Marjory Campbell V. Borders Health Board
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Neutral Citation | [2011] CSOH 73 |
| Court | Court of Session |
| Published date | 05 May 2011 |
| Year | 2011 |
| Date | 05 May 2011 |
| Docket Number | A394/07 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 73 | |
| A394/07 | OPINION OF LORD MENZIES in the cause M.C. (A.P.) Pursuer; against BORDERS HEALTH BOARD Defenders: ________________ |
Pursuer: O'Brien QC; Speir; Morisons LLP (for Messrs Bannerman Burke, Solicitors, Hawick)
Defender: Ferguson QC; Haldane QC; NHS Central Legal Office
5 May 2011
Introduction
[1] The pursuer lives in Galashiels with her husband and their son N, Mr and Mrs C were married in 1991. In 1997 the pursuer became pregnant. This was her first pregnancy. An early ultrasound scan estimated the date of delivery of her baby as 18 November 1997. No material medical complications were apparent during the course of her pregnancy. She had no significant past medical history and no family history of genetic or neurological disorders. She did not smoke or drink.
[2] On 22 November 1997 the pursuer went into the early stages of labour. At 9.16 pm on that day the pursuer telephoned Borders General Hospital ("BGH") and spoke to a midwife. The contents of this telephone conversation ("the first call") remain in dispute between the parties. The pursuer remained at home after this call. Thereafter she began to experience increasing discomfort and pain. At 3.08 am on 23 November 1997 she made another telephone call to BGH ("the second call"). She spoke to a different midwife on this occasion. Again the contents of this conversation are in dispute between the parties. The pursuer remained at home after this call. At 4.42 am on 23 November 1997 the pursuer made a third telephone call to BGH, and spoke again to the same midwife as the midwife who took the call at 3.08 am. Very shortly after this third call, Mr C drove the pursuer to BGH, where she was admitted at about 5.45 am. She was noted to be draining meconium stained amniotic fluid. A cardiotocograph (CTG) was abnormal, showing a raised fetal heart base line and a variable deceleration. She was transferred to the labour ward where she was seen by Dr Faye Rodger, an obstetrician, at about 6 am or 6.10 am. After Dr Rodger had had a telephone discussion with a consultant, at 6.20 am she decided that the pursuer should have an emergency caesarean section. At about 6.50 am the pursuer was transferred to the operating theatre, and at 7.20 am N. was delivered by caesarean section. N. has subsequently been diagnosed as suffering from spastic tetraplegic cerebral palsy and neo-natal encephalopathy.
[3] In the present action the pursuer, as parent and guardian of N., seeks damages from the defenders. She avers four grounds of fault and negligence - first, fault of the midwife who took the first call; second, fault of the midwife who took the second call; third, fault of the obstetrician Dr Rodger; and fourth, fault of the defenders in failing to operate and maintain a proper system. The defenders deny liability. The matter came before me for proof before answer. Parties were agreed that at this stage proof should be confined to the issue of negligence, and that issues of causation and quantum should be dealt with (if necessary) at a later stage.
The evidence
[4] I heard evidence from nine witnesses. In addition, a joint minute was lodged (No. 25 of process).
[5] The pursuer stated that in 1997 she was living with her husband at an address in Hawick. This was her first pregnancy; it was uneventful. She had routine attendances with her general practitioner and the nurse at the GP practice, and she also attended at BGH for antenatal visits and classes. She had no relatives with any genetic disorder. She attended for her first ultrasound scan at about sixteen weeks and was told that there was no cause for concern. In October 1997 she attended at BGH because her blood pressure was raised, but she was not required to stay overnight, and she was sent home having been told that everything was fine. She was told that it was anticipated that her baby would be born on about 18 November 1997.
[6] That date passed without incident, and there were no signs of her going into labour for some days thereafter. On Saturday 22 November she had a normal day; she went shopping, and she felt fine. In the evening she was sitting at home watching television. At about 9 pm she went to the bathroom. Having passed water, she noticed some green sticky stuff on the toilet tissue, so she telephoned BGH. This was the first call. She thought that she had the telephone number handy, because she was organised for going into hospital. She thought that she had dialled the general switchboard first and was put through to the labour ward. She told the lady at the other end who she was, that she had been to the toilet, and she had noticed this green sticky stuff. The lady told her that it was a show, and anything could happen in the course of the next week. She did not remember the lady asking any questions. Her husband was in the same room when she was telephoning, and he said that he wanted to bring her into the hospital; the lady at the other end of the phone must have heard this, because she said that there was no point in coming in as they would not look at the pursuer. At this time the pursuer was not suffering any pain - it was only the presence of the green sticky stuff which caused her to telephone the hospital. Her husband was present throughout the call, which ended with the lady telling the pursuer that she should not come in, but if anything happened she should phone back. The pursuer assumed that the lady knew what she was talking about, although she was a bit disappointed as she thought that at last something was happening.
[7] At about 10 pm that evening the pursuer began to develop some pain in her back, which stretched down to the tops of her legs. It gradually grew worse as the night went on - it was not coming and going, but just getting worse and worse. She remembered walking about the house a lot and having the television switched on to distract her from the pain. She did not see any more of the green sticky stuff. Eventually at 3.08 am she telephoned the hospital again, because of the increasing pain in her back and at the tops of her legs; she wanted to find out if anything was going to happen. This was the second call. At the time she did not know if it was the same person that she had spoken to earlier, or not. She explained who she was and explained about the pain in her back and at the tops of her legs. The lady that she spoke to advised her quite a few times to go for a bath, but the lady was not keen for the pursuer to come into hospital, although she did say that she could come in if she wanted to. The pursuer thought that perhaps she was being a nuisance, so she "backed down" and took a bath. She did not remember being asked any questions, although she accepted that it was possible that this had happened. This call was longer than the first call, but still lasted under five minutes. She did not remember if she was asked during this call if there had been any fluid at any time, nor whether her waters had broken. On this occasion she did not volunteer any information about the green sticky stuff, because she had not seen any more of it.
[8] The pursuer's husband had gone to lie down and so was not present during the second call. The pursuer told him that she had phoned the hospital again, and he helped her into the bath. After the pursuer had taken a bath, she found that her pain had not eased at all; it was constant. She told her husband that she was going to telephone the hospital again, and he went out to borrow his father's car. The pursuer telephoned the hospital at 4.42 am, and said that her pain had not diminished and she was going to come into the hospital. Her pain was getting stronger and she was struggling to cope with it. Her husband arrived with the car shortly after she telephoned, and they drove immediately to the hospital, a distance of about 18 miles. They parked the car in the hospital car park, and walked quite a distance to the hospital; when they arrived at the main entrance a lady porter fetched a wheelchair, placed the pursuer in it, and took her in the lift to the area of the labour ward. She was taken to a small room; she stated that she felt quite damp underneath. A midwife (the pursuer thought that it was the same lady she had spoken to on the third call) put her on a bed, removed her tracksuit bottoms and examined her. The pursuer then returned to her wheelchair while remaining in the small room, and the midwife went out of the room for a time. The pursuer's husband came in, and the pursuer told him to get her suitcase from the car because she thought that she would be staying. The midwife then returned; the pursuer was very uncomfortable and did not remember the details of her conversation. She had heard of meconium, but she could not remember if it was mentioned at that time. She was then taken to another room, put in a bed, and a monitor was attached to her stomach to measure the baby's heartbeat. She was referred to her medical records (page 21 of No 7/1 of process) where it was stated that "On removing clothing fresh meconium noted on pad"; she did not remember this, but she agreed that it could be right. She did not remember anyone talking about meconium or leakage, nor did she think that she could have said that meconium had been draining for several hours. She was referred to page 26 of the notes, where a retrospective note dated 20/12/97 records that "On admission Marjorie told us that the meconium had been draining for several hours but she thought that this was a show and not abnormal". She totally disagreed with this record - she knew that she had not told them that meconium had been draining for several hours, and she had never told them that she had had a show - it was the lady who spoke to her at the first call who told her that it was a show.
[9] The pursuer remembered being told something about the baby's heartbeat being raised, and that the decision had...
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