N M V. Lanarkshire Health Board
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Eassie,Lord Hardie |
| Judgment Date | 23 January 2013 |
| Neutral Citation | [2013] CSIH 3 |
| Court | Court of Session |
| Published date | 23 January 2013 |
| Docket Number | A296/06 |
| Date | 23 January 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Hardie Lord Emslie | [2013] CSIH 3 A296/06 OPINION OF THE COURT delivered by LORD EASSIE in causa N M Pursuer and Reclaimer; against LANARKSHIRE HEALTH BOARD Defenders and Respondents: _______________ |
Defenders and Respondents: Anderson, QC; McKenzie; Scottish Health Service Central Legal Office
23 January 2013
Introductory
[1] The pursuer and reclaimer in this action seeks reparation on behalf of her son in respect of the grave injury which he sustained at the time of his birth in a maternity hospital run by the defenders and respondents on 1 October 1999. She attributes that injury to negligence on the part of a consultant obstetrician, Dr McL, employed by the defenders at that hospital. Following a proof, the Lord Ordinary concluded that negligence had not been established and he assoilzied the defenders. The pursuer reclaims against that decision.
[2] In paragraph [9] of his opinion the Lord Ordinary sets out a number of factual matters about which there was essentially no dispute. Among others, the pursuer had not previously given birth to a child. She is of relatively small stature, her height being 1.55m. She suffers from diabetes and consequently attended the combined obstetric and diabetic ante-natal clinic at the maternity hospital. Women who suffer from diabetes are likely to have larger than average babies and the pursuer was made aware of this during the course of her pregnancy. Such women are at greater risk of presenting mechanical problems when giving birth, either through cephalopelvic disproportion resulting in the baby's head failing to descend, or through shoulder dystocia, in which the baby's shoulder or shoulders may become lodged above the pelvis. There is also greater risk of foetal abnormalities and stillbirth in later stages of pregnancy. For these reasons the pursuer's pregnancy was regarded as a high risk pregnancy requiring intensive monitoring.
[3] During her pregnancy the pursuer attended regularly at the ante-natal clinic. Repeated ultrasound examinations were conducted in order to assess foetal size and growth. Such examinations were performed on 12 February, 25 February, 17 March, 31 March, 19 May, 25 May, 21 July, 18 August, 1 September and 15 September 1999. At the 28th week of the pursuer's pregnancy the estimated foetal weight was between the 50th and 95th centile; at 32 weeks and 34 weeks, it was just below the 95th centile and at 36 weeks (namely on 15 September 1999) it was just on the 95th centile. No ultrasound scan was arranged for week 38, since Dr McL considered it would not be psychologically beneficial to the pursuer to have a further scan. On the basis of the results of the scans and clinical examination Dr McL estimated the birth weight of the baby at 3.9kg. It is generally accepted that ultrasound indications of weight have a margin of error of plus or minus 10% of the indicated foetal weight.
[4] On 29 September 1999 the pursuer was seen by a registrar, Dr I, and arrangements were made for labour to be induced on 1 October 1999. The pursuer attended at the hospital on the evening of 30 September 1999 and prostaglandin was administered to her with a view to inducing labour. At about 0545 hours on 1 October 1999 labour began and from that time onwards the baby's heart rate was monitored by cardiotocography ("CTG"). The CTG trace also monitored the mother's contractions.
[5] Labour progressed to the extent that at 0930 hrs the cervix was 6-7 cms dilated and the baby's head was in the "LOA" position, favourable for vaginal delivery. Thereafter however the pursuer underwent a secondary arrest of labour. Following administration of syntocinon at about 1300 hrs labour resumed and when the pursuer was examined at about 1600 hrs by Dr McL the cervix was fully dilated with the foetal head 1cm above the ischial spines.
[6] The pursuer was seen again by Dr McL at 1700 hrs and a decision was taken to attempt a forceps delivery. The pursuer was transferred to theatre, where Dr McL proceeded to attempt such a delivery. At 1745 hrs the baby's head was delivered but thereafter the baby became subject to shoulder dystocia. Various techniques were attempted to free the baby but it was not until 1757 hrs that he was finally delivered. Unfortunately, during those 12 minutes the umbilical cord was completely or partially occluded, thereby depriving the baby of oxygen. As a consequence of that deprivation the baby suffered injuries which have left him with cerebral palsy, and a brachial plexus injury resulting in an Erb's palsy, producing serious permanent disabilities. Given those very grave consequences, we have naturally found this to be an anxious and difficult case, but it will be appreciated that the role of this court is that of reviewing, in so far as it is open to an appellate court to do so, the decision of the Lord Ordinary on the particular grounds of action advanced in the case.
The grounds of action
[7] The grounds upon which it was submitted to the Lord Ordinary that Dr McL had been at fault embraced two distinct branches.
[8] First, in respect of the ante-natal care of the pursuer, it was contended that the pursuer ought to have been given specific advice about the risks, in vaginal birth, of cephalopelvic disproportion and, particularly, shoulder dystocia and she should have been offered and counselled upon the option of delivery of the baby by caesarean section. No competent obstetrician, acting with reasonable care, would have omitted to tender that advice. Had the pursuer been properly informed about the risks entailed in vaginal birth she would, it is averred, have elected to be delivered of her baby by caesarean section.
[9] The second branch of the case advanced against the defenders concerned the management of the pursuer's labour. The criticisms advanced under this branch turned principally on the interpretation of the CTG trace and the steps which it was contended should have been taken in response to what was indicated by the trace. In particular, it was submitted to the Lord Ordinary on behalf of the pursuer that at any of four points in the course of the labour on 1 October 1999, namely at 0810 hrs, 1230 hrs, 1345 hrs and 1600 hrs approximately, the CTG trace showed features which no competent obstetrician exercising reasonable care would have interpreted otherwise than as requiring the taking of a foetal blood sample, which failing the carrying out of a caesarean section. Much of the expert evidence tendered by both parties was concerned with what was to be seen on the trace, its interpretation and whether omission to pursue the intervention desiderated - namely the taking of a foetal blood sample or performance of a caesarean section - would constitute a negligent failure on the part of an obstetrician.
[10] The argument advanced in the reclaiming motion similarly fell into two chapters, which for convenience were referred to by counsel as the "consent issue" and the "management of labour issue". However, as regards the latter, while the pursuer's submission to the Lord Ordinary had been to the effect that there was such a failure to intervene at four points or stages during the course of the labour, the submissions advanced on the pursuer's behalf in the reclaiming motion respecting the management of labour were confined to the last of the points or stages, namely the examination by Dr McL of the pursuer and the CTG trace at approximately 1600 hours.
The consent issue
[11] Since the matters canvassed in this chapter of the reclaiming motion are concerned in broad terms with duties to give advice about risks it is, we think, useful to preface consideration of those issues by reference to the evidence respecting risks concerning shoulder dystocia. This evidence came principally from Dr McL and was not disputed to any material extent. In the case of diabetic women giving birth to a baby having a birth weight of or over approximately 4kg, shoulder dystocia might occur in approximately 9 to 10% of cases. However, in the vast majority of those cases the problem was dealt with by simple midwifery procedures, with the mother often being unaware of any problem having occurred. Only in about 1 in 500 of that 9 to 10% of cases did shoulder dystocia result in brachial plexus injury; and of the small number of babies with such an injury, the percentage of those sustaining more severe injury such as cerebral palsy was very small.
[12] As the Lord Ordinary records in his opinion, there were two branches to the case advanced on behalf of the pursuer in respect of the duty on Dr McL to provide ante-natal advice on risks.
[13] In summary, first, it was submitted that there was a duty upon the obstetrician, voluntarily and in the absence of any inquiry, to advise a diabetic mother such as the pursuer of the risks of shoulder dystocia. The Lord Ordinary was naturally referred to the leading case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others [1985] 1 AC 871- "Sidaway", but counsel for the pursuer sought to invoke Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167 - "Pearce" - as innovating on Sidaway and formulating the duty upon the medical practitioner as being that of informing the patient of any substantial risk which would affect the judgment of a reasonable patient. Under reference to the judgment of Nicol J in Jones v North West Strategic Health Authority 2010 MLR 90, counsel for the pursuer contended to the Lord Ordinary that it was the 10% risk of the mere occurrence of shoulder dystocia, and not the much smaller risk of an adverse outcome should shoulder dystocia occur, which mattered; and on that basis the risk was such that, notwithstanding the expert evidence of medical practice which was supportive of Dr McL's approach of not...
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