Reclaiming Motion By Jill Clark (ap) Against Greater Glasgow Health Board

JurisdictionScotland
JudgeLord Brodie,Lord President,Lord Glennie
Judgment Date01 February 2017
Neutral Citation[2017] CSIH 17
CourtCourt of Session
Date01 February 2017
Published date21 February 2017
Docket NumberA605/05

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 17

A605/05

Lord President

Lord Brodie

Lord Glennie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motion by

JILL CLARK (A.P.)

Pursuer and Reclaimer

against

GREATER GLASGOW HEALTH BOARD

Defenders and Respondents

Pursuer: A Smith QC; Drummond Miller LLP

Defenders: CHS MacNeill QC, PM Stuart; NHS Scotland Central Legal Office

1 February 2017

Introduction
[1] This is a reclaiming motion (appeal) against the Lord Ordinary’s interlocutor of 12 February 2016 assoilzing the defenders in respect of the acts of their employees, notably a Dr Umstad and the midwifery staff at the Queen Mother’s Maternity Hospital, Yorkhill, during the labour of the pursuer’s mother, on 2 March 1992. However, the issue which the pursuer seeks to raise does not directly concern that interlocutor. The pursuer wants the court to review the Lord Ordinary’s earlier interlocutor of 18 December 2015, which refused to allow receipt of a Minute of Amendment after proof but before judgment. The Minute sought to introduce a claim of negligence on the part of a Professor Whitfield and other medical staff, including Dr Umstad, at Yorkhill when they saw the pursuer’s mother on, it is averred, 29 November 1992 and thereafter up until the rupture of the pursuer’s mother’s uterus during labour.

[2] The pursuer was granted leave to reclaim that interlocutor, but did not do so. The issues are whether the court should allow a challenge to that interlocutor now and, if so, whether there is a sound basis upon which to interfere with it.

Procedure
[3] The action was raised in September 2005, over 13 years after the pursuer’s birth. It was almost immediately sisted by the pursuer for investigations. The sist continued until November 2011 (over 6 years). Had the case progressed at a reasonable pace, it ought to have been concluded in the Outer House long before even the latter date. On 16 February 2012, it was appointed to a Procedure Roll debate in October 2012. Shortly before that, the pursuer lodged a Minute of Amendment. After the amendment process, a proof before answer was allowed and the normal timetable was set for the exchange of expert reports, witness lists and valuations. A pre-proof meeting was scheduled for 14 November 2014. The proof, which lasted 21 days, commenced on 6 January 2015. On 4 February 2015, the pursuer amended the conclusion by increasing the sum sued for tenfold from £1.5m to £15m. The proof concluded on 18 February 2015, when the Lord Ordinary made avizandum.

The Pursuer’s Averments on Record
[4] The pursuer’s mother had had a child by emergency caesarean section in 1990. On 29 November 1992 (sic 1991), when she was about 28 weeks pregnant with her second child, namely the pursuer, she had a pre-natal meeting with Prof Whitfield. He made a note, as follows:

“X-ray pelvimetry reveals small measurements, but with good uterine action and a not large baby not ‘impossible’. Reassess later (? 38/7 and see X-rays) probably allow labour”.

An additional note said: “Allow labour but watch for non-rotation of occiput.”

[5] At 7.10pm on 1 March 1992, the pursuer’s mother was admitted to the labour suite of the Hospital. At 9.50pm she was reviewed by a Dr Scott, who carried out a vaginal examination. At about 10.10pm, her nursing care was taken over by a student midwife. At about 11.00pm, the registrar, namely Dr Umstad, recommended that a Syntocinon infusion be “carefully” commenced, although it was not administered at that stage. At 00.10am a second vaginal examination took place. Dr Umstad saw the pursuer at about 1.00am and instructed the commencement of Syntocinon, which then occurred. It was well recognised that the use of Syntocinon in parous women, such as the pursuer’s mother, carried a serious risk of over stimulation of the uterus and consequent rupture. The risks were greater in a woman who had a previous uterine scar. The fact that she had previously had a caesarean section, and Prof Whitfield’s note that the pelvic capacity might be suspect, were factors which had been identified as making labour a process to be undertaken with care.

[6] By 2.00am the Syntocinon had been increased to the maximum dose. It caused the pursuer’s mother to suffer a ruptured uterus at about 3.45am. She required to undergo an emergency caesarean section. The pursuer was delivered at about 4.10am. She had suffered sustained acute profound asphyxia caused by the uterine rupture. It resulted in severe athetoid cerebral palsy.

[7] The averments of fault focused first on the negligence of Dr Umstad in instructing the administration of Syntocinon at 1.05am. If it had been appropriate to commence Syntocinon, he had failed to put a management plan in place. He had failed to review progress from 00.10am until about 3.45am and in particular had failed to carry out, or to instruct a midwife to carry out, a vaginal assessment at about 2.00am and at about 3.05am. The Syntocinon infusion ought to have been suspended while such assessments took place.

[8] The averments secondly focused on the fault of the midwifery staff. The midwife in charge had failed to allocate a qualified midwife to supervise the student midwife. The midwives, like the registrar, knew or ought to have known of the risks caused by the use of Syntocinon and that the labour was to be undertaken with care. They ought to have stopped or reduced the Syntocinon and sought review by a more senior midwife, or a member of the medical staff, at or around 3.05am.

The Proof
[9] At the proof, the Lord Ordinary heard evidence from the pursuer’s mother and father, the senior sister midwife, another sister midwife, a tutor of the student midwife, and experts in obstetrics (Dr Milne) and midwifery (Dr Whitford) for the pursuer.
Dr Umstad, who flew in from Melbourne, was called for the defenders. An expert obstetrician (Prof Murphy) was also adduced. Prof Whitfield, who was 88 at the time of the proof, did not give evidence. It was explained at the hearing of the reclaiming motion that he was suffering from dementia. The student midwife had been killed in a road traffic accident in 2013.

[10] The Lord Ordinary’s findings were contained in an opinion which accompanied his interlocutor assoilzing the defenders dated 12 February 2016. The pursuer’s mother’s initial booking records, completed by Prof Whitfield, were dated 16 and 20 August 1991 (not, as averred, 29 November 1992). They record, in red ballpoint, the decision averred (supra) to “probably allow labour”. A letter written to the pursuer’s mother’s GP at that time stated that Prof Whitfield considered that the “relatively small pelvis” was not an “absolute bar to a trial of labour”. He thought that “there is a reasonable if optimistic chance that labour and delivery may be normal”. Significantly, for present purposes, he then wrote:

“I do not think that we should avoid that chance and she and her husband are in complete agreement with that.”

A later clinical assessment of the pelvis was anticipated. The principal of the letter, recovered from the GP’s files, contains handwritten corrections to the typescript and a postscript as follows:

“I have now seen the X-ray films, & still consider we should allow labour, but intervene (c/section) of course if there is a significant ‘hold up’.”

Again of importance for present purposes, the pursuer’s mother had 8 more ante-natal hospital attendances prior to 1 March 1992.

[11] The Lord Ordinary found that Dr Umstad, who was the registrar with responsibility for the pursuer’s care once he had seen her, for the first time, at 10.00pm on 1 March 1992, had correctly interpreted Prof Whitfield’s advice. With hindsight, spontaneous vaginal delivery would have been unlikely, but that was not known at the time and “no fault attaches”. The case against Dr Umstad failed. His decision to augment the labour with Syntocinon had been within the range of responsible treatment options.

[12] The Lord Ordinary found that the permitted regime had been carefully implemented by the student midwife. The pursuer’s case had to be that the rupture had occurred as a result of overstimulation after 3.05am. The Lord Ordinary’s conclusion was that there was no hyper stimulation of the uterus at any time and no basis for inferring that it had occurred during the period leading up to the rupture at 3.45am. The case against the midwives had not been made out. It was not supported by the pursuer’s own expert.

[13] The Lord Ordinary, applying the test in Hunter v Hanley 1955 SC 200, concluded that there had been no breach of duty by the midwifery or obstetric staff. Prof Whitfield’s labour plan had been a reasonable one and the labour had been managed responsibly in accordance with the plan.

[14] It was recognised that there was an increased risk of uterine rupture where there had been a previous caesarean section. However, it was very low (3.5 per 1,000 for vaginal birth after caesarean (VBAC) versus 1.2 for 1,000 elective repeat caesarean section (ERCS)). The consensus view in the US and UK was that vaginal birth should be encouraged because caesarean section carried its own risks. In particular, the risk of maternal death was increased.

[15] The Lord Ordinary had offered the pursuer the opportunity to re-cross Dr Umstad on birth plan options under reservation, but the evidence turned out to be “uncontroversial”. He held that uterine rupture was a very rare complication overall and a very slightly less rare complication of VBAC, though not necessarily in high volume centres of excellence. He determined that he was not in a position to make a finding about any association between augmentation with Syntocinon and uterine rupture in VBAC, still less about any causal connection.

Minute of Amendment
[16] In March 2015, after the proof had closed, but in advance of the Lord Ordinary’s decision
...

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