Mrs. Audrey Lowe, As Guardian Of The Child Kieran Stephen Matthew Lowe V. Yorkhill Nhs Trust
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2007] CSOH 111 |
| Date | 27 June 2007 |
| Docket Number | A2689/02 |
| Court | Court of Session |
| Published date | 27 June 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 111 | |
| A2689/02 | OPINION OF LORD TURNBULL in the cause MRS AUDREY LOWE, AS GUARDIAN OF THE CHILD KIERAN STEPHEN MATHEW LOWE Pursuer; against YORKHILL NHS TRUST Defenders: ________________ |
Pursuer: Mitchell, QC; Lindsay; Balfour & Manson (for Ferguson, Dewar, Glasgow)
Defenders: Anderson QC, Scott; Central Legal Office
27 June 2007
Introduction[1] The pursuer in this case is Mrs Audrey Lowe who brings the case as the guardian of her son, Kieran Stephen Mathew Lowe. Kieran Lowe was born at the Queen Mother's Hospital, Glasgow on 22 January 1999. Kieran was born in very poor condition and was effectively stillborn until eighteen minutes of age when there was a first cardiac output. He required cardiopulmonary resuscitation and treatment in the neonatal intensive care unit. A CT brain scan demonstrated that he had suffered a hypoxic ischaemic insult of acute origin. He subsequently developed hypoxic ischaemic encephalopathy and in due course was diagnosed as suffering from asymmetrical and dystonic athetoid quadriplegic cerebral palsy. The current action seeks damages for alleged medical negligence during the intrapartum care received by Mrs Lowe at the Queen Mother's Hospital. The parties agreed the appropriate level of damages to be awarded should there be a finding of negligence.
Mrs Lowe's Labour
[2] At the time of Kieran's birth Mrs Lowe was a healthy non smoker aged 27 years. She had previously given vaginal birth to a healthy child in 1992. Examinations carried out at routine antenatal visits throughout her pregnancy with Kieran appeared to demonstrate an uncomplicated pregnancy. At five in the morning on 22 January 1999 she self presented at the hospital. She was noted to be a healthy multiparous patient with an uncomplicated pregnancy at 38+3 weeks gestation. As is normal, a record of Mrs Lowe's intrapartum care was kept in the nursing notes. These were produced at proof and were the subject of much scrutiny in evidence and submissions. These notes generally proceed in a chronological order from page to page. Each page has a date and time column and a third column, occupying most of the width of the page within which members of staff make notes as to progress. Along with the Cardiotocograph (CTG) tracings, to which reference will later be made, these documents provided a framework within which the care provided to Mrs Lowe could be identified and examined. As a consequence of the availability of the nursing notes there was little in dispute as to what factually occurred during Mrs Lowe's time at the hospital, despite the passage of over seven years between Keiran's birth and the proof.
Summary of Care
[3] A summary of Mrs Lowe's nursing care as described in the notes can be set out as an introduction to a more detailed examination of the evidence given. An initial vaginal examination, performed on admission, showed that Mrs Lowe's cervix was mid-position, fully effaced, 2-3 cms dilated and that the membranes were closely applied to the vertex. After assessment Mrs Lowe was classified as a low risk patient and transferred to room 1 of the Tower Suite within the hospital. The Tower Suite is a midwifery lead unit providing one to one midwifery care with medical support. Low risk patients are given the option of delivering in this facility rather than the main labour suite within the hospital. Prior to her transfer to the Tower Suite, as part of the initial assessment procedure, electronic fetal monitoring was performed. This admission CTG showed a reassuring trace. As a result continuous electronic monitoring was discontinued. In terms of normal practice with a low risk patient intermittent auscultation using a sonic aid device was substituted.
[4] At 07.50 the management of Mrs Lowe's labour was taken over by Staff Midwife Josephine Nairn. At 08.15 the fetal heart rate was noted to be low at 82 beats per minute. Midwife Nairn then recommenced electronic fetal monitoring and continuous CTG tracing was available from this point onwards. At 08.25 a second vaginal examination was performed to assess progress. The cervix was found to be 8cms dilated with the vertex at the level of the ischial spines or at the spines minus 1 position. The fetal position was thought to be direct occipito-anterior. At the time of recording these findings Midwife Nairn also noted that the fetal heart baseline was at 145 beats per minute with good variability. She noted the presence of variable decelerations down to 90 beats per minute with quick recovery to baseline. At 08.35 the midwifery sister, Sister Tutt, noted that she had been asked to see the CTG readings. She noted the CTG as showing good variability with variable decelerations, probably due to head compression. She noted that the trace was to be observed and seen by medical staff on the ward round.
[5[ At 08.50 Midwife Nairn observed and noted a fetal bradycardia down to 84 beats per minute. In the medical notes she described this as having a slow return to baseline. By this time the daytime medical staff were on duty and she drew the fact of the bradycardia to the attention of Doctor Valero, the registrar with responsibility for patients in both the main labour suite and the Tower Suite. Dr Valero conducted a medical review, the results of which were recorded in the medical notes with the timing of 08.55. Dr Valero noted that Mrs Lowe was a para 1 lady in spontaneous labour with the cervix 8cms dilated and good uterine activity. He described the CTG trace as showing variable decelerations and the presence of a bradycardia. He also described the trace as showing good variability. He included the comment "Head compression at descent?" as his assessment of the cause of the bradycardia. Dr Valero instructed that there should be artificial rupture of the membranes and confirmation of satisfactory progress. This instruction was carried out by the Senior House Officer Dr Black.
[6] Dr Black noted her findings in the nursing notes with a timing of 09.10. She recorded that she had found the cervix to be almost fully dilated but with a thick anterior rim. She noted that she found the vertex to be at the ischial spines and that the baby was in the direct occipito-anterior position. Dr Black further noted that she had been unable to rupture the membranes artificially and queried whether the membranes had already ruptured. She noted that there was some "show" but that no liquor had been seen. She further noted that she had relayed these findings to Dr Valero. Midwife Nairn made an entry in the nursing notes timed at 09.25 in which she again made reference to the presence of variable decelerations on the CTG tracing. She noted that variable decelerations continued with the contractions, that they had quick recovery and that the variability was satisfactory. She noted that the fetal heart rate was 156 beats per minute. In an entry timed at 09.45 Midwife Nairn noted that Mrs Lowe was having rectal pressure and urges to push. She again noted the presence of variable decelerations with contractions. At 10.00 she made an entry to note that the CTG tracing was showing satisfactory variability and that variable decelerations were continuing. Sister Tutt was again asked to review the CTG tracing and in an entry timed at 10.05 she noted the presence of deep variable decelerations with good variability. She noted that she was to carry out a further vaginal examination in order to perform an assessment. The results of Sister Tutt's examination are recorded in the nursing notes in an entry timed at 10.10. She noted that Mrs Lowe's cervix was now fully dilated, that the baby's head was at +1 cms to the ischial spines and in a direct occipito-anterior position. She recorded that no membranes were felt. Sister Tutt repeated her own comment as recorded in the 10.05 entry that the CTG tracing was showing deep variable decelerations with good variability. She also noted that Mrs Lowe had been encouraged to push on her left side and that medical staff were to be asked to review the CTG readings.
[7] The review of the CTG tracing was carried out by Dr Black and her findings are recorded in the nursing note entry timed at 10.20. She noted the fetal baseline heart rate as being 160-170 beats per minute. She noted that there was good variability, that there were decelerations with contractions to 70-80 beats per minute and good recovery. She noted that she would inform Dr Valero. Dr Valero returned to carry out a review and entered his findings in the nursing notes in an entry timed at 10.40. There are in fact two entries with this timing, the second of which is the entry made by Dr Valero. It is not clear who the author of the first 10.40 entry was but the entry made was a note that Mrs Lowe had been actively pushing since 10.25. In Dr Valero's entry he noted that she was pushing, that no liquor had been seen, and that the CTG tracing showed persistent variable decelerations with good recovery and good variability. He noted his decision that Mrs Lowe should continue pushing, that the CTG was to be observed and that he would undertake a review of the situation in 15 minutes, in other words at about 10.55. At 10.50 Midwife Nairn made an entry in the nursing notes to record that Mrs Lowe continued to push, that there was still nothing visible, that the pushes were ineffective and that Mrs Lowe was very tired. She noted the fetal heart rate to be 134 beats per minute and that variable decelerations continued. At 11.00 Midwife Nairn noted that there was still nothing visible, that Mrs Lowe had changed position and was now on all fours and was continuing to push. She noted that the fetal heart rate was at 152 beats per minute.
[8] As was clear from the entry made by Midwife Nairn at 11.00, Dr Valero did not in fact return by 10.55. The precise time of his return became one of the few matters of factual dispute in the evidence and was the...
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