Abstract
The Claimant was born on 11 October 1996 at 09:42 hours. Around 80 minutes prior to delivery, her mother complained of back pain while on the antenatal ward. A cardiotocograph (CTG) trace was commenced to check on fetal condition and the fetal heart rate was found to be 54 bpm. The treating midwives interpreted this as a potential emergency and arranged for immediate transfer to the labour ward.
On arrival, initial preparations were made to take the Claimant's mother to theatre for a Caesarean section. A CTG trace was then re-started at 08:43 hours. Although the fetal heart rate had improved to around 90–100 bpm, it was still outside the normal range and therefore an obstetric registrar was called. On arrival at 08:50 hours, the registrar was informed of the bradycardia on the antenatal ward and she reviewed the CTG trace. Over the next few minutes, the fetal heart improved further to a baseline of 120 bpm with normal variability and no decelerations.
In view of the improved CTG trace with normal baseline, no decelerations and acceptable variability, the registrar decided to observe for 20 minutes. She asked the midwives to call her back urgently if there was any change in the observations.
During the next 15 minutes or so, the fetal heart baseline began gradually to reduce to around 110 bpm, with occasional approaches towards 100 bpm. By 09:15 hours the baseline was about 100 bpm. A decision to deliver by Caesarean section was made at around 09:17 hours. The section was carried out within 25 minutes of the decision. At delivery, the Claimant was significantly depressed and required intensive resuscitation. She had gone on to develop cerebral palsy.
It was argued on behalf of the Claimant that the registrar should have been standing by on arrival at the labour ward and should then have decided to deliver by Caesarean section immediately following her assessment. It was further argued that the standard of resuscitation was negligent (although that allegation was not proceeded with at trial). It was the Claimant's case that delivery by Caesarean section within 30 minutes of the registrar's first assessment would have avoided all injury.
In the face of clear recovery of the CTG trace, the Defendant denied that the decision to wait was negligent. Further, the Defendant argued that the Claimant's brain injury was probably sustained before transfer to the labour ward in any event.
Held: (1) There was no breach of duty in failing to have a doctor in attendance on arrival at the labour ward. Such was not normal obstetric practice. (2) The decision to ‘wait and see’ was not negligent. Most obstetricians would have done the same. The literature confirms that in the face of a prolonged deceleration or abnormally low baseline, the first process is to try and find a cause and correct it. If the fetal heart rate returns rapidly to normal the placenta is effective in resuscitating the fetus; a low pH is usually rapidly corrected and, where the CTG recovers, fetal acidosis will do so too. (3) There was no delay in resuscitation and the failure to have a paediatrician present at the birth did not have any adverse effect upon the treatment. Indeed, the resuscitation was exemplary. (4) On the finest balance of probabilities the damage occurred during the bradycardia on the antenatal ward. Case dismissed.
Peter Andrews QC and Jonathan Jones (instructed by Anthony Collins) appeared for the Claimant. David Westcott QC (instructed by Bevan Brittan) appeared for the Trust.
Comment
This case turned largely on the obstetric expert evidence. The judge described Miss Tracey Johnston, called by the Trust, as ‘one of the most impressive expert witnesses I have heard over many years at the Bar and on the Bench. She gave her evidence thoughtfully and carefully… She is a leader in her field, and her credentials for expressing an opinion on these matters are impeccable.’ On the other hand, Judge MacDuff found Mr Bowen-Simpkins, called on behalf of the Claimant, ‘careless and unreliable… I judged that, in many instances, he was not attempting to assist the court, but to act as advocate and platform provider for the Claimant's case’. The judge also noted that this expert's CV stated: ‘Expertise… obstetrics (not intrapartum care)’, which raised the question of why he had accepted instructions in this case.