Reclaiming Motion Lt (as Guardian Of Rc) Against Lothian Nhs Health Board
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2019] CSIH 20 |
| Date | 03 April 2019 |
| Docket Number | A306/13 |
| Court | Court of Session |
| Published date | 03 April 2019 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2019] CSIH 20
A306/13
Lord Justice Clerk
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in the reclaiming motion
LT (as guardian of RC)
Pursuer and Reclaimer
against
LOTHIAN NHS HEALTH BOARD
Defenders and Respondents
Pursuer and reclaimer: Milligan QC, Bell; Digby Brown LLP
Defenders and respondents: Ferguson QC, Doherty QC; NHS Central Legal Office
3 April 2019
Introduction
[1] The pursuer is the mother and guardian of RC, a son who was born by spontaneous
vaginal delivery in the defenders’ hospital on a date in 2005. The time of birth was recorded
as 2327 hours on that date. The pursuer avers that at about the age of three years RC was
2
diagnosed as suffering from severe cerebral palsy and that he has very serious associated
disabilities. She further avers that RC’s condition is the result of a period of significant
hypoxia-ischaemia and consequent brain damage which occurred immediately before his
birth and, in particular, in the period of about 45 minutes before his birth. The pursuer seeks
reparation from the defenders on behalf of RC for his injury and damage on the ground of
alleged fault and negligence for which the defenders are liable.
[2] The reclaiming motion, which is at the instance of the pursuer, is against the
interlocutor of the Lord Ordinary (Lady Wolffe), dated 3 April 2018, repelling the pleas-in-
law for the pursuer, sustaining the second and third pleas-in-law for the defenders and
assoilzing the defenders from the conclusions of the summons.
[3] The interlocutor of 3 April 2018 was pronounced after a three-week proof restricted
to the question of negligence; questions of causation and quantification of damages having
been left over for later determination if necessary.
The scope of the reclaiming motion
[4] In large part the pursuer’s case is concerned with the interpretation of the results of
the electronic foetal monitoring (“EFM”) of the pursuer using a cardiotocograph machine
during the pursuer’s labour and, in particular during the last two hours of that labour (after
2126 hours). This period was when labour was in its second stage, in other words the cervix
was fully dilated and the foetus was being pushed through the vaginal canal.
[5] As the Lord Ordinary records at para [7] of her opinion and as is very familiar, EFM
of a woman in labour using a cardiotocograph machine is common. It is carried out by
affixing sensors to the mother which are intended to record, among other things, the uterine
activity (ie contractions) of the mother and the foetal heart rate (“FHR”). These recordings
3
are printed out in real time in a continuous manner onto a scroll of paper, which may be
referred as a foetal trace (“a trace”) or a cardiotocograph (“CTG”). A CTG records the level
of FHR at particular points of time and the pattern of its increase (“acceleration”) and
decrease in speed (“deceleration”) from the mean level (“the baseline”) over a period of time
in parallel with uterine contractions. Decelerations may be “early” or “late”. Early
decelerations are repetitive uniform decelerations whose onset is early in a contraction and
which return to the baseline at the end of the contraction. Late decelerations are repetitive
uniform decelerations with onset mid to late in a contraction with a nadir more than
20 seconds after the peak of the contraction and whose end is after completion of the
contraction. Comparison of FHR at different points of time indicates the extent to which it
fluctuates (“variability”). Assessment of these readings allows suitably qualified clinicians
to come to a view as to the condition of the foetus during labour and, in particular, whether
it may be suffering from hypoxia. Such an assessment is an exercise in interpretation in the
sense that suitably qualified clinicians may come to different conclusions from a
consideration of the same CTG. In the present case the expert witnesses led for the pursuer
interpreted the relevant portion of the CTG differently from the way in which it was
interpreted by the expert witness led for the defenders. A particular point of difference was
where the baseline should be located. As will be apparent, the location of the baseline
determines whether an excursion or change in FHR falls to be regarded as an acceleration or
a deceleration.
[6] Again as is recorded by the Lord Ordinary (paras [9] to [17] of her opinion), at the
relevant time guidance on the use and interpretation of cardiotocography in intrapartum
foetal surveillance had been provided by the Royal College of Obstetricians and
Gynaecologists by way of Evidence-based Clinical Guideline Number 8 of 2001, The Use of
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