Kt V. Lothian Nhs Board
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2009] CSOH 132 |
| Court | Court of Session |
| Docket Number | A664/06 |
| Published date | 25 September 2009 |
| Date | 25 September 2009 |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 132 | |
| A664/06 | OPINION OF LADY CLARK OF CALTON in causa MRS KT or K (as guardian of CK) Pursuer; against LOTHIAN NHS BOARD Defenders: ________________ |
Pursuer: Hanretty; McNaughton; Digby Brown SSC
Defenders: Ferguson; Stevenson; R F Macdonald, solicitor
25 September 2009
Summary
[1] The pursuer is the mother of CK who was born on 11 May 1998. The pursuer sues as guardian of CK in respect of alleged negligence of anaesthetic and obstetric staff for whose acts and omissions in the course of employment, the defenders are averred to be liable. By interlocutor dated 11 October 2007 the proof was restricted to liability and causation. The issues in dispute were firstly, whether there had been professional negligence on the part of Dr Cameron (the obstetrician) and/or Dr Jones (the anaesthetist). Secondly, whether said negligence had caused or contributed to the medical condition and disabilities of CK and, if so, to what extent.
The pleadings in relation to fault
[2] The final form of the pleadings are contained in the amended Closed Record, 18 of process. I set out those pleadings in some detail as the pleadings are designed to give fair notice and focus the issues in dispute. The pleadings shaped the way in which the case was presented. Article 2 of Condescendence sets out the averments of fact. In summary the pursuer was admitted in labour at the Simpson Memorial Maternity Pavilion on 11 May 1998. Her labour was monitored in various ways by machine and by midwifery staff. It is averred by the pursuer that:
"At or about 1105 hours the pursuer felt like pushing. The foetal heart rate was noted to be 100 bpm to 110 bpm and by 1110 hours was at 90 bpm. The foetal heart rate remained at or below this rate until 1124 hours, when the CTG was discontinued and the pursuer was transferred to theatre. The pursuer was placed on her left side and then on her right side. The foetal heart rate failed to improve. Medical staff were called at 1112 hours. Spontaneous rupture of the membranes occurred at 1114 hours. A vaginal examination was carried out at 1115. The cervix was fully dilated and the head was above the ischial spines. A further examination was carried out at 1118 hours. The cervix was fully dilated, the position was occipito-posterior and the station 1 cm above the ischial spines. The foetal heart rate had been below 100 bpm for 8 minutes. It was falling rather than recovering. The pursuer was encouraged to push but there was no descent of the head. A decision was made to proceed to emergency caesarean section at approximately 1120 hours. The defenders are called upon to aver whether the obstetricians alerted the theatre team and the anaesthetist that the pursuer was being transferred to theatre. The defenders are called upon to aver the time at which the obstetricians did so. The pursuer was transferred to theatre at 1125 hours. At 1125 the foetal heart rate was at or below 90 bpm. By the time the pursuer arrived in theatre there had been a severe foetal bradycardia for at least 15 minutes. All theatre and medical staff were or ought to have been aware of the data on duration of severe profound hypoxia needed to cause irreversible damage to the baby. The situation was one of extreme urgency. All theatre and medical staff were or ought to have been aware that the outcome for the baby would be profoundly altered by a five to ten minute delay. In theatre the pursuer was attended upon by Dr Karen Jones, a senior experienced trainee anaesthetist. She decided to attempt spinal anaesthesia. Spinal anaesthesia was attempted between at or about 1125 and 1140 hours. The foetal heart rate was recorded at 1137 hours at 90 and 95 bpm. At or about 1140 hours a decision was made to proceed to general anaesthesia."
[3] Against the factual background averred in Article 2 of Condescendence, the pursuer avers:
"it was the duty of the obstetrician to advise the anaesthetist of the extreme urgency of the situation upon the pursuer's arrival in theatre at or around 1126 hours. It was the duty of the obstetrician to advise the anaesthetist in theatre that all steps had to be taken to expedite delivery of the baby. No reasonably competent obstetrician acting with ordinary care would have failed to advise the anaesthetist accordingly. Further, it was the duty of the anaesthetist to take all steps to expedite delivery. In doing so, it was the duty of the anaesthetist to have prepared both spinal and general anaesthesia prior to the pursuer's arrival in theatre. It was the duty of the anaesthetist to assess the comparative risks and benefits of alternative forms of anaesthesia and to reach a reasonable conclusion. It was the duty of the anaesthetist to take into account the very grave condition of the foetus as reported to him or her and to have proceeded directly to administer general anaesthesia. Esto the anaesthetist considered it to be a reasonable conclusion to attempt regional anaesthesia, it was the duty of the anaesthetist to make a single quick attempt at spinal anaesthesia before proceeding to general anaesthesia. Had the anaesthetic and obstetric staff complied with the duties incumbent upon them the baby would have been delivered by 1134 hours."
[4] In answer 2 the defenders admit many of the averments about the history and following a general denial aver certain facts. In particular it is averred:
"At or about 11.18 hours the Registrar, Dr Sharon Cameron attended. Dr Cameron performed a further vaginal examination. She found the cervix to be fully dilated with the head at 1 cm above station. The foetal head position was left occipito-posterior. The pursuer was still pushing with contractions. However there was no sign of the foetal vertex. The immediate plan was for an attempt at forceps delivery in the pursuer's room. The use of rotational forceps required the attendance of a Consultant. As no advance of the head was seen with pushing it was decided to transfer the pursuer to theatre for trial by forceps or Caesarean section. Dr Cameron took steps to alert theatre staff. She spoke to the Senior Registrar, Dr Holmes. He was unable to attend the theatre. Dr Holmes informed Dr Cameron that a Consultant, Dr Tay, was in the theatre adjacent to the theatre Dr Cameron intended to use. Dr Tay was engaged in an emergency Caesarean section there. Midwife McWalter transferred the pursuer to theatre at or about 11.25 hours. Dr Tay was asked to attend. In theatre Dr Jones attempted spinal anaesthesia but was unsuccessful. At or about 11.40 the on call consultant, Dr Tay attended from the adjacent surgical theatre. Dr Tay found the pursuer's cervix to be fully dilated with the vertex still at 1 cm above the station and in the OP position. Dr Tay decided the pursuer should be delivered by Caesarean section. General anaesthetic was administered. K was delivered in a poor condition at or about 11.50. The umbilical cord was found to be tightly around K's neck and also over her shoulder. In the course of the pursuer's labour the first indication of significant foetal distress began around 11.05. An earlier decision to resort to Caesarean section would not have been justified. It was reasonable for Dr Jones to attempt spinal anaesthesia in the circumstances. Spinal anaesthesia for emergency Caesarean section is commonplace particularly, as in the pursuer's case, if the mother has eaten within the last 4-6 hours. Spinal anaesthetic is associated in the circumstances with a much lower maternal risk than is general anaesthetic. Dr Jones had a brief attempt at spinal insertion, recognised it was going to prove difficult and decided to convert to general anaesthesia."
Against the factual background admitted and averred by the defenders, it is averred that the medical and midwifery staff complied with all duties properly incumbent upon them.
The pleadings in relation to causation
[5] It is not in dispute that the child CK has cerebral palsy, is significantly disabled, is microcephalic, exhibits the features of dystonic tetraplegic cerebral palsy and will have severe neurological impairment for the whole of her life. Both parties accept that her condition is indicative of hypoxic ischaemic encephalopathy. The pursuer avers that it was the failure of duties by the anaesthetic and obstetric staff which caused or contributed to the neurological disability of CK. The defenders aver at page 17B-D that the child's condition indicates
"a short term hypoxic episode during the late stages of labour. If the child had been born between 11.34 and 11.38 instead of at 11.50 (as the pursuer contends) she would still have sustained significant structural brain damage. While her intellectual function and mobility would have been better than they are, they would not have been normal. She would have had bulbar involvement with consequent feeding and speech difficulties."
The Evidence
[6] A number of factual witnesses about the events on 11 May 1998 were led by counsel for the pursuer. The witnesses to fact were led in this order:
(1) the pursuer;
(2) Mr K, the pursuer's husband;
(3) Alison McWalter, one of the midwives responsible for the care of the pursuer, who attended her for most of the period after admission to the labour suite. Her qualifications and experience are recorded in paragraph 9 of the Joint Minute (19 of process);
(4) Dr Sharon Cameron, a second year specialist obstetric registrar who attended the pursuer shortly after 11 am and was involved in her care thereafter, including the delivery of CK by caesarean section. Her qualifications and experience are set out in her CV 7/10 of process;
(5) Dr Karin Jones who gave evidence by video link from Australia. She was an anaesthetic registrar in her first month of a twelve month contract at the hospital, who attended the pursuer after her transfer from the labour ward to theatre up to the period of delivery of CK. Her qualifications...
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