Nadine Montgomery V. Lanarkshire Health Board
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2010] CSOH 104 |
| Date | 30 July 2010 |
| Docket Number | 1/500 |
| Court | Court of Session |
| Published date | 30 July 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 104 | |
| OPINION OF LORD BANNATYNE in the cause N.M. Pursuer; against LANARKSHIRE HEALTH BOARD Defenders: ________________ |
Pursuer: MacAulay Q.C., Milligan Q.C.; Balfour + Manson LLP
Defender: Anderson Q.C., Mackenzie; R F Macdonald
30 July 2010
INTRODUCTION
[1] This personal injury action came before me for proof. The parties were agreed that should the defenders be found liable to make reparation that the value of the claim was £5.25 million, inclusive of interest to 10 November 2009. The only issues therefore before me at the proof related to the merits of the action.
[2] The pursuer in this case is NM. She is the mother and guardian of the child SM (hereinafter referred to as "S") who was born on 1 October 1999. She brings the present case as guardian of S. Dr McL, consultant obstetrician was in charge of the pursuer's antenatal care and her labour in a maternity hospital run by the defenders and respondents. At or about 19.30 on 30 September 1999 the induction of the pursuer's labour was commenced. At or about 17.45 on 1 October 1999 S's head was delivered. He then exhibited signs of shoulder dystocia. As a result of said shoulder dystocia the remainder of his body was not delivered until about 17.57. As a result of the said delay in delivering the rest of his body S sustained a period of acute hypoxia lasting for at least 12 minutes from about 19.30 on 1 October 1999.
[3] As a result of said period of hypoxia S was clinically dead at birth. He required to be resuscitated. He suffered renal damage. He suffered epileptic seizures. He has been diagnosed with cerebral palsy of a dyskinetic type affecting all four limbs. Further, due to the procedures used to overcome the shoulder dystocia he sustained a brachial plexus injury involving Erb's palsy of the upper limb.
THE PURSUER'S GROUNDS OF ACTION
[4] The basis upon which the pursuer blames the defenders for the loss, injury and damage sustained by S is as follows:
The grounds of fault fall under two broad heads.
I. MANAGEMENT OF LABOUR
[5] The grounds under this head are that no ordinarily competent obstetrician acting with reasonable skill and care would have:
(a) allowed a diabetic woman of short stature with macrosomic foetus in "early trial of labour" whose foetal heartbeat was grossly abnormal to continue in labour and attempt a vaginal delivery;
(b) failed to recommend delivery by caesarean section between 08.10 and 17.00 hours on 1 October at the latest.
(c) failed to take foetal blood samples between 08.10 and 17.00 hours.
These grounds are all broadly predicated on an interpretation of the cardiotochograph trace (number 6/59 of process pages 3 to 8) (hereinafter referred to as the "CTG trace"). The CTG trace was made while the pursuer was in labour. These broad grounds were developed in the course of the evidence and submissions and it ultimately came to be argued on behalf of the pursuer: that there had been a failure of care by Dr McL at four stages in the course of the labour, namely: at or about 08.10; 12.30; 13.45 and 16.00. The failure of care was characterised as follows: that it was mandatory for Dr McL to carry out a foetal blood sample and if no such foetal blood sample (hereinafter referred to as "an FBS") was carried out to perform a caesarean section first at 08.10, which failing at 12.30; which failing at 13.45; which failing at 16.00. This contention was predicated primarily on the basis of the expert evidence given on behalf of the pursuer that the CTG trace for approximately one hour prior to each of these times was pathological and thus either an FBS or caesarean section was necessary.
II. DUTY OF DISCLOSURE/INFORMED CONSENT
[6] The grounds under this head are that no ordinarily competent obstetrician acting with reasonable skill and care would have:
(a) failed to advise the pursuer of the risks of vaginal delivery
(b) failed to inform the pursuer of the risks during vaginal delivery of shoulder dystocia and
(c) failed to offer the pursuer the option of delivery by caesarean section
[7] These grounds are all related to the antenatal period.
[8] Certain further grounds were advanced on behalf of the pursuer in the closed record, however, these were not insisted upon by Mr MacAulay Q.C., senior counsel for the pursuer.
MATTERS NOT IN DISPUTE RELATIVE TO THE ANTENATAL PERIOD AND LABOUR
[9] It was clear from the evidence, the terms of the joint minute (no 24 of process) and parties' submissions that a number of factual matters relative to the pursuer herself; her ante-natal care and her labour were not in dispute. In order to give context to the evidence of the various medical witnesses which I will require to turn to it is perhaps convenient to set out these undisputed matters which were namely:
· That in 1999 the pursuer was pregnant with her first child.
· That at that time she was 24 years old.
· That the estimated date of delivery of S at 40 weeks gestation was 10 October 1999.
· That the pursuer is 1.55 metres tall.
· That she suffers from insulin dependent diabetes mellitus.
· That as a result of her diabetic condition she attended the combined obstetric and diabetic antenatal clinic at the maternity hospital during pregnancy.
· That women suffering from diabetes are likely to have larger than average babies and the pursuer was informed of this risk during the course of her pregnancy. That in addition they are at an increased risk of (1) mechanical problems when giving birth either due to the baby's head failing to descend (this is known as cephalopelvic disproportion, hereinafter referred to as "CPD") and CPD may be absolute (where the baby's head cannot be delivered) or relative where the baby's head is delivered, or, the shoulders become stuck above the pelvis and this is known as shoulder dystocia; and (2) foetal abnormalities and stillbirth in the later stages of pregnancy. For these reasons the pursuer's pregnancy was defined as a high risk pregnancy requiring intensive monitoring.
· That the pursuer studied molecular biology at Glasgow University and obtained a BSC. Thereafter she worked for a pharmaceutical company as a hospital specialist.
· That the pursuer's mother and her sister are general practitioners.
· That the pursuer first attended the said clinic on or about 9 February 1999.
· That during the course of her pregnancy she attended regularly at the said clinic and repeated ultrasound examination was performed on the pursuer in order to assess foetal size and growth. That it is generally accepted that estimates of birth weight by use of ultrasound is not accurate and that this means of assessment has a margin of error of plus or minus 10%.
· That in particular ultrasound examination was performed on the pursuer on 12 February, 25 February, 17 March, 31 March, 19 May, 25 May, 21 July, 18 August, 1 September and 15 September 1999.
· That in terms of the estimated foetal weight chart for the pursuer (6/59 of process, page 178) at the 28th week of her pregnancy the estimated foetal weight was between the 50th and 95th centile; at the 32nd week the estimated foetal weight was just below the 95th centile; at the 34th week the estimated foetal weight was just below the 95th centile and as at the 36th week the estimated foetal weight was on the 95th centile.
· That no scan took place at the 38th week of pregnancy. That no scan took place at 38 weeks as Dr McL had decided that the pursuer was being made more anxious by these and it was not psychologically beneficial for her to have a further scan.
· That the pursuer regularly saw Dr McL at the said clinic. She did not see her at the 32nd and 38th week appointments.
· That at the 38th week appointment she saw Dr I.
· That at the 38th week appointment the pursuer was told by Dr I that she was to be brought in for induction of labour on 30 September. That at said date her pregnancy was at 38 weeks plus 4.
· That the birth weight of S was estimated by Dr McL to be 3.9kgs.
· That the pursuer attended hospital on that date at or about 17.50. That at or about 19.30 the pursuer was given 2mg of Prostaglandin. That this was given in order to induce labour. Her cervix was noted at that time to be 2 centimetres long and closed. Her bishop score was noted to be 3.
· That at about 05.45 on 1 October a member of the first defender's medical staff ruptured the pursuer's membranes producing clear amniotic fluid and labour started at that time.
· That from that time S's heart rate was monitored using the CTG to produce a CTG trace.
· That at or about 05.45 the pursuer was 3 centimetres dilated.
· That at or about 06.00 she was given an epidural. That from about 05.57 to 06.40 the CTG trace was suspended.
· That the pursuer was seen by Dr I at or about 08.15.
· That at or about 09.30 the pursuer underwent a vaginal examination by Dr McL and her cervix was 6-7 centimetres dilated. S's head at that stage was believed to be in the LOA position, a position that is favourable for vaginal delivery.
· That at or about 11.35 the pursuer was seen by Dr McL.
· That between 09.30 and about 12.30 the pursuer suffered a secondary arrest in labour and her cervix as at about 12.30 remained 6-7 centimetres dilated. That at about 12.30 she was seen by Dr D. Thereafter a vaginal examination was carried out by Dr McL.
· That at or about 13.00 intravenous syntocinon infusion at the rate of 10 IU at 6mls per hour was commenced.
· That at or about 13.45 the pursuer was examined by Dr McL.
· That syntocinon was given in order to deal with the said secondary arrest.
· That the rate of syntocinon infusion was increased at or about 13.25; 14.05; 14.45 and after about 15.20.
· That a vaginal examination was carried out at 16.00 by Dr McL and it was noted that the pursuer's cervix was fully dilated with the foetal head stationed at 1 centimetre above the ischial spines.
· That the pursuer was examined by Dr McL...
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