Abstract
Karen Addison was admitted to the delivery suite of the South Tyneside District Hospital at about 00:33 on 1 March 1996. She was 36.5 weeks pregnant. Her membranes had ruptured.
At 03:35, her son was delivered by Caesarean section. He was not breathing and had no discernible heartbeat. He was resuscitated. During delivery he had been deprived of oxygen owing to a prolapsed umbilical cord. He now suffers from severe dyskinetic cerebral palsy.
It was alleged against the Trust that the consultant anaesthetist, Dr Kumar, was negligently slow in reaching theatre. It was also claimed that the anaesthetic process should have taken no more than five minutes, and that there was an unexplained delay of 12 minutes which led directly to the child's injuries.
Dr Kumar was a locum anaesthetist and had not been traced. There was therefore no evidence from him before the court, save by way of entries he had made on the anaesthetic record. No allegations were made against the midwives, obstetricians or paediatricians. The only factual anaesthetic evidence came from Dr Alford, currently a general practitioner but at the time a senior house officer in anaesthetics.
On arrival in hospital, Ms Addison was not in labour. However, at some point after 01:50 (the exact time is unclear) she suffered a prolapsed cord, whereupon the attending midwife summoned emergency help. The senior midwife arrived, and she and others assisted in pushing the bed into the delivery suite. The on-call obstetrician, paediatrician and anaesthetists were alerted. A CTG trace was commenced at 03:17 to ascertain if the fetus was still alive. Preparations for emergency Caesarean section commenced.
Dr Esen, senior registrar in obstetrics, arrived at about 03:15. In a note which he made at 04:30 the same day, Dr Esen stated ‘03:15… awaiting arrival of anaesthetist and ODA/Paeds’ Section was commenced at 03:32 and the baby delivered at 03:35.
Dr Esen explained that circa 15 minutes between his arrival and incision was not long. He pointed out that it was well within the national guideline of 30 minutes, and maintained that there had been no delay. He could not recall precisely when Dr Kumar had arrived, but stated that his note had not intended to convey any period of culpable delay.
Dr Alford, anaesthetic SHO, was sleeping in the ‘on-call’ room of the staff residence. He estimated that from being summoned to arrival in the delivery suite it would have taken him about four minutes. There was no allegation that Dr Alford was late in arriving. Neither was there any record of when Dr Kumar reached the delivery suite. Dr Alford recollected that Dr Kumar was also staying in the staff residence, and he pointed out that irrespective of the consultant's presence, he himself would have commenced procedures for the administration of general anaesthetic. However, he would not have pre-oxygenated the patient because he was not permitted to do so save under the supervision of a consultant. Dr Alford had no recollection of any significant delay, and indeed stated that if the consultant had been late it would have been ‘a very frightening experience’ for him personally. Likewise, the midwives had no recollection of any significant delay in the arrival of the consultant anaesthetist.
The respective anaesthetic experts disagreed strongly as to the length of time required for each procedure. Dr Hutter, for the Claimant, argued that assessing the diagnosis, assessing the patient's history, allergies, and so on, and visually assessing and measuring the airway would take a combined time of two minutes. However, Dr Norman, for the Trust, said that these processes together would take between three and six minutes. Overall Dr Hutter's timings were significantly shorter than those of his opposite number.
Moreover, Dr Hutter asserted that the figure ‘8’ in the anaesthetic record represented eight litres of oxygen per minute, consistent with pre-oxygenation. He said that he did not know of any mainstream anaesthetist who would induce and maintain anaesthesia with 100% oxygen. However, in cross-examination, he was confronted with a paper published by the British Journal of Anaesthesia in 1990 which was entitled ‘Isoflurane with either 100% oxygen or 50% nitrous oxide in oxygen for Caesarean section’. One of the authors of this article was Dr Bogod, who was now a colleague of Dr Hutter's in Nottingham. Dr Hutter then ‘withdrew the opinion he had expressed so trenchantly only minutes before but qualified his withdrawal by adding the words: “I do not think it was mainstream practice”’.
It was also Dr Hutter who had highlighted the alleged unexplained delay in the records between 03:20 and 03:30 or 03:32, which led to the argument against the Trust that Dr Kumar had unreasonably delayed and that this was a breach of duty by the anaesthetist.
Held: Dr Hutter's opinion was simply untenable. His evidence ‘falls below the standard to be expected of an expert witness’. There was no record of when Dr Kumar had arrived in theatre, and the notes suggested that the consultant was taking an active part in anaesthetic procedures before pre-oxygenation, which on the balance of probabilities commenced before 03:25. The judge continued: ‘in his evidence [Dr Hutter] constantly referred to the timings he and his team could achieve. He seemed to me to be incapable of separating the concept of what might reasonably be expected of an anaesthetist (and hence not negligent) and what he might expect from himself with his own team on a good day when everything went well. In my judgment that is what his timings represent.’
The judge noted that a working party of the Royal College of Obstetricians and Gynaecologists in 1994 did not suggest that there was a special rule, in terms of anaesthetic cover, for emergency Caesarean sections. The paper produced by the working party stated that the anaesthetic response time in cases of Caesarean section should be such that section could be started ‘within 20–30 minutes of the clinical decision to proceed’. Dr Hutter's opinion ignored this guidance.
The Trust's independent obstetric expert, Mr Derek Tuffnell, indicated that a standard of 30 minutes between informing the anaesthetist and start of the operative delivery was generally considered to be appropriate for emergency Caesarean sections, although he conceded that there was little evidence to support that recommendation. However, an article by Mackenzie and Cooke, published in the British Medical Journal in 2001, reported that at the John Radcliffe Hospital in Oxford, in 1996, fewer than 50% of babies were born within the 30-minute period.
It was absolutely plain that in 1996, the recommended delivery time for an emergency Caesarean section was 30 minutes. That standard was quite often not met. Failure to achieve that standard was not considered negligent by professionals. Dr Hutter's expressed opinion was wrong.
None of the factual witnesses had any recollection of there being any significant or culpable delay in the arrival of Dr Kumar. Dr Hutter's evidence could not be relied upon. Consequently, the allegations of negligence had not been made out and there would therefore be judgment for the Claimant.
Martin Spencer QC (instructed by Hay & Kilner) represented the Claimant. Stephen Miller QC (instructed by Ward Hadaway) represented the Defendant.
Comment
This was a case in which the absence of a key factual witness enabled the Claimant's advisers to put together a case which criticized that individual's performance. However, the factual evidence did not support such criticism. Rather, the Claimant's anaesthetic expert was very much out on a limb. His views did not coincide with mainstream professional thinking in 1996, and indeed his opinion was criticized as being ‘quite simply wrong’ by the judge. Culpable delay had not been proven, and the practice of the clinicians was fully in accordance with a reasonable body of medical opinion in 1996. In other words the Bolam defence had been made out.