Abstract
The Claimant was born at 21:55 on 26 October 1987 at Sandwell Maternity Hospital. The antenatal history was uneventful. Mrs L was admitted to the labour ward at 17:30, and a CTG trace obtained at 18:45 indicated that the Claimant was well-oxygenated and in good condition. An artificial rupture of membranes (ARM) was performed at 21:20 and a fetal scalp electrode (FSE) then applied, from which a trace was obtained at 21:22. Events in the subsequent 33 minutes gave rise to this claim.
CJL was born by spontaneous vaginal delivery, the umbilical cord being wrapped twice around his neck very tightly. He was in poor condition and now suffers from cerebral palsy. It was common ground that his brain damage was caused by an acute profound hypoxic-ischaemic insult at the end of labour, probably as a result of cord occlusion as his head descended the birth canal. It was recorded that at 1 minute of age, i.e. 21:56, his heart rate had recovered to above 100 beats per minute (bpm), and that this signalled the end of the hypoxic insult.
The expert paediatric neurologists agreed that had CJL been delivered by 21:46 (and thus been effectively resuscitated by 21:47) the brain injury would have been avoided. Had he been delivered by 21:50, a mild degree of brain damage would have been unavoidable, such that he would have been mobile but clumsy, yet with full preservation of intellect. The bulk of the damage occurred subsequent to 21:50.
It was common ground that the on-call obstetrician should have been summoned by the midwives, and should have arrived within 5 minutes. In fact, he arrived after the Claimant was born. The Health Authority accepted that this amounted to a breach of duty. The two main issues in the case were: (1) when the call to the obstetrician ought to have been made – the Claimant argued for 21:33 and the Defendant for 21:35; and (2) if the obstetrician had arrived on time, when the Claimant would have been delivered. The Claimant argued for 21:47, whereas the Defendant maintained that earlier delivery would not in fact have been achieved.
The senior midwife involved in the case, Mrs Kirkpatrick, had since died. A second, who was chiefly involved in the events, had not been traced. A third was available and gave evidence, but this added little to the contemporaneous records.
As to the precise sequence of events, at 21:24 there was recorded the first of five decelerations. This was to about 65 bpm, recovering to about 130 bpm. Oxygen was administered. Shortly afterwards the second occurred, to 75 bpm, recovering to nearly 150 bpm. Further oxygen was given and the mother turned on her side.
The third deceleration happened at 21:26, the printout descending to 70 bpm and recovering more slowly to 100 bpm. This lasted nearly a full minute. The fourth took place at 21:28, recovering to 100 bpm but then the trace descended again to 65 bpm. There was no interval between the fourth and the fifth decelerations, the latter starting at 21:29 with the trace descending to 65 bpm. At this point the printout ceased and a new FSE was inserted at 21:32. The senior midwife, Mrs Kirkpatrick, was called.
The CTG recommenced at 21:32 and continued intermittently until 21:38. The final reading was between 70 and 80 bpm.
At 21:39, the presenting part was ‘advancing well rim easily pushed back’; and at 21:40 there was full dilatation. The midwives were using an abdominal transducer during this period to record the fetal heart rate, and this varied from 75 bpm to 110 bpm between 21:37 and 21:46. However, at 21:47 it reached 180–190 bpm.
The consultant obstetrician had been called, but the records did not show precisely when. The expert midwives (Angela Helleur for the Claimant and Susan Brydon for the Health Authority) agreed that the call should not have been made later than 21:35. Held: the call was indeed made at about 21:35.
In the absence of the obstetrician at 21:55, the senior midwife delivered the Claimant and then resuscitated him, before any doctors had arrived.
Angela Helluer was of the view that since no reading could be obtained from the FSE at 21:32, medical assistance should have been summoned at 21:33. Sue Brydon took the view that the CTG was completely normal until approximately 21:20, and that it was not until 21:35 that the midwife was unable to confirm fetal wellbeing. She resisted cross-examination to the effect that 21:33 was the appropriate time, because in her opinion it was not necessary to summon a doctor at this point, it not being appropriate for midwives to call for medical assistance ‘just in case’.
Held: Ms Brydon's approach represented a responsible and reasonable standard. Ms Helleur's views were also reasonable. However, it was not necessary to prefer one to the other. Had it been necessary, on balance the opinion of Ms Brydon would have been accepted. Given the conclusion that medical assistance was not required before 21:35, there was no breach of duty by the attending midwives.
The only breach of duty arose from failure by the obstetrician to attend when called. Given the agreement between the parties that it should reasonably have taken no longer than 5 minutes for the obstetrician to have materialized, it must be taken that he should have arrived at 21:40.
The expert obstetric evidence was provided by Mr Gerry Jarvis for the Claimant and Mr John Spencer for the Health Authority. The former considered that a bradycardia had commenced at about 21:36, whereas Mr Spencer suggested 21:38. Both agreed that this constituted an obstetric emergency, making it imperative that delivery be achieved as soon as possible.
Held: a reasonably competent obstetrician who had arrived at 21:40 should have reached the same conclusion.
There was a dispute between the experts as to how long it would have taken for delivery to have been achieved by an obstetrician arriving at 21:40. Mr Spencer considered that preparations would have taken 5 minutes and delivery a further 5, bringing the time to 21:50. Mr Jarvis argued for 21:44.
Mr Spencer responded by listing the steps which would have been needed in order to bring about an emergency delivery:
Informed verbal consent; Positioning of the legs; Preparations by the midwives; Sterile preparations; Cleaning and draping of perineum; Catheterization; Application of local anaesthesia; Application of forceps to baby's head; Awaiting the next uterine contraction to commence traction; Traction during each successive contraction until head brought to perineum; Episiotomy cut; Final traction for delivery; Cutting the umbilical cord.
Held: The academic articles cited by the respective experts were unhelpful, because they were all post 1987. However, on balance, the relevant period would have been short because the Claimant's head was in the commonest position, which is mechanically the most favourable for delivery, and at 21:39 he was described as ‘advancing well’. The CTG trace, which the obstetrician arriving at 21:40 would have had to consider, was however not straightforward. A reasonably competent obstetrician would have been entitled to some moments of thought and discussion with midwives. Such an obstetrician would have taken three minutes to reach the decision to intervene, including the vaginal examination. At 21:43, having reached the decision to intervene, would have been ready to apply traction no later than five minutes after arrival (i.e. by 21:45). It is possible that only one contraction would have been required to achieve delivery, but it was more likely than not that two would have been needed, adding a further four minutes. So, on the balance of probabilities, the Claimant should have been delivered at 21:49 and resuscitated at 21:50, i.e. six minutes earlier than actually happened.
Simeon Maskrey QC (instructed by Irwin Mitchell) appeared for the Claimant. Michael de Navarro QC and Anastasia Karseras (instructed by Barlow, Lyde and Gilbert) appeared for the Health Authority.
Comment
This ruling that CJL should have been born six minutes earlier than he actually was signifies, based upon the agreed evidence of the paediatric neurologists, not a 100% recovery of damages but fairly close to that. In other words, birth would have had to have occurred by 21:46 for all brain damage to have been avoided. Birth at 21:50 would have meant that mild brain damage was unavoidable. It is now for the parties to agree precisely what birth at 21:49 might mean in terms of a reduction in damages.
This ruling once again demonstrates how critical minutes can be in obstetric (as indeed in other) emergencies. A saving of only nine minutes would have meant that the baby would have been born without any brain damage. Indeed, the bulk of the damage occurred in just five minutes between 21:50 and 21:55. In such brief spans, lives are irrevocably changed.