Veronica Dineley V. Lothian Health Board
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2007] CSOH 154 |
| Docket Number | A174/05 |
| Year | 2007 |
| Date | 29 August 2007 |
| Court | Court of Session |
| Published date | 29 August 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH | |
| A174/05 | OPINION OF LORD HODGE in the cause VERONICA DINELEY Pursuer; against LOTHIAN HEALTH BOARD Defenders: ________________ |
Pursuer: J. Campbell, Q.C., Henderson; HBJ Gateley Wareing (Scotland) LLP
Defenders: Ferguson, Q.C., MacSporran; R.F. Macdonald
29 August 2007
[1] This is an action for damages for alleged medical negligence during the final hours before the birth on 23 February 1996 of Jessica Dineley in the Eastern General Hospital in Edinburgh. Jessica has dyskinetic cerebral palsy and the parties have agreed in a joint minute that the cause of Jessica's condition was an acute hypoxic episode which occurred in the twenty-four minutes immediately before she was delivered by emergency caesarean section. On 11 May 2007 the court ordered that the proof be confined to the issue of liability and that the quantification of any damages be held over to a future date. In the joint minute parties agreed that £3,800,000 would be paid as damages if the defenders were found liable, under reservation of a further claim by the pursuer in relation to assistance technology. As a result the proof which I have heard dealt only with the issue whether there was negligence in the care of Mrs Dineley's baby in the period immediately before her birth which caused or failed to prevent that acute hypoxic episode.
[2] The pursuer sought to establish that the obstetric registrar, Dr Maziah Ahmad Mahadin ("Dr Maziah"), was negligent in her care of Jessica in the following ways. First, it was asserted that she was negligent in her decision to attempt to deliver Jessica by a trial of forceps in the operating theatre using Kielland's forceps as, having regard to the known circumstances of Mrs Dineley's labour, the prospects of achieving an assisted vaginal delivery were poor. Secondly, it was alleged that Dr Maziah negligently performed the trial of forceps by raising the baby's head too far when attempting to rotate her head and thus allowed a cord prolapse or cord occlusion to occur.
[3] As well as witnesses of fact, I heard the expert opinion evidence of Professor Alan Cameron, a consultant obstetrician at the Queen Mother's Hospital, Yorkhill, whom the pursuer called. The defenders led the expert evidence of Professor Deirdre Murphy who is a consultant obstetrician and gynaecologist at Trinity College & Coombe Women's Hospital, Dublin. She is also chairman of the Guidelines and Audit Committee of the Royal College of Obstetricians and Gynaecologists ("RCOG") and a co-author of the Guidelines on Operative Vaginal Delivery produced by the RCOG in 2005 ("the RCOG guidelines").
The events leading up to Jessica's birth
[4] Having received appropriate ante-natal care, Mrs Dineley was admitted to the Eastern General Hospital in Edinburgh at 0830 hours on 22 February 1996 after a pregnancy of forty-one weeks in order to induce the birth of her first child, Jessica. At 0900 hours a consultant obstetrician, Dr Scrimgeour, examined her in the company of Dr Maziah. At 1640 hours doctors performed an artificial rupture of the membranes and clear liquor was observed. At this time Mrs Dineley's cervix was 2 cm dilated and the baby's head was recorded as being 3 cm above the ischial spines. The first stage of labour was uneventful. Mrs Dineley made good progress which was recorded on the partogram. At 1900 hours the cervix was 5 cm dilated and the baby's head was recorded in the nursing notes as being between 1 cm and 2 cms above the ischial spines. At 2200 hours the midwife, Mrs Dunn, examined Mrs Dineley and recorded that she felt rectal pressure at the height of contractions and that the baby's head was not yet visible. Mrs Dunn conducted a vaginal examination at 2230 hours and recorded that the cervix was then 9 cm dilated and the baby's head was 2 cm above the ischial spines. Mrs Dunn was able to feel the anterior fontanelle of the baby's head and recorded that the head was deflexed and the back of the baby's head, the occiput, was in a position between transverse ("OT") and anterior ("OA"). The baby's head was still not visible. Mrs Dunn repositioned Mrs Dineley from side to side to encourage rotation and descent of the baby's head. Throughout this period, and indeed until the trial of forceps, readings of the foetal heart rate were reassuring.
[5] At 2300 hours Mrs Dunn recorded that clear liquor was draining and that there was "show ++". The reference to "show" recorded that Mrs Dineley was expelling the mucus plug from her cervix and the "++" indicated that on a scale of mild, moderate and marked, Mrs Dunn assessed the outflow as moderate. At 2330 hours Mrs Dunn recorded that Mrs Dineley was feeling expulsive throughout contractions and that the vertex was visible in the distance. At 0000 hours on 23 February 1996 she again recorded that the vertex was visible in the distance and that there had been no descent of the baby's head yet.
[6] At 0045 hours Mrs Dunn conducted anther vaginal examination and recorded that the cervix was fully dilated and that the baby's head was now at the ischial spines. She noted a query whether the baby's head was in the occipito- posterior position ("OP"). While this was the first record of Mrs Dineley's cervix being fully dilated, it is likely that full dilatation occurred earlier. On this issue I accept the evidence of the pursuer's expert, Professor Cameron, and of the consultant whom the registrar, Dr Maziah, consulted, Dr Alan Brown, that it is likely that the second stage of Mrs Dineley's labour commenced at about or shortly after 2330 hours on 22 February. Professor Murphy expressed the view that it was not possible to say precisely when second stage commenced in the absence of a vaginal examination but she accepted that in Mrs Dineley's case it was likely that she reached the second stage of her labour at some time shortly after 2330 hours. At 0100 hours on 23 February Mrs Dunn recorded that Mrs Dineley was attempting active pushing, that her contractions were expulsive but short-lived, and that the baby's head was not descending. To assist the strength of the contractions, Mrs Dunn requested a senior house officer to site a drip to allow the administration of oxytocin and at 0130 hours she obtained the authorisation of a registrar to administer that drug. In accordance with an established protocol, she started the administration of the drug at 0135 hours and doubled the dose every twenty minutes thereafter until by 0215 hours Mrs Dineley was receiving 12 mls per hour of the drug. At that time Mrs Dunn recorded that the contractions were improving in strength and frequency but that there was no real descent of the baby's head.
[7] Observing that Mrs Dineley was getting tired from the effort of pushing and that there was no descent of the baby's head, Mrs Dunn decided at 0220 hours to contact Dr Maziah to review Mrs Dineley's case. Dr Maziah arrived at the labour room within about ten minutes and shortly after 0230 hours reviewed the nursing notes, was briefed by Mrs Dunn, examined the cardiotocograph trace of the mother's contractions and the foetal heartbeat and conducted a vaginal examination. Dr Maziah recorded in the nursing notes that Mrs Dineley had been pushing for one hour and there had been no obvious descent of the baby's head. She recorded that on vaginal examination she found the cervix to be fully dilated and the baby's head to be at the ischial spines. The baby's occiput was in a transverse position to the right ("ROT"). Dr Maziah felt the foetal head for moulding and initially formed the view that there was mild moulding (recording it as "moulding +") but on further feeling decided that there was no moulding (overwriting the entry as "moulding 0"). She also felt for caput or swelling of the foetal scalp and recorded an observation of "caput ++" or moderate swelling which she considered to be consistent with a normal labour. She considered that there was no evidence of serious cephalo-pelvic disproportion. As a result of her review of the nursing notes, her briefing and her examination of Mrs Dineley, Dr Maziah reached the view that there had been a transverse arrest of labour and formed the plan of conducting a trial of Kielland's forceps in the operating theatre where she could promptly perform a caesarean section if she encountered difficulty in attempting to deliver Jessica by rotational forceps.
[8] Dr Maziah, having formed this plan, telephoned the on call consultant, Dr Alan Brown, and informed him of the history of Mrs Dineley's labour, her findings and her plan. She informed Dr Brown that it was her impression that there was no obvious disproportion between the baby's head and the mother's pelvis and that she thought that she should give the mother the benefit of a trial of forceps. Dr Brown explained in his evidence that, while he could not recall Mrs Dineley's case, he would have received a detailed account of the labour and the findings from Dr Maziah, who was a competent registrar, and that in any event he would have asked for any information which he needed to decide on the appropriate method of delivery. He approved of Dr Maziah's plan to attempt a rotational forceps delivery as a trial of forceps in the operating theatre.
[9] On returning to the labour room after consulting Dr Brown, Dr Maziah and the midwives then prepared to deliver the baby in the operating theatre. They called an anaesthetist who administered an epidural anaesthetic in the operating theatre at about 0320 hours when the infusion of oxytocin was discontinued. Dr Maziah returned to the operating theatre at about 0330 hours and she and the midwives prepared Mrs Dineley for forceps delivery. The cardiotocograph trace was intermittent while Mrs Dineley was taken to theatre and prepared for the operation because she was being moved about. But the midwives noted that the foetal heart was satisfactory at 0330 hours and...
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