Jacqueline Macleod And Andrew Duncan Macleod As Legal Representatives Of Rowan Macleod (ap) Against Highland Health Board
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lady Dorrian |
| Judgment Date | 07 April 2016 |
| Neutral Citation | [2016] CSIH 25 |
| Court | Court of Session |
| Docket Number | A273/08 |
| Published date | 07 April 2016 |
| Date | 07 April 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 25
A273/08
Lord Brodie
Lady Dorrian
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in the cause
by
JACQUELINE MACLEOD and ANDREW DUNCAN MACLEOD
as legal representatives of Rowan MacLeod (AP)
Pursuers and Reclaimers;
against
HIGHLAND HEALTH BOARD
Defender and Respondents:
Act: Gale QC, Heaney; Drummond Miller LLP
Alt: Stephenson QC, Dawson; Central Legal Office
7 April 2016
Introduction
[1] The first pursuer is the mother and the second pursuer is the father of Rowan MacLeod who was born by way of Caesarean section at Raigmore Hospital, Inverness, at about 0202 hours on 2 June 1999. They sue in the capacity of Rowan’s legal representatives. It is their contention that Rowan suffered catastrophic perinatal injury in the form of hypoxic brain damage by reason of a period of chronic partial asphyxia before delivery and then a period of acute profound asphyxia after delivery and during resuscitation, and that this was caused by fault and negligence on the part of those responsible for the first pursuer’s care in the period of about four hours immediately preceding Rowan’s birth.
[2] Rowan has cerebral palsy with a quadriplegic distribution. She is completely dependent for all activities of daily living. She will never be able to live independently. The sum sued for is £10.5 million. The defender is Highland Health Board. It is sued as having responsibility for Raigmore Hospital and for the acts and omissions of staff employed at the hospital at the material time.
[3] The summons in the action was signeted on 16 April 2008. The action came before the Lord Ordinary for proof, restricted to the issues of liability and causation of damage, on 30 October 2012. Evidence was led over 22 days, concluding on 6 December 2012. At this stage only the first pursuer represented Rowan (the second pursuer being joined in the action, also as a legal representative of Rowan by amendment in August 2015). Following the leading of evidence, the Lord Ordinary was provided with written and oral submissions on behalf of the parties. These were delivered over three days. A feature of the written submissions on behalf of both parties is their length and consequent detail. The submission for the pursuer extended over 79 pages. The submission for the defender extended over 139 pages, in addition to which the defender provided a supplementary submission of 36 pages. The Lord Ordinary made avizandum on 7 February 2013. On 23 January 2014 he issued his opinion in terms of which he sustained the second and third pleas-in-law for the defender and assoilzied them from the conclusions of the summons.
[4] The pursuers have reclaimed.
[5] The reclaiming motion was heard on 29 and 30 September and 1, 2, 7, 8, 9 and 13 October 2015, on which last date the court made avizandum. The court was addressed by senior and junior counsel. Both parties had lodged substantial written notes of argument which they adopted.
[6] In this opinion we shall refer to the reclaimers as the pursuers (and, where appropriate, as the first and the second pursuer, respectively), and to the respondent as the defender. Whereas at proof there was but one pursuer and all corresponding references prior to August 2015 reflect that, all references in this opinion, including those to the proof, will reflect the amended instance.
The pursuers’ case in brief
At proof
[7] The pursuers’ case at proof was one of negligent delay on the part of the defender in circumstances where Rowan’s hypoxic condition in utero, as should have been apparent from properly conducted cardiotocographic (CTG) monitoring, mandated urgent delivery by Caesarean section. The first pursuer had been admitted to the labour ward at about 1810 hours on 1 June 1999 by which time her labour had started. However, labour did not sufficiently progress despite the administration of medication with a view to increasing the frequency of contractions. At 0035 hours on 2 June the obstetric registrar responsible for the supervision of the first pursuer’s care (Dr Amy Sharkey) noted that the first pursuer was probably not deliverable vaginally. At about this time (0050 or earlier) Dr Sharkey discussed the case by telephone with Dr Michael Hulse, the consultant obstetrician on call (who was then at home). Dr Hulse instructed Dr Sharkey to perform a Caesarean section. That decision was made on the basis of failure to progress with labour rather than by reason of foetal distress. Accordingly, the time from decision to delivery did not have the urgency associated with an immediate or “grade 1” or “category 1” or “crash” section. The pursuers’ contention is that had the defender’s staff proceeded with an immediate section the time between decision and delivery would have been of the order of 40 minutes. As it was the lapse of time was of the order of an hour.
[8] The pursuers’ case was that it was negligent not to have delivered Rowan by Caesarean section no later than 0140 on 2 June 1999. They contended that Rowan was suffering from hypoxia in utero and that had the results of CTG monitoring prior to 0112 hours on 2 June 1999 been properly interpreted or had monitoring been continued after 0112 hours (and been properly interpreted), then Rowan’s hypoxic state would have been detected and delivery by Caesarean section would have been expedited with the result that she would not have suffered the catastrophic brain damage that she has.
At the reclaiming motion
[9] At the reclaiming motion the pursuers’ submission was essentially that the Lord Ordinary’s opinion had failed to give adequate reasons for his decision, and that the absence of adequate reasons, taken with the excessive delay on the part of the Lord Ordinary in producing his opinion, meant that there had not been a fair trial of the issues and the Lord Ordinary’s interlocutor should be recalled.
[10] In terms of the pursuers’ written note of argument, their primary motion on recall of the Lord Ordinary’s interlocutor was for this court to uphold the pursuers’ first plea-in-law thereby finding the defender liable to make reparation to them and to fix a proof on the quantum of damages. However at the hearing of the reclaiming motion, counsel for the pursuers departed from that position, insisting only on the alternative position in the written note of argument: that in the event of the Lord Ordinary’s interlocutor being recalled the case should be remitted back to the Outer House for a rehearing of evidence before a different Lord Ordinary. In the result, although the pursuers’ counsel made extensive reference to the evidence that had been led at proof and criticised the medical and nursing staff responsible for the care of the first pursuer during her labour, the court was not invited to evaluate the whole of the evidence with a view to coming to its own conclusions on fault and causation of damage.
[11] Thus, the overarching issues raised by the reclaiming motion were: first, whether on the basis of the criticisms of the Lord Ordinary’s opinion advanced by the pursuers under reference to their grounds of appeal, this court was satisfied that the Lord Ordinary’s interlocutor of 23 January 2014 was open to be recalled; and, second, whether the disposal proposed by the pursuers, that is a remit to the Outer House, was competent and appropriate. Given the nature of argument presented, success for the pursuers in the reclaiming motion depends on acceptance of both of the propositions advanced by the pursuers: (1) that the Lord Ordinary’s opinion is so flawed that his interlocutor might properly be recalled; and (2) that the correct and competent disposal is a remit to the Outer House for a proof of new. As will be apparent, given the position taken on behalf of the pursuers these propositions are to an extent interdependent.
The structure of this opinion
[12] As we have indicated, although we were not invited to come to a conclusion on the basis of what we made of the evidence, we had been provided with a transcript and extensive reference was made to the evidence with a view to providing a context for submissions. In the course of these submissions the Lord Ordinary was severely criticised for what was said to have been a superficial treatment of the pursuers’ case and a failure to engage with the relevant medical science. That being so, having first said something in entirely general terms about cardiotocographic monitoring of the foetal heart beat in utero, we shall begin by setting out at length what we understand to have been the factual issues in the case, before turning to the manner in which they were resolved by the Lord Ordinary. We shall then set out the grounds of appeal and then record and discuss the submissions made to us in relation to them. We see there to be some overlap as among the various grounds and accordingly we shall aggregate them for the purpose of discussion by reference to what appears to be the core criticism. After summarising our opinion on the grounds of appeal, we shall address the competency of the disposal proposed by the pursuers. Finally we shall provide a conclusion.
Cardiotocographic monitoring during labour
[13] In very large part, the pursuers’ case of negligence relates to monitoring of Rowan’s heartbeat during the latter part of labour and the interpretation of the results of that monitoring. It is therefore convenient, before going any further, to say something in general about foetal monitoring using a cardiotocograph (CTG), how the signs disclosed by such monitoring may point to a state of chronic partial asphyxia such as the pursuers aver was experienced by Rowan prior to her birth, what these signs are and how the language used to describe them and the method of interpreting them have evolved over a time period which includes the date of Rowan’s birth. The latter point is important. While the pursuers may be correct to say...
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