would invite the Court to consider if an order was to be made; the second section being what had already been disclosed; and the third section being a full copy of the obstetric records as held by the Trust.

[48]In a ruling made in response to these submissions, I ordered that the Defendant should disclose to the Claimant’s legal advisers unredacted versions of that which had already been disclosed in redacted form and also make disclosure of the full obstetric records (that is section 3 in each of the three files relating to each patient), limited to Mr Forbes, the Claimant’s obstetric expert. It seemed to me that, as an obstetrician dealing with patients’ records in full on a daily basis and with his obligation to the Court, Mr Forbes should not be hampered at all by his consideration of the obstetric records of the other patients and he, with his expert eye, would be able to pick up from the full obstetric records anything which might be of relevance to the issues before the Court. If he found anything which was not included in the unredacted records already disclosed (essentially, section A in each of the files) which he considered to be relevant, then that limited record in the other parts of the records could be added to section 1.

[49]So far as the trial was concerned, I considered that we could proceed with the evidence of SL whilst Mr Forbes, sitting in Court, could look through the documents before giving the Claimant’s advisers his opinion as to what they signified for the purposes of the issues in the case.

[50]On the morning of the second day of trial, 15 May 2018, Mr Glancy QC for the Claimant said this:

“As a result of Mr Forbes being able to read in some detail all the unredacted notes in accordance with Your Lordship’s order of yesterday, he has been able to find out a great deal more detail about the procedures that were taking place on the other patients. Having considered all those matters Mr Forbes has reached a view that the criticisms he has made in his report of the Defendant not having a theatre available when the terminal bradycardia occurred at something like 13.50 on that afternoon is not one that he now feels that can be sustained. The reason for that is that the emergency that arose in relation to the patient who had to be delivered unexpectedly and who was occupying Theatre 1 was not one that could reasonably have been predicted. It occurred at a time when the elective caesarean section had already gone into Theatre 2.”

Thus, the case having been pleaded on the basis of a failure to have a spare operating theatre available, Mr Glancy conceded that the Claimant would no longer pursue the allegations contained at (n) to (r) in the Amended Particulars of Claim.

[51]As a result of these concessions, the issues in the case narrowed considerably and it was agreed between the parties that it was no longer necessary for the Court to hear from the experts in Paediatrics, the Neuroradiology or Midwifery. Thus, the events concerning the Defendant’s response to the terminal bradycardia at 13.50 on 26 January 2010 was no longer alleged to involve breach of duty which was now confined to the earlier allegations relating to the failure on the part of the Defendant to carry out an earlier caesarean section, whether as a result of SL’s request or otherwise.

[52]This also simplified the Court’s task in relation to causation. Arising out of the allegations surrounding the delay in carrying out the emergency caesarean section at and after 13.50, the Claimant had pleaded the doctrine of “material contribution” as an alternative to needing to prove that, but for the breach of duty, the Claimant’s brain damage would have been avoided. However, with the abandonment of the allegations of breach of duty at and around 13.50, this issue also fell by the wayside and it was conceded by the Defendant that had a caesarean section been carried out earlier at the time alleged by the Claimant, then the terminal bradycardia would have been avoided altogether and ML would have been delivered intact. Thus, the issue that needed to be resolved at trial was the narrow one whether there had been breach of duty in failing to carry out an earlier caesarean section, which only required evidence from the expert obstetricians in addition to the witnesses of fact. The narrow issue to be decided by the Court is whether the Claimant’s mother, SL requested a caesarean section and, if she did, whether the Defendant, in breach of duty, failed to accede to that request.

The evidence

[53]Given the narrow issue to be decided, I shall confine my consideration of the evidence to that which is relevant to the remaining issue.

The evidence of SL, the Claimant’s mother

[54]SL gave evidence and confirmed that the contents of her witness statement, dated 7 October 2016, were true. This included the following passage:

“21. … A blood sample was taken from the baby’s head. I was told that the result was 7.25, which they said was within the reasonable range and I remember them saying that they would continue to proceed with a normal delivery. 22. I couldn’t understand why they were delaying delivering the baby because in my mind, it had been a very long time since I first saw the meconium the day before. I believed the meconium was there as a warning and then the Midwife had been unhappy several times with the baby’s heart rate. I was worried and in pain and I clearly remember saying, “Please, just chop me, what are you waiting for?” meaning that I wanted a caesarean section. 23. Dr Christopoulos said that they were trying to avoid this route and when my husband asked why, Mr Christopoulos said that this is major surgery with six weeks recovery time. I don’t remember him saying anything else about the caesarean section or about the baby’s condition.”

[55]In addition, SL, giving evidence-in-chief, was asked why she had requested a caesarean section. She said that her sanitary pad had changed to a yellowish colour. She was asked what were the factors in making her request and she said that she was concerned in relation to the meconium in her waters and also because the labour had gone on for a long period. She was influenced by the midwife’s facial expression and body language and her anxiety in relation to the fetal heart. SL said that she didn’t want to risk anything going wrong. She said that Mr Christopoulos said that they should continue with the labour because it would take six weeks for her to recover from a caesarean section, that it was his decision and that was the only reasoning and rationale given to her. She said that there was no discussion about it and Mr Christopoulos said this in a very conclusive fashion.

[56]In cross-examination, SL was asked where the time of 7.25 as the time set out in the letter of complaint that she requested a caesarean section had come from and she responded she didn’t know. It was put to her that her recollection was faulty but she did not accept this saying:

“I’m very good at picking up on body language and at remembering things that are said.”

She agreed that her only request for a caesarean section was when she said:

“Please just chop me, what are you waiting for”

. SL was asked by Mr Bishop about the taking of the first FBS and she agreed that she knew they were doing it to make sure that ML was alright. It was put to her that she knew that if it showed him to be alright, they thought that the right thing to do would be to let things continue and she said:

“I haven’t made assumptions of that. I thought we would have a discussion around it.”

It was suggested that there could have been some sort of discussion with the doctors along the lines that if the FBS showed that ML was not alright, in those circumstances they would be proceeding to caesarean section and that she may have asked her question then, but SL denied this. She said:

“No I didn’t. Because I would have expected they would come back and have that discussion with me. Because – I put my trust in them to make the right decision”

It was put to SL that, when the FBS was taken, it was explained to her why they were doing that and what the results would mean, that it was done in full consultation with her and she responded that she thought they were more explaining the procedure rather than talking about the possible results. SL stated that she had made her request for a caesarean section after she knew the result of the first FBS.

[57]Mr Bishop put to SL that they told her the result of the first FBS and it was normal. She responded:

“They said it was borderline. And, for me, borderline is neither good nor bad and for someone who is quite fearful, borderline doesn’t sound good.”

It was suggested to her that in fact it was after the second FBS that they said it was borderline and this is what SL had said in her letter of complaint of April 2010. Mr Bishop put:

“Am I right in thinking it was the second one rather than the first one?”

To which SL responded:

“It could have been the second one.”

There was then this exchange:

“Q: What I suggest to you is that the result of the fetal blood sample came back and you were told that it was normal. So, what was it that suddenly changed, you now having been told you had a normal fetal blood sample, so [ML]’s ok. What was it at that point that suddenly made you say for god’s sake or words to that effect just chop me and get him out? A: There’d been nothing that made me feel secure and reassured, particularly, throughout and it was still in the back of my mind that there was meconium, and the meconium had been there from a good few hours before, and at the back of my mind I had remembered in the ante-natal classes that they said: all the things you remember, the one sign you are going to worry about is going to be when there is meconium because it means distress. It means the [baby] is in danger, it means that you know they will need to act. That was the red flag for me. And then, secondly, I was still concerned that if the CTG … the monitoring had dips and decelerations and there were heart issues, that could happen again if it continued sort of waiting. So I just felt like what we were doing was prolonging, waiting, until the anxiety hadn’t gone because it was almost like we’d be waiting for that to happen again, and I just thought this … my maternal instinct said: we need to do something. Can you chop me and take him out.”

Again, Mr Bishop pressed SL about why the remarks should have been made after the result of the FBS was known when the FBS was reassuring and showed that ML was in fact okay. Mr Bishop put this:

“I think what I actually suggest to you is that you made the, let’s call it a request, or however we want to term it, for the caesarean section not at that stage because you weren’t particularly worried about ML but because you were having a rotten and painful time in labour and you were in a lot of pain and it had been going on for a long time. What I am suggesting to you is this, you said what a lot of labouring mothers do in those circumstances and said ‘well for god’s sake, get this over with and please chop him out’.”

To this SL replied:

“I’m afraid that’s not true, My Lord.”

By reference to SL’s letter of 7 April 2010 where she had said “They said the results were 7.25 which they said was average so they would continue to proceed for the natural delivery. At this point I was in extreme pain and said ‘Please just chop me what are you waiting for’ meaning that I wanted a caesarean section.” it was put that the request for the caesarean section arose not because of concern about ML but because SL was in extreme pain. SL disagreed with that suggestion. It was further put that the response of the clinicians was that they could deal with her pain by giving her an epidural, which was in fact done. It was put:

“Q: After the epidural, you were actually quite relaxed and I think you were joking with your sister and husband? A: Yes, the pain was controlled. I still had the concerns because the midwife was still concerned, but I felt that I needed to be positive and have the right attitude.”

It was again put to SL that she was relaxed and happier once the pain was controlled because she wasn’t at that stage in fact worried about ML and she responded:

“No, I think the pain was controlled. I agree with that, but the concern for ML was always there. The atmosphere in the room didn’t change from [the midwife], the doctors running in and out didn’t change the fact that there was meconium and at the back of my mind was always there and I was worried about it, and I knew what had happened in most children with meconium, and I’d been advised and given stories still made me anxious, although I was trying to manage my anxiety by being positive and taking the advice from the doctors, who I thought would know better and keep monitoring the risks.”

[58]In further cross-examination, SL asserted that her husband had said to the obstetrician when the decision was made to continue with the labour that SL had a “narrow sub-pubic arch” which would make it hard for her to deliver vaginally. It was put to SL that this part of the conversation did not form any part of her witness statement, to which she replied:

“I think it’s mentioned in my husband’s witness statement”

. She was shown her husband’s witness statement where there was no mention of him having said this. There was then this exchange:

“Q: So I don’t think your husband mentioned it, you certainly haven’t mentioned it in your previous statement and I wonder if the fact that you now remember this is just an illustration of how difficult it is after so long a time to remember precisely who said what to whom and when? A: No I remember that very clearly. But it’s not put in here, I think that might have been the fact my husband, potentially, had forgot that small detail of the conversation but he definitely mentioned it. Without a shadow of doubt.”

SL then revealed that she and her husband had written down notes of what had occurred straightaway after ML was delivered and that she had given those notes to her solicitor who should have those original notes. He agreed that she would have used those notes when making her witness statement and the notes were written when matters were fresh in her mind.

[59]After SL’s evidence on day 1, the trial was adjourned and after dealing with Mr Forbes’ consideration of the unredacted medical notes of Patient A, B and C and the abandonment of the allegations (n) to (r), SL was then recalled to deal with a further witness statement dated 1 November 2010 which had not been served previously but in respect of which privilege was now waived. That statement was added to the bundle at page 146 A. This stated:

“12. At this point I was in extreme pain and remember saying, “Please, just chop me, what are you waiting for?” meaning that I wanted a caesarean section. Mr Christopoulos said that they were trying to avoid this route and when my husband asked why, Mr Christopoulos said that this is major surgery with six weeks recovery time. My husband explained that I had a narrow pubic arch and this might make it difficult to deliver naturally, to which Mr Christopoulos replied that this was not a problem.”

It will be noted that this final sentence was omitted from the statement served for the purposes of the proceedings (see paragraph 54 above in this judgment) and replaced with the words “I don’t remember him saying anything else about the caesarean section or about the baby’s condition.” This change appears to have been deliberate, a decision having been made that although it appeared in her statement made in 2010, SL would not adduce the evidence about her husband having commented on her narrow pubic arch in her statement served for the purposes of the proceedings. Nor had this been pleaded. However, given her evidence in cross-examination, it seems clear that SL had not simply changed her mind about whether her husband had said that but, on the contrary, maintained strongly that he had. I therefore do not understand how it was that this potentially important sentence came to be excluded from the served witness statement, but it is of obvious concern to the court that facts and matters believed to be true are omitted from witness statements served in accordance with court Orders, presumably because those facts and matters are thought not to be helpful to the Claimant’s case. This leads to cross-examination on a false basis and to witnesses getting into difficulty and appearing to be mistaken in their recollection. I must assume that the decision to omit that sentence was SL’s.

[60]In a further passage in the statement of 1 November 2010, SL had said:

“15. At 11.30am I was given an epidural and after about 20 minutes I felt much more coherent and relaxed as the pain disappeared and I started talking and joking with my husband and sister. Mr Christopoulos said that we should wait another hour and get me to deliver vaginally.”

[61]SL was further cross-examined about this statement by Mr Bishop QC and he pointed to various differences between this original statement from 2010 and SL’s witness statements served for the purposes of the proceedings. Thus, there was no mention in paragraph 12 of other factors apart from pain as being the reason for the request for a caesarean section, and the reference to talking and joking with her husband and sister had been omitted from the more recent statement. She had also referred to there having been four fetal blood samples. There was also an error in relation to the timing of a conversation with Mr Christopoulos after ML was delivered.

[62]Generally, the Claimant’s case now depends critically upon this evidence from SL and my assessment of her accuracy and reliability as a witness. I do this in paragraph 86 below where I discuss my findings in relation to the critical conversation between SL and Dr Christopoulos, weighing SL’s evidence against that of Dr Christopoulos with which it was inconsistent.

The evidence of AL, the Claimant’s father

[63]SL’s husband, AL, also gave evidence stating in his written statement, in relation to the request for a caesarean section:

“19. … A blood sample was taken from the baby’s head. We were told that the result was 7.25, which they said was within the reasonable range. 20. All this time, I just remember them telling us these things, there was no sense that we were being consulted or having a discussion with them. Meanwhile [SL] was becoming more and more distressed because she was worried about the baby, about the meconium which she kept mentioning and the problems with the heartbeat. We were both aware of anxiety on the part of the Midwife about it. I cannot be sure of the time but I remember [SL] clearly saying to Dr Christopoulos, “Please, just chop me, what are you waiting for?” meaning that she wanted a caesarean section. 21. Dr Christopoulos said that they were trying to avoid this route and I asked him why and he said that this was major surgery with six weeks recovery time. There was no further discussion about it because if he had asked [SL], she was only concerned about the baby, not about her recovery time but the impression he gave was that he was just dismissing the request.”

[64]In his evidence-in-chief, AL was asked whether paragraph 21 represented the sum total of the discussion. He said yes and then continued:

“I asked Dr Christopoulos why he was not giving SL a caesarean section. He said it was a six-week recovery. I did also mention her narrow pubic arch which we knew from her IVF treatment, his response was to ignore it.”

[65]In cross-examination, AL said that the request for the caesarean section was after the first FBS but he couldn’t remember how soon after. He said:

“I didn’t enter into further conversation – I trusted the doctor.”

He disagreed with Mr Bishop when Mr Bishop put to him that, when SL requested a caesarean section, there followed a discussion about what would happen next including dealing with the pain she was in and that a number of reasons were given for not doing the caesarean section at that stage. He disagreed with the suggestion that Dr Christopoulos explained the situation and that they were happy with the explanation.

The evidence of BG, the Claimant’s maternal aunt

[66]SL’s sister BG, who was also present for much of the time, stated in her witness statement of 24 June 2016:

“7. …They then confirmed that his blood sample showed a good oxygen level and therefore [SL] would continue with a natural birth. I recall [SL] asking for a C-section but they said that it would be better for her to carry on towards a natural delivery. The reasoning was that she would recover quicker and that a natural childbirth was better.”

[67]In cross-examination BG said that she remembered SL asking for a caesarean section twice but then modified this, saying that she may have asked the doctor once but she also announced this to the room, namely that she wanted a caesarean section and that included the midwife. However, as will be seen, this was not confirmed by Midwife Kako-Are when she gave evidence who said that if she thought a doctor was refusing a request for a caesarean section, she would make a note of it and discuss it with the Midwife in Charge (see paragraph 75 below). BG denied that pain was the dominant reason for the request for the caesarean section saying that the main reason was concern for ML. She agreed that the doctors did explain what they were doing and why, for example when the fetal blood sample was taken.

The evidence of Mr Mascarenhas

[68]For the Defendant, the first witness was the consultant, Mr Mascarenhas who affirmed his statements. At paragraph 14, he stated:

“At 10.35 hours it was noted that the trace was considered to be pathological and at 10.40 hours there was a request from the midwife for an obstetric review of the trace. At 10.40 hours ST3 Dr Christopoulos reviewed the CTG and noted that on examination he found the Claimant’s mother to be 8cm dilated and was progressing quite normally. The CTG was described by him as pathological and he therefore performed a fetal blood sample. The result of the fetal blood sample was normal i.e. a pH of 7.28 and a base excess of -2.8.”

At paragraph 21, he stated as follows:

“21. I have noted that the Claimant alleges that we refused the Claimant’s mother’s request for a caesarean section at around 10.40 hours. I am not aware that the Claimant’s mother made such a request and even if she had at that point there was no medical reason to perform a caesarean section during a labour that was otherwise progressing well. It would not have been in accordance with normal or good practice. There was no good reason for a change in the pre-planned decision to attempt a vaginal delivery or to advise her that there was a need for a caesarean section or that it was a good option when there was no good reason to perform one. At that point there was good progress in labour. There was no indication to justify or indicate that there should be a discussion about an alternative method of delivery.”

[69]In evidence-in-chief, Mr Mascarenhas was asked whether it is a common or rare occurrence that somebody would say something along the lines “Please just chop me, what are you waiting for” during the course of their labour. He told the Court that this is a quite a common occurrence when there is a lot of pain and the usual practice is to review it after the pain has been controlled. He could not remember any request by SL for a caesarean section, nor anyone reporting such a request to him. He was then asked what his practice would be if, in circumstances where there is no medical reason to perform a caesarean section and it would not have been in accordance with normal or good practice, a mother nevertheless says, “Well I’ve heard what you say, but I still want a caesarean section”. He said this:

“Our practice would then be to discuss the risks and the benefits of proceeding with a C-section versus continuing with the normal route and if the mother insisted that she wanted a C-section, then we would carry it out. … I work in a Trust where we believe in choice and it would have been the case, ever since I joined in 2002, that if a woman’s choice was, despite medical advice, to proceed along a line, if we’ve discussed the benefits and the risks and agree with her choice.”

He said that the one thing that has changed since the decision of the Supreme Court in Montgomery is that now they would seek a positive affirmation from the patient that she has understood the risks and benefits as opposed to just a tacit acknowledgement by saying nothing. However, apart from that change, he did not regard Montgomery as having altered the practice at the Defendant Trust in any significant respect.

[70]In cross-examination, Mr Mascarenhas was asked about the position at 10.35 on 26 January 2010 and why he said in his statement that he was not overly concerned when there was meconium and the CTG was considered to be pathological in a high-risk labour. Mr Mascarenhas said that when he stated he was not overly concerned, that was referring to 10.20. He was asked if he would expect Dr Christopoulos to tell SL the whole situation. Mr Mascarenhas responded that SL had progressed very quickly, from 4 cm dilatation to 8 cm in one hour which was fast progress and the fetal blood sample could allay all the worries. He said that if a mother requested a caesarean section he would expect the midwife to tell him if the Registrar had refused this but he was not consulted about any discussion on SL’s management. Dr Christopoulos’ second statement was put to Mr Mascarenhas who responded that he couldn’t recall the conversation but presumes that Dr Christopoulos would have come to him and said:

“This lady is requesting a C section because she’s in pain and he, Mr Mascarenhas, would have replied: ‘Let’s review it after the pain has been dealt with.’”

He said he is not aware after that point of any persistent request for a caesarean section. He said:

“I would have been called back into the room if there was dispute about not performing a caesarean section and an unresolved request for a caesarean section I was not called back into the room at any point.”

Guidance from NICE was put to Mr Mascarenhas saying:

“Where a woman requests a caesarean section in the absence of an identifiable reason the overall benefits and risks of caesarean section compared to vaginal birth should be discussed and recorded”

. Mr Mascarenhas agreed with that and that was his standard practice: he would have been called back into the room by both either the midwife or the doctor to have that discussion which happens in standard clinical practice but he said that was not the case here. He said that the absence of any record of a request for a caesarean section in the notes indicated to him that it was a pain factor that was assessed by Dr Christopoulos and this was going to be reviewed after the pain had been dealt with. Mr Glancy QC put to Mr Mascarenhas that even if the primary reason or the sole reason for the request for a caesarean section was the pain that SL was suffering it was still at that stage necessary for the discussion to take into account the fact that this was a high-risk labour, with recurrent cord compression caused by lack of liquor and exemplified by the meconium, that this was all part of the picture that needed to be explained to SL when she requested a caesarean section. Mr Mascarenhas agreed with that and added that, on top of that, it would have to be explained to the mother that a fetal blood sample would probably reassure them whether these factors were indeed significant or whether they could be put aside if the result was normal. He said that is what he thought was done.

[71]In answer to questions from the Court, Mr Mascarenhas agreed that there should have been a record in the medical notes of SL’s request for a caesarean section and, indeed, of any review of the position that took place after her pain had been dealt with. When asked about Mr Christopoulos’ second statement and his assertion that he had discussed SL’s request for a caesarean section with Mr Mascarenhas, he said that he had not been aware of that statement and then he said this:

“I would think that, trying to look at it – a trainee would normally go round, if there was a request for a C-section, would have come out of the room and said to the consultant ‘There is a request for a C-section, I think it’s pain, we’ll deal with the pain and then we’ll deal with the request’, and I would have said ‘That’s fine, let’s do it that way’. If there was a persistent request he would have come back to me and said, ‘come to the room, this patient would like a C-section, I don’t think we should do one but I think you should review’. Now that never took place. That second step never took place, which makes me feel that it was an assessment of a C-section request for pain and that we were going to review it.”

He conceded, though, that the review should have been noted in the medical records but was not.

The evidence of Mr Christopoulos

[72]Mr Christopoulos gave evidence and confirmed his statements of 12 January 2017, and 20 March 2018 as well as the statement made for the root cause analysis inquiry on 9 February 2010. At the relevant time he was an ST3 Registrar (and therefore referred to then as Dr Christopoulos) and is now a consultant at University College Hospital, London (and to be referred to as Mr Christopoulos, his appropriate title as a Consultant). He said that when he saw SL to tell her the result of the fetal blood sample, it was at that stage that she said:

“Why don’t you chop me up now”

. He couldn’t remember specifically the discussion before the fetal blood sample but, by referring to his standard practice, said that he would have explained the test, what it involved, why they were doing it and the management thereafter which would have included abandonment of the plan for normal vaginal delivery and converting to caesarean section if the result was abnormally low. He said that he informed SL that the result of the fetal blood sample was an indication to continue, that they would continue to monitor the baby and if it changed, that might indicate a further change in the management plan in the future. After SL’s comment “Why don’t you chop me up now” he said he would have informed the patient that this would carry considerable risk including major pelvic surgery and a long recovery period and he would have referred to the common risks of haemorrhage, infection and venous thrombo-embolism. He said that requests for caesarean section are heard on a daily basis but he did not dismiss the request: he discussed this remark and would have explained that ML’s condition was normal and that the labour was proceeding well. He could not remember any comment about the narrow pubic arch at that stage. He confirmed that there had been a post-natal discussion with SL on the post-natal ward but this had not included an admission on his part that he had refused SL’s request for a caesarean section. What he said he told her was that she would have a choice in relation to any future pregnancy, given she had a scar.

[73]In cross-examination, Mr Christopoulos was asked why he had not recorded SL’s request for a caesarean section in his statement of 9 February 2010. He said that it was a brief comment, made whilst SL was experiencing labour pain and he didn’t know that this would be the focus of the inquiry. He said that at the time he made the statement he understood the focus was about the delivery itself, not a discussion that had taken place three hours previously. He had not been shown SL’s letter of 7 April 2010, nor had he been made aware of the basis of the claim, nor the details of the claim and he hadn’t known that SL was alleging that she had made a request for a caesarean section which had been refused. That is why there had been no reference to this in his first statement. He said that his understanding was that there had been a brief discussion which they had adequately settled at the time.

[74]Mr Christopoulos explained what happened between 10.40 and 10.50 on 26 January 2010. He said that he told SL that he was going to carry out a fetal blood sample and discussed with her the possible management depending upon what the result would be, including raising the question of a potential caesarean section should the oxygenation of the fetal blood sample be abnormally low. The fetal blood sample was then taken and given to the midwife for her to do the actual measurement and when the result was obtained he then had his discussion with SL about caesarean section in the light of SL’s comment “Why don’t you just chop me now”. Mr Christopoulos was also asked what the clinical indications are for a caesarean section and he included in his answer: presumed fetal compromise, failure to progress in labour and any haemodynamic problems such as haemorrhaging. Faced, as here, with a pathological trace in a patient who had meconium stained liquor, Mr Christopoulos agreed this could be perceived as a clinical indication to perform a caesarean section but he considered that he was following the NICE guidelines in carrying out a fetal blood sample first. Thus, he said that, had the patient declined a fetal blood sample, then there would have been a clinical indication for caesarean section. However, on this occasion, the patient agreed to have the fetal blood sample and the CTG then became a secondary tool of assessment because the FBS is more accurate. Thus, the FBS trumped the CTG and with a normal fetal blood sampling indicating normal pH and acid balance and normal oxygen levels in the baby, he did not have any clinical indication to carry out a caesarean section based on fetal compromise. It was suggested to him by Mr Glancy that, with evidence of recurrent cord compressions, they were liable to recur and were a predictor of problems to come in the future. Mr Christopoulos disagreed stating that cord compression is part of the normal physiology of labour and the important issue is whether there is evidence of hypoxia to the baby or the baby being compromised. Mr Glancy then asked whether a mother who is requesting a caesarean section needs to be informed as part of her decision whether there have been decelerations in the fetal heart rate and whether this was evidence of cord compression which might reoccur and he agreed that this was information the mother needs to have in order to make her decision.

[75]Mr Christopoulos was asked about the discussion he had with Mr Mascarenhas concerning SL’s request for a caesarean section. He said that he went to speak to the consultant to inform him that SL had made the comment and the discussion he’d had with the patient but he disagreed that he had obtained a consultant’s opinion because of a dispute between him and SL, SL wanting a caesarean section but him thinking there was an insufficient clinical indication. He said:

“I informed Mr Mascarenhas not because the patient did not want to proceed with the vaginal delivery at this stage but because I had just performed a procedure with assessing the fetal blood sampling and I updated my consultant about what that was and what the discussion I had with the patient was.”

He denied that he had dismissed a request for a caesarean section. He agreed that he had not discussed with SL the benefit of a caesarean section which he regarded as obvious, namely the delivery of the baby. It was suggested to him that a benefit of caesarean section is the safe delivery of a baby but Mr Christopoulos disagreed saying that, even with a caesarean section, safe delivery of the baby is not guaranteed, it does not guarantee the baby will be born unharmed. Nevertheless he agreed that he would focus on the risks associated with the request for a caesarean section.

The evidence of Midwife Kako-Are

[76]Midwife Kako-Are said in her evidence that they hear a request for a caesarean section very often when the mother is in pain and she would not always write it down. She said: “It is an expression they make” and she would not put it in the notes. She said that she would however make a note in the medical records if she thought that a doctor was refusing a request for a caesarean section and, furthermore, she would discuss it with the Midwife in Charge. She confirmed that a midwife is the patient’s advocate who is there to support the mother, including in the mother’s choices.

[77]In cross-examination she was asked if it was possible that the discussion about a caesarean section took place when she was not in the room but getting the fetal blood sample analysed and she agreed that that was possible but would expect a doctor to tell her if SL had asked for a caesarean section. She said that if the doctor had told her of the request, she would herself have asked if that was what the mother wanted and they would have taken it from there and she would have documented it in the notes. Furthermore the Midwife in Charge would be involved and any other person who needed to be involved as well. She could not remember any discussion about the matter.

The expert evidence

[78]The position of the experts as set out in their joint statement has already been stated: see paragraph 43 above. Furthermore, as also stated above, having seen the unredacted reports of Patients A, B and C, Mr Forbes, for the Claimant, no longer maintained his stance in relation to the events surrounding the terminal bradycardia at 13.53 and any suggestion of delay on the part of the Defendant in achieving the Claimant’s delivery after that bradycardia occurred. Mr Forbes stated at the start of his evidence that otherwise his opinion as stated in his report and in the joint statements were maintained. This included criticism of Dr Krueger, who attended SL at 06.45 who, he said, made an erroneous assessment of the CTG whereby she failed to order that the Syntocinon be turned off and should have performed a vaginal examination. He took the view that, had a vaginal examination been performed, the cervix would have probably only have been about 2cm dilated which would or should have led to a caesarean section being planned at that stage. However, as conceded by Mr Forbes in his report and in his evidence, the CTG did then suddenly improve without the Syntocinon being reduced or stopped and became wholly normal. He said:

“In light of this transformation of the CTG, many reasonable obstetricians would have cancelled the plan for caesarean section and continued to observe.”

For that reason, I have not set out in this judgment the evidence of Dr Krueger as it seems to me that any criticisms of her are of no causative significance. It was not a breach of duty to fail to carry a caesarean section at 06.45 or thereabouts and the induction of labour was reasonably allowed to continue at that stage. Indeed, when questioned by Mr Bishop QC, Mr Forbes accepted that he had expressed himself too trenchantly in his report when he said that a caesarean section should or would have been planned. He said:

“I think I agreed yesterday, My Lord, that perhaps it would have been more appropriate to term this as discussing the possible need for a caesarean section because what is envisaged is that whatever is done, whether it’s changing position, with or without switching off the Syntocinon, if that does not resolve the abnormality of the trace, then it’s going to lead to expedition of the delivery by caesarean section. … I accept that, in the report, it does sound as if my view was that a plan – a firm plan and action taken to put that plan into operation should have commenced at 06.50 and I did not really mean to be quite so proactive, shall we say.”

He agreed that his opinion was rather more nuanced than that namely that it should have been in their minds as a possibility, namely reversion to caesarean section, should remedial action not remedy the CTG. In those circumstances, any suggestion that a caesarean section should have been carried out at or about “6.45” was no longer in play.

[79]We come, therefore, to Mr Forbes’ evidence in relation to the events surrounding the taking of the fetal blood sample and SL’s remark: “Why don’t you just chop me now, what are you waiting for?” i). The CTG abnormalities prior to the taking of the fetal blood sample, when combined with the presence of thick meconium, suggested both oligohydramnios and cord vulnerability and therefore they were predictors of the likelihood of further problems occurring as the labour progressed and the baby further descended down the birth canal. In those circumstances, his view was that there should have been a discussion about the risks of continuing with the labour and the option of the alternative method of delivery by caesarean section. ii). Secondly, there should have been a full discussion about the risks and benefits of continuing with the labour and converting to caesarean section in the light of the mother’s request for a caesarean section at about 10.50 hours. He conceded that whether this request was simply borne out of pain or was a request for a caesarean section because of maternal concern for her baby was a matter for the court to decide, but in any event, he was of the opinion that the request should have led to a fully informed discussion which, on the mother’s evidence, never took place. If, on the court’s view, this would have led to a decision to delivery by caesarean section, based upon the mother’s evidence that she was risk-averse, then the terminal bradycardia which occurred at 13.53 would have been avoided.

[80]In cross-examination, Mr Forbes conceded that the factors upon which he relied in distinguishing Tasmin, whilst perhaps applicable at 9.30, were no longer wholly applicable at 10.50. Thus, the situation was not whether a decision should have been taken to carry out fetal blood sampling: fetal blood sampling had already been done, the results were known and they were normal. Secondly, he took into account that SL was “in early active labour (4cm): delivery was far from imminent”. However, at 10.50, SL’s cervix had been discovered to be 8cm dilated so that she was progressing well towards the second stage of labour and it could not be said that delivery was far from imminent. Indeed, as I have already observed, Midwife Kako-Are had begun to prepare the room for delivery. Thirdly, Mr Forbes relied upon the fact that the head was high, as indeed it had been at the time of the previous vaginal examination when found to be 2cm above the ischial spines. However, by 10.50 it was known that the head had descended so that it was at the level of the ischial spines which represented good progress and descent of the vertex. In the circumstances the situation as it existed at 10.50 was very different from that which Mr Forbes had postulated in Annex B of his report. Nevertheless, he stood by his two bases for asserting breach of duty as stated above.

[81]At the end of his evidence, I asked Mr Forbes about the difference between, if you like, a “serious” request for a caesarean section and a request motivated by pain. There was this exchange:

“Q: Now, I had the impression from what you said in answer to Mr Bishop that you don’t recognise a distinction between different requests for caesarean section, do I have that right? A: I think certainly from an obstetric viewpoint, yes. Q: If, as an obstetrician, your impression was that the request for a caesarean section was borne out of pain or motivated by pain would you, say, go through the full benefits, risks of it at that stage or might you say, ‘Why don’t we deal with your pain first and come back to this?’ Assuming that the baby is fine, you’ve established that there’s no pressing need for a caesarean section might you say something like, ‘Well let’s get the epidural in, let’s see how you get on with that and then revisit this question should you still want one’ or something like that? A: Yes, that would be an approach. I think we have to couch it slightly more formally and say that we have ways of relieving pain which may, as you put it, alter your view. Of course, we have previously discussed the concerns about the baby, so that doesn’t need to be featured in this. So, yes, I think I would accept that. Q: I have to make it clear that was not SL’s evidence so I have to make a decision about that in the light of what she said and the documentation, the letter of 7 April and the like; I was just wondering what your view was, were I to come to the conclusion that the motivation was principally, or even exclusively, pain. A: I believe, My Lord, if it was exclusively pain, then I think the offer would have gone as you’ve described it: let us get, get an epidural or discuss pain relief. But, in fact, in the event, she had an epidural I think she would have had one if one was offered under those – though, clearly, that’s for Your Lordship not for me.”

There, Mr Forbes was suggesting that he believes that the mother would have opted for a caesarean section in any event but recognised that this was a question for the court.

[82]Mr Tufnell disagreed strongly with Mr Forbes’ opinion that the CTG abnormalities together with the thick meconium were predictors for cord compression such as to give rise to the need to discuss the alternative of caesarean section. He said:

“It obviously seems attractive to think that if there’s intermittent cord compression that would predict an acute cord occlusion, but one is extraordinarily common and one is incredibly rare. Unfortunately, acute cord occlusion can arise – and I think Mr Forbes did say this - in a completely uneventful straightforward labour with no previous problems, and the chances of that are very small. So, although there was cord compression which, to put a figure on it, occurs in 30+ per cent of labours, that doesn’t predict an acute cord occlusion which occurs in one in many thousands of labours. And Mr Forbes said: ‘Well the reduced liquor or the meconium makes that more likely’, I don’t think there is any evidence that it does and in my clinical and medical legal experience, I don’t think those are factors that help you in predicting the outcome. … You will be relying on doing something to prevent something unpredictable, and that’s a challenging idea in obstetric practice.”

Mr Tufnell supported this opinion by reference to what occurred later: despite a normal fetal blood sample at 13.30, indicating that the baby was not abnormally acidotic at that stage, there was nevertheless a terminal bradycardia some 20 minutes or so later and it was for this reason that Mr Tufnell said that the previous CTG abnormalities and evidence of cord compression was, in his view, unrelated to the actual events that caused the Claimant’s brain injury. He took the view that it is quite impossible to predict when an event such as occurred in this case will take place, it being so rare and often unheralded by previous CTG abnormalities. He said that there was no evidence to support the view that a terminal bradycardia of the kind that occurred here occurs more often where there have been CTG abnormalities in the absence of acidosis. Of course, where there is evidence of mounting acidosis, the position is quite different and that is why fetal blood samples are carried out. They can show that the pH is falling and when it falls into a certain range, it is accepted that the baby is at risk of brain injury and that delivery needs to be carried out whether by caesarean section or assisted vaginal delivery. However, that was not the position here.

[83]Mr Tufnell was then asked about the position of a competent clinician where a fetal blood sample had been taken, the result comes back and is normal and there is then a request by the mother for a caesarean section for reasons of pain. Mr Tufnell started by saying that an explanation would first be given about what the fetal blood sample would involve, both the nature of it and the reason for doing it namely concern about the baby. He said:

“You would say that if the fetal blood sample did not show a normal result, that you would have to think that we would have to interrupt the labour and that might mean caesarean section, depending on what we find on dilatation. But if the fetal blood sample showed a normal result, that would reassure us about the baby’s wellbeing and that, all other things being equal, it would be entirely appropriate to carry on with the labour. … Although there had been fetal heartrate abnormalities if the test was normal, that would be the test that would reassure you about fetal wellbeing. And you would be explaining the nature of it and that if it was normal, that would allow natural progress; if it was abnormal, you might need to do caesarean section. Then, if you have a fetal blood sample result with good progress and the woman said, ‘Actually what about caesarean section’ then I would be saying to her at that point ‘Well, I can understand that in labour often women can be anxious about how things are going, but I think at this point this labour is going well, we have good progress of the labour, that we’ve been reassured that the heartrate pattern is normal. I don’t see that there’d be a significant advantage to caesarean section, that there are risks to caesarean section, it is a major surgical procedure with a long recovery, there is a risk of bleeding, of trouble with infection, there’s a risk you may get clots, it has an impact on future pregnancies and, at this point, your labour’s going as well as we could hope for. If you have troubles about pain, then an epidural may help you, but at this point I will be encouraging you that labour was – it was reasonable for labour to continue’. And if the response I got back to that was that there was no disagreement with it then I would take it that I’d provided her with the appropriate information and options to continue her labour.”

[84]In cross-examination, Mr Glancy QC put to Mr Tufnell that the problem with the fetal blood sample is that “All that shows you is at that point, at that moment in time, the baby is not acidotic. It doesn’t show what is going to happen later, does it?” In answer, Mr Tufnell pointed out that no-one knows what’s going to happen in the future and obstetricians can only give reasonable clinical advice based upon the information that’s available at the time and “cannot predict the unpredictable”. Mr Glancy put to Mr Tufnell that it was possible to make a reasonable prediction in this particular situation, saying “I would suggest to you that the problems that have been causing the recurrent decelerations before the fetal blood sample would not go away and it was therefore reasonable to predict that there would be other decelerations in the hours to come.” In answer to this Mr Tufnell:

“Unfortunately this may be a fundamental misunderstanding about the fetal heart rate trace. It’s a screening test for babies’ hypoxia that might develop into acidosis and it’s required to keep monitoring. But fetal heart rate decelerations of themselves do not say there’s something wrong with the baby, to put it in simple terms. If the view was taken that every time there were fetal heart rate decelerations – and you will correct me if I’m wrong, but you are putting it to me that I should have to put to a woman that because there are decelerations of the heartrate that her baby is at risk, that would be a most unreasonable way to manage labour. It’s so common in labour, it’s such a frequent occurrence in labour, that you would be creating abnormality when none exists.”

Mr Glancy then put to Mr Tufnell that he was ignoring the context in which the decelerations were occurring namely a high-risk labour with meconium and the likelihood of oligohydramnios and the decelerations being caused by the cord becoming compressed. Mr Tufnell responded:

“But the reason you are concerned about meconium is because it puts the baby at risk of acidosis. You’ve done the test which shows the baby does not have acidosis. So although that was a risk factor, and although that might have been generating concern up to the point of the fetal blood sample, actually once you’ve got the fetal blood sample you are in a much more reassuring position than at any other time in the labour. So the idea that having performed a fetal blood sample you would then suggest to the woman that there was a problem, I have to say, seems to fly in the face of my 30 years of obstetric practice. … I think the process is a continuumandI think it was accepted this morning by Mr Forbes that as part of the explanation about the fetal blood sample those elements [i.e. the CTG abnormalities and the probability of cord compression] would be discussed. So the woman would be aware of that in having had the fetal blood sample. To do the fetal blood sample you have to explain, ‘There are decelerations, this might be a cause for concern, it’s probably caused by cord compression, I’m going to check that your baby is well but then we will need to continue to monitor if all is normal and if it’s not we will have to consider other options.’ As I understand it, it is accepted that the process of consent to the fetal blood sample was performed. So clearly that will be a matter for My Lord.”

[85]Mr Tufnell was then asked by Mr Glancy about the position where the mother has requested a caesarean section. It was put to Mr Tufnell by Mr Glancy that the request for a caesarean section here should have been considered in the context of a “concatenation of circumstances of events which might herald future problems”. Mr Tufnell said that, in the end, fundamentally, if a woman requests a caesarean section and, as an obstetrician, you have been through with her the risks and explained what the procedure involves and explained to her that everything is ok but she still insists that she wants a caesarean section, then they would do a caesarean section and, on the overwhelming balance of probabilities this would lead to the baby being born in good condition. However, he said that this was also the overwhelming balance of probability if you proceed with a normal vaginal delivery and he endorsed the evidence of Mr Christopoulos that “There wouldn’t be a material difference”. Again, I put to Mr Tufnell the following question:

“I understand Mr Forbes to be saying that with the history of thick meconium, and with the history of CTG abnormalities, even though the baby was fine at that moment – when the FBS was done - nevertheless the history meant there was enhanced risk. It may have been a small enhanced risk, but, nevertheless, an enhanced risk of continuing with the labour by virtue of what had happened before, which the mother was entitled to know about in relation to her request for a caesarean section. I think that’s what Mr Forbes is saying.”

To this Mr Tufnell responded:

“Well, my response is that, having had the normal fetal blood sample, with continued fetal monitoring the evidence would not suggest that the baby was at an increased risk compared to caesarean section. So, to put it a different way round, I don’t think there is evidence that doing a caesarean section at that point would have made it more likely that the baby was going to be healthy than continuing with the labour.”

Mr Tufnell said that as long as they continued to monitor the baby and do fetal blood samples as and when necessary, to ensure that the baby was not getting acidotic. He considered that there was no enhanced risk in continuing with the labour.

Discussion

[86]It seems to me that there are two principal issues for me to decide in determining the outcome of this claim. First, I must resolve the conflict of evidence between SL and Mr Christopoulos in relation to the circumstances of the request for a caesarean section and what was said and done in response to it. Secondly, I must resolve the conflict of expert opinion between Mr Forbes and Mr Tufnell in relation to the advice that should have been given to SL and the proper response of the hospital to her request for a caesarean section, particularly in the light of the previous CTG abnormalities and the presence of thick meconium indicating oligohydramnios. In relation to the first issue, the evidence left me in no doubt that when SL said “why don’t you chop me now what are you waiting for?” this was the result exclusively of the pain which she was feeling at that stage and was not because of her ongoing concern about the wellbeing of her baby. There are many reasons which lead me to that conclusion. First, there are the terms of the request itself: the expression “Why don’t you chop me now” is not the kind of remark which would be made by a woman who is requesting a caesarean section out of a considered concern for her baby’s wellbeing. Indeed, SL when she made her statement of 1 November 2010 herself recognised that she was less than coherent at this stage, saying:

“At 11.30am I was given an epidural and after about 20 minutes I felt much more coherent and relaxed as the pain disappeared …”

. Secondly, this would have been an extraordinary time for SL to be making a request for a caesarean section out of concern for her baby’s wellbeing when it was immediately after she had been given the results of a fetal blood sample which were wholly reassuring in relation to her baby’s wellbeing. Thirdly, in her letter of complaint to the Chief Executive of the Defendant Trust written on 7 April 2010, SL only mentioned pain as the motivating factor for her request, saying:

“They said the results were 7.25 which they said was average so they were going to proceed with a natural delivery. At this point I was in extreme pain and said, ‘Please, just chop me, what are you waiting for?’ meaning I wanted a caesarean section.”

In my judgment, it is of significance that the only premise stated by SL before her indication that she wanted a caesarean section was that she was in extreme pain. She did not mention concern for fetal wellbeing at that stage. I note that, in her statement dated 1 November 2010, disclosed in the course of her evidence, SL had used the same expression at paragraph 12 as she had in her letter of 7 April 2010:

“At this point I was in extreme pain and remember saying, ‘Please, just chop me, what are you waiting for?’.”

Fourthly, there is no doubt that SL was indeed in extreme pain at that stage: an epidural was arranged and this is the strongest form of pain relief available to an obstetric unit. Fifthly, as SL said in her statement of 1 November 2010, once she had been given the epidural she felt much more coherent and relaxed and:

“I started talking and joking with my husband and sister.”

In my judgment, this is not only probably true but inconsistent with SL having ongoing concerns about the wellbeing of her baby. If that had been the reason for her request for a caesarean section, it is difficult to understand how relief of her pain would have alleviated those concerns so that she was now talking and joking with her husband and sister.

[87]Furthermore, I have to say that I was unconvinced by SL’s evidence given in the witness box. I refer to the cross-examination of SL set out at paragraphs 56 and 57 above. My impression was that SL was claiming to have a much better recollection of what was said than she actually had and that what she was saying didn’t make sense given the context in which the discussions would have taken place. When the decision was taken to take a fetal blood sample, I have no doubt that it would have been explained carefully to SL and her family why they were doing that, not just the process of taking the FBS but the purpose in doing so and therefore the possible options depending on the result. It seems inevitable that SL would have been told that if the results were abnormal and the baby was found to be acidotic, then there would be thinking in terms of converting to caesarean section. If, however, the results were normal, then they would continue to monitor as they had been doing but that the labour could continue, subject to addressing the issue of pain relief. I was also concerned that the part of the original statement of 1 November 2010 where SL had referred to her husband telling Dr Christopoulos that she had a narrow pubic arch had been omitted from her witness statement for the purposes of the proceedings. SL was not able to give a coherent explanation for this and I had the impression that her evidence was geared to what she needed to say in order for the claim to succeed rather than being a wholly faithful account of the events as she remembered them.

[88]In contrast, I was wholly convinced by the evidence of Mr Christopoulos who gave his evidence in a straightforward way and who came across to me as someone who was totally honest and accurate in his recollection and reconstruction of the events of that morning. Whilst Mr Christopoulos could not remember specifically the discussion before the fetal blood sample was taken (and this is hardly surprising), he said that, by reference to his standard practice, he would have explained the test, what it involved, why they were doing it and the management thereafter which would have included abandonment of the plan for normal vaginal delivery and converting to caesarean section if the result was abnormally low. This made complete sense and I have no doubt it was true. He also said that, having informed SL of the result, they would continue with the labour and that they would continue to monitor the baby as before. He said that in response to SL’s comment: “Why don’t you chop me up now” he would have informed SL of the risks of caesarean section. He said that he did not simply dismiss the request but would have discussed the remark and explained that ML’s condition was normal and the labour was proceeding well. In this regard, I have no hesitation in preferring Mr Christopoulos’ evidence to that of SL. I also accept that, in the post-natal discussion, Mr Christopoulos had not made an admission that he had refused SL’s request for a caesarean section but, rather, had told her that she would have a choice in relation to any future pregnancy given that she now had a uterine scar. It may be, as Mr Forbes said, that this was an insensitive time to have that discussion given what had happened with ML but it may be that Mr Christopoulos felt that it might in some way be reassuring for SL at that time given the circumstances. Mr Christopoulos came across to me as a caring and sensitive doctor who would have treated SL, and all his patients, with consideration and sensitivity.

[89]Furthermore, I’m fortified in my conclusion that SL’s request for a caesarean section was because of pain by the evidence of both Mr Mascarenhas and Midwife Kaka-Are. So far as Midwife Kaka-Are was concerned, she was a most impressive witness and I was also impressed by her note-making and general approach as a midwife. I have no doubt that had she thought that there had been a request for a caesarean section which had been peremptorily dismissed, she would, in her perceived role as an advocate for the mother, have raised this with the Midwife-in-Charge and indeed with the consultant Mr Mascarenhas. She would also have made a careful note in the medical records. None of these things happened. Even if the request was made whilst Midwife Kaka-Are was out of the room obtaining the result of the fetal blood sample, I have no doubt that, given the relationship she had built up with SL and the family, she would have learned of the request, she would have learned of the suggested response of Mr Christopoulos and she would have done something about it. So far as Mr Mascarenhas is concerned, he could not recall Mr Christopoulos speaking to him about the matter but I accepted his evidence that, where a woman in labour has asked for a caesarean section because she is in pain, this would be relayed to him as the consultant in the normal course of events, and that the usual response would be to deal with the pain and review the matter at that stage. It was, of course, disappointing that no note had been made in the medical records by either Mr Christopoulos or Mr Mascarenhas about this matter but it is understandable, if not excusable, that, on a busy obstetric unit, this might have been overlooked. Despite the lack of a note, I fully accept the evidence as given by Mr Christopoulos, Mr Mascarenhas and Midwife Kaka-Are as set out earlier in this judgment.

[90]Before leaving this issue, I should say something about the duty of a hospital where a woman requests a caesarean section. It seems to me there is the world of difference between a woman who requests a caesarean section in the ante-natal period and a woman who requests a caesarean section in the throes of labour pain. In the former situation which, as it seems to me, the NICE guidelines are intended to address, such a request needs to be considered carefully and fully by the obstetric staff with the risks and benefits being fully discussed and with time for thought and reflection being given. If, after such discussion and appropriate advice, a woman nevertheless states that she wishes to have a caesarean section, then, as Mr Tufnell conceded, she would be entitled to have one. However, the situation seems to me to be quite different where a woman is in labour and in extreme pain. As Midwife Kaka-Are and the doctors confirmed, such a request is frequently heard and is more a cry for help because of the pain. In those circumstances, the appropriate response, as here, is to deal with the pain and then review the matter and see whether the request was or was not “serious”. By that I do not intend to suggest that any request for a caesarean section is not serious but an obstetrician or a midwife would be failing in their duty to both mother and baby if they simply took every such request at face value without exploring and addressing the underlying reason. I regard it as significant that, in her statement of 1 November 2010, SL referred to feeling “Much more coherent” after she had been given the epidural. This is a tacit admission that, before the epidural and given the pain she was in, she was less than coherent and I suspect this will be the case for many women undergoing labour for the first time or, indeed, not for the first time. It would in fact be impossible to have the kind of discussion of risk and benefit envisaged by Mr Forbes and the NICE guidelines with a woman who is not wholly coherent and thinking straightforwardly and logically because of the extreme pain she was in and it could be regarded as irresponsible for a midwife or obstetrician to attempt to have such a discussion with a woman before her pain had been addressed. It seems to me that this situation is qualitatively different to the situation in the ante-natal clinic where a request for a caesarean section is made.

[91]I turn to the second issue, namely the dispute between Mr Forbes and Mr Tufnell. Whilst these are both obstetricians for whom I have greatest respect, on this occasion I have no hesitation in preferring the evidence of Mr Tufnell. Despite the designation of this labour as high risk and despite the CTG abnormalities and the presence of thick meconium, I do not consider that there was a time prior to the terminal bradycardia at the end of labour when there was any obligation on the hospital staff to raise with SL the question of caesarean section because of concern over fetal wellbeing. I accept Mr Tufnell’s evidence that CTG abnormalities such as decelerations and meconium are poor predictors for what happened in this case and that the reason why CTG monitoring is undertaken is, except in the extreme case of a terminal bradycardia where the fetal heartrate falls to below 100 bpm and never recovers, generally decelerations or other fetal heartrate abnormalities give the obstetric team an indication to carry out fetal blood sampling in order to determine the baby’s wellbeing. Blood taken directly from the baby and measured is a much more definitive test and indicator of fetal wellbeing than a CTG and if, because the heartrate has recovered to the base line, there is time to carry out fetal blood sampling, then this should be done, assuming that the mother consents. When the result, as here, is normal, this is a clear indication that there is no need to change the existing management plan as long as the monitoring continues and further fetal blood samples are taken as indicated.

[92]As Mr Tufnell said in his evidence, when the fetal blood sample result was known at 10.50, there was every reason to think that this labour was going to proceed to a successful conclusion and there was no need for a change in management. Thus, there had been good progress in terms of cervical dilatation, the cervix now being 8cm dilated when previously it had been 4cm dilated and was therefore moving towards full dilatation (10cm) and the second stage of labour. Furthermore, the baby’s head had descended so that it was now mid-cavity and progressing. Clearly, Midwife Kaka-Are thought that progress was good because she started to prepare the room for delivery and with reassurances to the baby’s wellbeing from the fetal blood sample, it would have appeared to the medical team it was “all systems go”. As Mr Tufnell said, it would have been an extraordinary point to start discussing with SL a change of plan and in my judgment Mr Tufnell was right to suggest that SL’s request for a caesarean section made no difference in this context. As I have already said, the response to that was appropriately to address SL’s pain and then revisit the issue should SL have remained unhappy about the situation and was still requesting a caesarean section. There is no indication that she did: on the contrary, she was happy once her pain had been addressed and was able to talk and joke normally with her husband. What then happened was dreadful, an appalling calamity, and I have every sympathy for ML, SL and all the family that what should have been a joyous outcome has ended so tragically. However, I am convinced that this was not something which the hospital could or should reasonably have avoided, that the decision-making processes were in accordance with normal obstetric practice at each stage and that the outcome was not the result of any breach of duty on the part of the hospital.

[93]In the circumstances, the claim must be dismissed.