L G (ap) V. Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2013] CSOH 145 |
| Court | Court of Session |
| Published date | 27 August 2013 |
| Year | 2013 |
| Date | 27 August 2013 |
| Docket Number | A47/11 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 145 | |
| A47/11 | OPINION OF LORD ARMSTRONG in the cause LG (AP) Pursuer; against GREATER GLASGOW HEALTH BOARD Defenders: ________________ |
Pursuer: Carmichael QC, McNaughton; Digby Brown LLP
Defenders: McLean QC, MacSporran; NHS Central Legal Office
27 August 2013
Introduction
[1] The pursuer lives in Glasgow with her husband. She is the mother and guardian of her son, T, who was born on 19 March 2004, and she brings the present action in that capacity. T was born with serious brain damage most probably caused by acute hypoxic ischaemia sustained in the course of his birth. He has developed dystonic cerebral palsy with spastic quadriplegia.
[2] The medical notes relating to the pursuer's ante-natal history disclose nothing remarkable and no material medical complications during it. This was the pursuer's third pregnancy. Both of her previous children were born fit and healthy.
[3] The pursuer seeks reparation for the loss, injury and damage sustained by T on the basis that, had his delivery been expedited, the neurological disability from which he will continue to suffer would not have occurred or would have been less severe than is the case. Her criticisms are directed against Mr Joseph Ogah, consultant obstetrician (referred to hereafter as Dr Ogah, as he then was in 2004) and Dr Steven Thomas, anaesthetist, both of whom treated the pursuer during her labour at Queen Mother's Hospital, Glasgow ("QMH"). At the time, Dr Ogah was an obstetric registrar and Dr Thomas was a senior house officer ("SHO").
[4] The case of fault directed on behalf of the pursuer against Dr Ogah is that, on the basis that no ordinarily competent obstetric registrar would have failed to recognise that a drop in foetal heart rate ("FHR") from 170/180 bpm to 100/110 bpm represented a risk of brain damage and the need for a category 1 caesarean section, or would have carried out a full vaginal examination or would have failed to ensure that obstetric procedures were carried out without undue delay, he failed in his duties to communicate to Dr Thomas that the requirement for delivery was as a most urgent category 1 case or "crash section" requiring to be carried out as soon as possible, without delay and to communicate to him that there had been foetal bradycardia and that there was an immediate threat to the life of the foetus.
[5] The case of fault directed on behalf of the pursuer against Dr Thomas is that, on the basis that no reasonably competent anaesthetist would have undertaken a "quick spinal" unless it could have been completed by 00.27 or would have failed to authorise the commencement of surgery when the spinal block had reached the level of T7 or would have failed to administer general anaesthesia if the administration of spinal anaesthesia had been unsuccessful by 00.27, he failed in his duties to ascertain from Dr Ogah the degree of urgency of the necessary delivery and to achieve appropriate anaesthesia at the proper time to expedite delivery by caesarean section.
[6] The action came before me for proof at which, at the outset, the parties were agreed that, given the apparent variables and complexities relating to causation, there was merit in restricting the matters to be determined by me to the following issues:
1. Has the pursuer proved that there was negligent delay on the part of Dr Ogah, registrar obstetrician and/or Dr Thomas, senior house officer anaesthetist, in the period after 00.20 on 19 March 2004 in arranging for the delivery of T?
2. If there was such negligent delay, when would T probably have been delivered had that negligent delay not occurred?
Since the approach proposed was likely to reduce the necessary ambit of any subsequent evidence relevant to causation, I allowed the proof to proceed on that basis.
[7] It was a matter of agreement that all medical and professional care provided to the pursuer in relation to her labour at QMH up to around 00.20 on 19 March 2004 was in accordance with usual and normal practice. It was also agreed that T was delivered at 00.48.
Time Line
[8] The pursuer's clinical notes (7/1 of process) and the related cardiotocograph ("CTG") traces, insofar as spoken to by witnesses, disclose the following order of events occurring during the evening of 18 March 2004 and the early hours of the following day:
21.25 Admitted with spontaneous rupture of membranes. Mild to moderate contractions occurring two to three times every 10 minutes. Uncomfortable and given entonox. Blood pressure 137/74. Pulse rate 111. Head 3/5 palpable.
21.50 Vaginal examination: 4 centimetres dilated. Head 2 centimetres above ischael spines.
22.35 Diamorphine administered.
22.50 Moved from admissions to delivery room 6.
23.00 Temperature 37.1 degrees centigrade. Given paracetamol.
23.10 Meconium stained liquor recorded.
23.30 Head 2/5 palpable. Vaginal examination: 8 centimetres dilated. Head at ischael spines. Fresh meconium noted. Three foetal blood samples taken, all producing reassuring results.
23.45 Feels like pushing.
23.55 FHR baseline 180- bpm. Heavy show.
00.00 Urge to push.
00.05 FHR 100 bpm, not recovering.
00.10 FSE applied.
Vaginal examination not possible because of distress +++. Wishes caesarean section. FHR baseline 105 bpm.
(per Dr Ogah's retrospective notes: Too distressed to tolerate vaginal examination fully but on digital examination not fully dilated. FHR 105/110 bpm).
00.15 Cimetidine administered.
00.20 Arrival in theatre
(that time is inconsistent with the timed disconnection of the CTG machine in delivery room 6 which according to the trace occurred at just before 00.22).
00.31 CTG machine in theatre reconnected.
00.38 Spinal anaesthesia sited
(cf. anaesthetics notes: 00.39).
00.42 Block at T7.
00.45 Block at T6.
(per Dr Ogah's retrospective notes: while in theatre, head 1/5 in abdomen. Vaginal examination: 8/9 centimetres).
00.47 Knife to skin.
00.48 Delivery.
The evidence
[9] I heard evidence from eleven witnesses in all, four who spoke to fact and five who gave expert opinion evidence. In addition, a joint minute (no. 27 of process) was lodged.
[10] The pursuer was 39 years of age when she was pregnant with T. When she arrived at QMH, at about 21.25 on 14 March 2004, together with her husband who was with her throughout, she was 8 days over full term. She was initially assessed in an admissions ward and subsequently moved to delivery room 6. A CTG was set up to monitor her contractions and the foetal heart rate and she was given entonox (gas and air) for pain relief followed, after an hour or so, by diamorphine.
[11] When she was seen by Dr Ogah, she told him that she felt something was not right and that something might be wrong with the baby. She repeated her concerns to him on a further two occasions. She was in considerable pain and sometime later was unable to tolerate a vaginal examination. She said that she told Dr Ogah that she needed help but, despite his comments that she had previously had two normal births and that all would be fine, she was not reassured. She felt that he was not listening to her.
[12] She described what she interpreted, at the time of the attempted vaginal examination, as a disagreement between Dr Ogah and the midwife as to the extent to which her cervix was dilated.
[13] She had an urge to push but then it disappeared. She had pain in her back which she had not experienced during her previous deliveries. She spoke of an exchange with Dr Ogah in which he said she was going to have a caesarean section "not because she wanted it, but because she needed it". He had also said that it might still be possible to try for a normal delivery after she was taken to theatre.
[14] She was taken from delivery room 6 to theatre in what felt like seconds and felt relief that something was happening. She recalled spinal anaesthesia being administered. In theatre, Dr Ogah asked to perform another vaginal examination to determine if a normal delivery might still be possible but she replied to a nurse "What does he not understand?". T was then delivered by caesarean section, following which she was taken to a recovery room where, after some time, she was informed that the outcome for T had not been a good one.
[15] In cross-examination, she agreed that her recollection was not complete and that she could not be sure of timings. She did not remember the extent of involvement of Dr Eleftherios Anastasakis who had previously carried out a vaginal examination and had taken foetal blood samples ("FBS"). She could recall that in theatre people were rushing about although it was all a bit of a blur.
[16] In re-examination she confirmed that she had felt relieved when going to theatre and did not remember being angry there.
[17] Mr G confirmed his wife's account of admission to QMH and events in delivery room 6. He had been with her just before she was taken to theatre. Dr Ogah had been in attendance. Mr G also described a disagreement between Dr Ogah and the midwife about the extent of the pursuer's dilation. His wife had been in a lot of pain. His recollection was that it was Dr Ogah who had taken the FBS and described him throwing one away, over his shoulder, because it wasn't adequate. He remembered his wife feeling that she wanted to push and her telling Dr Ogah to stop the vaginal examination because of the pain. He remembered Dr Ogah telling her to stop shouting. His recollection was that the necessary consent form had been completed before midnight. After that he was taken from the delivery room to prepare for theatre. He had then waited for about 20 minutes before being taken in to theatre. While waiting, he saw Dr Ogah and Dr Thomas talking just outside the operating theatre for about 10 to 15 minutes. Later when Dr Ogah came to see them at about 4.30 he had said that he didn't know what had gone wrong, but that if something similar were to happen again he would do everything the...
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