Margaret Brown Gerrard (ap)+raymond Alexander Waddell Gerrard (ap) V. The Royal Infirmary Of Edinburgh Nhs Trust
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Macfadyen,Lady Cosgrove |
| Date | 27 January 2005 |
| Docket Number | A/120 |
| Court | Court of Session |
| Published date | 27 January 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Macfadyen Lady Cosgrove
| [2005CSIH10] A/120/01 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION by (FIRST) MARGARET BROWN GERRARD (A.P.) and (SECOND) RAYMOND ALEXANDER WADDELL GERRARD (A.P.) Pursuers and Reclaimers; against THE ROYAL INFIRMARY OF EDINBURGH N.H.S. TRUST Defenders and Respondents: _______ |
Act: Stewart, Q.C., Summers; Messrs Campbell Smith, W.S. (Pursuers and Reclaimers)
Alt: J. Campbell, Q.C., Ross; Scottish Health Service CLO (Defenders and Respondents)
27 January 2005
The background circumstances
[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 R. M. 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 pursuer was expulsive prior to that. The expulsive stage is reached when the baby's head is descending into the vagina and the mother experiences an overwhelming desire to push, heralding the arrival of the baby. Dr Busby-Earle requested the midwifery staff to inform her if the dilatation of the cervix reached 9 cms or more, as she wished to be present at the birth. At 7.00 pm Dr Busby-Earle checked the cardiotocographs, records of the foetal heart rates, and was content with the results.
[4]At 7.51 pm, the midwifery sister involved noted that the vertex of the first baby to be delivered was visible, there having been what was described as a very fast second stage of labour. In consequence, Dr Busby-Earle was summoned, but before she could arrive, the first twin was delivered by the midwifery sister at 7.52 pm. The delivery was normal, unassisted and head-first. Dr Busby-Earle arrived in the labour ward at 7.53 pm, when she examined the first named pursuer's abdomen. The foetal heart rate of the second twin was being monitored by means of an abdominal transducer, a device consisting in a disc of about 3 inches in diameter, attached by wires to monitoring machinery, and retained in position on the mother's abdomen by a belt. Dr Busby-Earle found difficulty in deciphering the lie and presentation of the second twin by external palpation so, at 7.58 pm, she proceeded to carry out a vaginal examination. The cervix was found to be dilated to 8 cms. Above the cervix, she felt firstly, a cleft, which initially gave her the impression of buttocks and therefore of a breech presentation. However, she also felt what she perceived as fingers and, next to the fingers, what seemed like an upper arm. She then utilised an ultrasound scanner to perform a scan of the abdomen. She was able to see the baby's head on the scan, but could not feel the head with her hand. The scan showed that the head was positioned over the cervix, but the lie was about 5 or 10 degrees off centre. Dr Busby-Earle formed the view that that presenting part of the baby was near to, but above, the pelvic brim. The presenting part of the baby was just above the cervix, near enough for Dr Busby-Earle to feel it with a finger, but not protruding from, nor engaged or impacted in, the cervix. Dr Busby-Earle noted that there had been no palpable forewaters at the time of her examination, so she assumed that the membranes had been ruptured. She was unable to feel uterine contractions.
[5]In the light of her findings from the vaginal examination and the ultrasound scan which she had undertaken, Dr Busby-Earle formed the view that the cleft which she had felt was an armpit. She ultimately concluded at about 8.00 pm that the baby's presentation was not a breech presentation, but a shoulder presentation, with the baby's head only 5 or 10 degrees away from the longitudinal position. She considered that such a presentation was quite uncommon.
[6]Bearing in mind that the second twin's head appeared to be only 5 or 10 degrees off-line, Dr Busby-Earle anticipated that some uterine contractions might dilate the cervix and assist in tipping the baby's head into the correct position in the pelvis. She also hoped that gentle manipulation of the baby's fingers by her own fingers might result in the baby's hand and arm being automatically withdrawn, assisting the head to slip into the right position. Accordingly, on diagnosing the shoulder presentation at 8.00 pm Dr Busby-Earle instructed the commencement of a syntocinon drip, to encourage contractions. She chose a dilute infusion of 3 mls per hour, because the first named pursuer had, by then, given birth to 5 children and her uterus might respond more vigorously than the uterus of a prima gravida. At 8.03 pm, the syntocinon infusion was increased to 12 mls per hour, at Dr Busby-Earle's request.
[7]At 8.06 pm the foetal heart rate of the baby was noted to be 120 per minute and the first named pursuer to be actively pushing. However, by 8.08 pm, about 8 minutes after the syntocinon administration had started, there had been no uterine activity, no cervical dilation, and no correction of the presentation of the baby. Also, at that stage, the foetal heart rate was noted as being difficult to discern. It was appreciated by Dr Busby-Earle that that difficulty might indicate foetal distress; in any event, there could be no reassurance concerning the baby's condition. At that stage, Dr Busby-Earle decided that, in the light of all these factors, taken together with the time lapse of 16 minutes since the birth of the first twin, a Caesarean section was necessary. Accordingly she instructed that the syntocinon drip should be switched off. She continued to keep her right hand in the vagina of the first named pursuer, to avoid problems with the umbilical chord. Her hand remained there while the first named pursuer was being transferred to the operating theatre. Immediate instructions were given to mobilise the operating theatre staff. At 8.10 pm the first named pursuer, along with Dr Busby-Earle reached the anaesthetic room. Professor Calder was then called on the instructions of Dr Busby-Earle. That action was taken for two reasons. First, it was considered that Professor Calder might have decided that a procedure known as internal version was feasible. Such a manoeuvre may be carried out where the membranes are intact, or recently ruptured. A general anaesthetic is administered and the hand of the practitioner inserted into the uterus so that the baby may be manipulated to allow for vaginal delivery. Secondly, it was the practice in the hospital concerned to inform the consultant in charge whenever a patient was being taken to the operating theatre for a Caesarean section. Dr Busby-Earle had not called for Professor Calder at any earlier stage, since, prior to her decision to proceed with a Caesarean section, on the basis of what had been seen on the ultrasound scan and in the light of the monitoring of the foetal heart rate she had considered that there had been no cause for alarm and that matters had been well within her competence and capability to handle. Dr Busby-Earle had herself never performed internal version, which was a procedure that only older and more experienced practitioners might be capable of undertaking, but not the younger generation of obstetricians, such as herself.
[8]Professor Calder arrived in the operating theatre promptly. Dr Busby-Earle then removed her hand from the first named pursuer's vagina, after which Professor Calder carried out a vaginal examination. He then wished to re-examine the first named pursuer under general anaesthetic. The first named pursuer was accordingly anaesthetised. Following a further examination, Professor Calder agreed that a Caesarean section was necessary. That operation was performed by Dr Busby-Earle,...
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