Gerrard v Royal Infirmary of Edinburgh NHS Trust [Court of Session InnerHouse Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 27 January 2005 |
| Date | 27 January 2005 |
| Docket Number | No 21 |
| Court | Court of Session |
Court of Session Inner House Extra Division
Lord Osborne, Lord Macfadyen, Lady Cosgrove
Reparation - Negligence - Medical negligence - Delay in decision to perform Caesarian section - Whether doctor negligent
Evidence - Opinion evidence - Assessment of competing medical evidence - Proper approach of appellate court to findings in fact - Use of medical textbooks in appeal
The pursuers' baby suffered asphyxia during labour and delivery and died soon after birth. He was the second born of twins. The first twin was born by normal vaginal delivery at 7.52 pm. The senior registrar in attendance concluded at 8.00 pm that the second twin was in shoulder presentation position. She took certain steps in the hope of changing the baby's position and achieving vaginal delivery. At 8.08 pm she decided that a Caesarian section was necessary. The baby was delivered at 8.31 pm by Caesarian section. The pursuers raised an action for damages on the basis that the senior registrar was negligent in delaying the decision to perform a Caesarian section. Quantum of damages was agreed. Expert medical evidence was led by both parties. It was established that if the baby had been born 8 minutes earlier it would have survived. After proof the Lord Ordinary (Lady Paton) assoilzied the defenders. She did so on the basis that: (i) the pursuers had not established that there was a usual and normal practice to treat the circumstances which obtained at 8.00 pm as requiring an immediate Caesarian section, and accordingly the first prerequisite of the test set out in Hunter v Hanley had not been satisfied; (ii) even if there were such a usual and normal practice, the course the senior registrar had adopted was not one which no competent obstetrician acting with reasonable care and skill would have adopted; and (iii) a decision to perform a Caesarian section at 8.00 pm would have been taken in a non-emergency situation, and might not have resulted in delivery at 8.24 pm, thus avoiding the baby's death. The Lord Ordinary preferred the expert evidence led by the defenders to that led by the pursuers on the grounds that the pursuers' expert had based his view on his own assessment of the baby's position, which differed from the evidence of the senior registrar (which the Lord Ordinary accepted), and because she suspected that he had formed his conclusions on the basis of incomplete information which might have coloured his subsequent assessment of the case.
The pursuers reclaimed. They argued that the Lord Ordinary should have accepted the evidence of their medical expert, which was substantiated by textbooks, that usual and normal practice would have been to decide on an immediate Caesarian section in the circumstances obtaining at 8.00 pm; that the Lord Ordinary was not entitled to disregard the expert's evidence because of a "suspicion" that his views were coloured by misconception; and that it was speculation to conclude that it might have taken longer to carry out a Caesarian section in non-emergency circumstances, and the Lord Ordinary should have held that if the decision had been made at 8.00 pm the baby would have lived. The pursuers relied extensively on extracts from medical textbooks which had been lodged in process, but not all of which had been referred to, at the proof.
Held that: (1) the test of medical negligence was as set out inHunter v Hanley, and the Lord Ordinary erred in holding that the pursuers failed because they had not established that a normal and usual practice existed in the circumstances; that was simply the first of the three facts which had to be established where a deviation from normal practice was alleged, and the crucial fact was the third, that the course the doctor adopted was one no professional man of ordinary skill would have taken if acting with ordinary care - the same test as in circumstances where no such deviation was alleged (paras 76, 77, 88); (2) the Lord Ordinary was entitled on the evidence to conclude that the pursuers had not established that there was a usual and normal practice which would have required a decision to proceed immediately to Caesarian section at 8.00 pm (para 88); (3) the Lord Ordinary's conclusion that a decision taken in non-emergency circumstances at 8.00 pm might not have resulted in delivery of the baby within the timescale which actually occurred was based on conjecture and could not stand (para 92); (4) the proper approach of an appellate court to findings in fact was to recognise the advantages derived by the trial judge from seeing and hearing the witnesses, and while the Lord Ordinary was not entitled to disregard the evidence of the pursuers' medical expert because of a conjecture that he had formed his view on the basis of a misconception which coloured his evidence, she was entitled to prefer the evidence of the defenders' expert witness, to the effect that the senior registrar's actions were not negligent, which was based on evidence as to the baby's position accepted by the Lord Ordinary and not criticised in the appeal (paras 78-80, 82-87, 93); and reclaiming motion refused.
Observed Medical textbooks possess no evidential value except insofar as dealt with in the evidence of a witness, and passages from such books which have not been so dealt with cannot be relied on in appeal, nor can the court interpret the meaning or scope of propositions to be found in such books, which is the exclusive responsibility of expert medical witnesses (para 81).
Margaret Brown Gerrard and Raymond Alexander Waddell Gerrard brought an action in the Court of Session against the Royal Infirmary of Edinburgh NHS Trust for damages in respect of the death of their baby shortly after birth. A proof was heard before the Lord Ordinary (Lady Paton), on 22 to 31 May 2001. At advising, on 11 January 2002, the Lord Ordinary assoilzied the defenders. The pursuers reclaimed.
Cases referred to:
Barbour v Somerset County CouncilUNKWLRUNK [2004] UKHL 13; [2004] 1 WLR 1089; [2004] All ER 385
Bolitho v City and Hackney Health AuthorityELRWLRUNK [1998] AC 232; [1997] 3 WLR 1151; [1997] 4 All ER 771
Bull and anr v Devon Area Health Authority [1993] 4 Med LR 117
Clark v MacLennan and anrUNK [1983] 1 All ER 416
Davie v Magistrates of EdinburghSC 1953 SC 34; 1953 SLT 54
Hunter v HanleySC 1955 SC 200; 1955 SLT 213
Maynard v West Midlands Regional Health AuthorityWLRUNK[1984] 1 WLR 634; [1985] 1 All ER 635
Simmons v British Steel plcUNKSCUNK [2004] UKHL 20; 2004 SC (HL) 94; 2004 SLT 595; 2004 SCLR 920
Strathclyde Regional Council v City of Glasgow District CouncilSC 1991 SC 186; 1992 SLT 51
Thomas v ThomasSCELRUNK 1947 SC (PC) 45; 1948 SLT 2; [1947] AC 484; [1947] 1 All ER 582
Whitehouse v JordanWLRUNK [1981] 1 WLR 246; [1981] 1 All ER 267
Textbooks etc. referred to:
Bell, GJ, Commentaries on the Law of Scotland and the Principles of Mercantile Jurisprudence (6th McLaren ed, Edinburgh, 1858), I.4.7
Dewhurst, CJ, Textbook of Obstetrics and Gynaecology for Postgraduates (CR Whitfield ed, Blackwell Science, London, 1995)
Hacker, NF, and Moore, JG, Essentials of Obstetrics and Gynecology (2nd ed, WB Saunders, USA, 1992), p 239
The cause called before an Extra Division comprising Lord Osborne, Lord Macfadyen and Lady Cosgrove for a hearing on the summar roll.
At advising, on 27 January 2005, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[1] In late 1995, the first named pursuer, who was then aged 28 years, became pregnant. She attended the ante-natal clinic at the Simpson Memorial Maternity Pavilion on 3 January 1996 when it was established that she was expecting twins. As her pregnancy progressed, the first named pursuer was examined on a number of occasions. This pregnancy was her sixth, she having had a miscarriage in 1987 and four normal deliveries in 1987, 1988, 1991 and 1993.
[2] By 22 June 1996, the first named pursuer was 36 weeks pregnant. Following experiencing bleeding when passing urine, she was admitted to hospital. The first twin was then noted to be in a longitudinal lie with a cephalic presentation. The second twin was noted to be in an oblique breech presentation. The condition of both twins was noted to be satisfactory at that stage. Prior to 22 June 1996, it appears that the pursuers had received conflicting advice about the appropriate mode of delivery for the twins. In particular, they had heard differing views about the merits of attempting a normal vaginal delivery, as opposed to an elective Caesarean section. On 22 June 1996 the pursuers met Dr RM Camille Busby-Earle, the senior registrar involved with the first named pursuer. She undertook to have these matters clarified by Professor Calder, the consultant responsible for the first named pursuer. Arrangements were made for him to see the first named pursuer on 23 June 1996. On that date Professor Calder met the pursuers at about 4.00 pm. He then explained to them that vaginal delivery was in the best interests of both mother and babies, unless any complications were to arise. Professor Calder's recommendation of vaginal delivery was fully supported by Dr Busby-Earle.
[3] At 5.50 pm on 23 June 1996, the registrar on duty, Dr David Howe, noted that the first named pursuer's cervix was dilated to 5 cms, with bulging forewaters, and that the vertex of the first twin was about 1 cm above the ischial spines. At 6.30 pm the first named pursuer was transferred to the labour ward, where she was noted to be in early labour. At that stage the twins' heart rates were noted as 130 and 118 per minute respectively. At 6.40 pm a controlled artificial rupture of the membranes was carried out by Dr Busby-Earle. Thereafter she instructed the midwifery staff to allow the first named pursuer to progress in labour. She herself had intended to re-assess the condition of the first named pursuer after 4 hours, unless the first named...
To continue reading
Request your trial
-
Tods Murray, W.s. V. Arakin Limited
...has been affirmed many times since: see for example Maynard v West Midlands RHA [1984] 1 WLR 634, 638 per Lord Scarman; Gerrard v RIE 2005 1 SC 192, at 218-219. [136] In my view, the defenders' averments fall far short in this regard. There is no attempt to specify any of the necessary elem......
-
Marjory Campbell V. Borders Health Board
...negligence is set out in Hunter v Hanley 1955 SC 200; see also Gerrard v Royal Infirmary of Edinburgh NHS Trust, 2005 CSIH 10, 2005 SC 192, and Bolam v Friern Hospital Management Committee[1957] WLR 582. Where, as here, there are conflicting opinions of medical practitioners as to the appro......
-
L G (ap) V. Greater Glasgow Health Board
...T would have been delivered not later than 0033. [277] In that regard, I was referred to Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 1 SC 192, at paragraph 77 where, in applying the well-known test set out in Hunter v Hanley 1955 SC 200, the court, in the context of a claim arisin......
-
Edward Pratt V. The Scottish Ministers
...paras.16-17; Barber v Somerset County Council [2004] 1 WLR 1089 at paras.16, 67 and 70; Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 SC 192 at paras.[78]-[80], citing Simmons v British Steel plc 2004 SC (HL) 94 at para.9. [51] We were also reminded, under reference to McTear v Impe......