BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Montgomery v Lanarkshire Health Board [2010] ScotCS CSOH_104 (30 July 2010)
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH104.html
Cite as: [2010] CSOH 104, [2010] ScotCS CSOH_104

[New search] [Context] [Printable version] [Help]


OUTER HOUSE, COURT OF SESSION

[2010] CSOH 104

    

OPINION OF LORD BANNATYNE

in the cause

NADINE MONTGOMERY

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 Nadine Montgomery. She is the mother and guardian of the child Sam Montgomery (hereinafter referred to as "Sam") who was born on 1 October 1999. She brings the present case as guardian of Sam. Dr McLellan, consultant obstetrician was in charge of the pursuer's antenatal care and her labour at Bellshill Maternity Hospital. 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 Sam'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 Sam 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 Sam 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 Sam 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 McLellan 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 McLellan 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 Sam 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 Bellshill 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 McLellan 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 McLellan 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 Ibrahim.

       That at the 38th week appointment the pursuer was told by Dr Ibrahim 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 Sam was estimated by Dr McLellan 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 Sam'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 Ibrahim at or about 08.15.

       That at or about 09.30 the pursuer underwent a vaginal examination by Dr McLellan and her cervix was 6-7 centimetres dilated. Sam'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 McLellan.

       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 Dhingra. Thereafter a vaginal examination was carried out by Dr McLellan.

       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 McLellan.

       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 McLellan 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 McLellan at or about 17.00.

       That at or about 17.00 Dr McLellan suggested to the pursuer that she be transferred to theatre to re-examine her and, if vaginal examination was satisfactory to aim for trial of vaginal delivery.

       That Dr McLellan then proceeded to attempt a vaginal delivery.

       That at about 17.45 Sam's head was delivered. Between about 17.45 and 17.57 Dr McLellan attempted without success to deliver the rest of Sam's body.

       That Sam during the said 12 minutes exhibited shoulder dystocia in that his shoulders were obstructing delivery.

       That during the foregoing twelve minutes the umbilical cord was completely occluded. That during that time Sam was deprived of oxygen.

       That as a result of being deprived of oxygen for said period of time Sam suffered the injuries earlier described in this opinion.

       That at no point during the antenatal period did Dr McLellan inform the pursuer of the risks of shoulder dystocia, or indeed any mechanical obstruction.

       That no foetal blood sampling was carried out during the course of the pursuer's labour.

[10] As described above from about 05.40 onwards continuous CTG tracing was available showing the foetal heart rate patterns in conjunction with the mother's contractions. The CTG trace is monitored throughout labour in order to assess foetal wellbeing and in particular in order to detect signs of developing foetal hypoxia. The trace readings were produced. A considerable proportion of the evidence which I heard in relation to the first branch of the pursuer's case was taken up with an examination of these readings and discussion as to how the various parts of the trace should properly be described and interpreted. The various opinions which the medical witnesses expressed as to the appropriateness of the care provided to the pursuer during the period of labour all flowed from their individual assessments of the import of the CTG trace readings. Accordingly before turning to look at the evidence and submissions in detail it may be convenient to set out certain definitions and descriptions of individual features of the foetal heat rate in that many of these features were frequently referred to in the course of the evidence which I heard. The definitions and descriptions come from The Use Of Electronic Foetal Monitoring (number 7/7 of process) which is an evidence based clinical guideline published by the Clinical Effectiveness Support Unit. It was published under the auspices of the Royal College of Obstetricians and Gynaecologists. The definitions and descriptions which are hereinafter listed were broadly accepted by the various medical experts giving evidence

"Baseline fetal heart rate

The mean level of the FHR when this is stable, excluding accelerations and decelerations. It is determined over a time period of 5 or 10 minutes and expressed in bpm. Preterm fetuses tend to have a value towards the upper end of this range. A trend to a progressive rise in the baseline is important as well as the absolute values.

-Normal Baseline FHR

-Moderate bradycardia

-Moderate tachycardia

-Abnormal bradycardia

-Abnormal tachycardia

110-160 bpm

100-109 bpm

161-180 bpm

< 100 bpm

> 180 bpm

Baseline variability

The minor fluctuations in baseline FHR occurring at three to five cycles per minute. It is measured by estimating the difference in beats per minute between the highest peak and lowest trough of fluctuation in a one-minute segment of the trace.

Normal baseline variability

Greater than or equal to 5 bpm between contractions.

Non-reassuring baseline variability

Less than 5 bpm for 40 minutes or more but less than 90 minutes.

Abnormal baseline variability

Less than 5 bpm for 90 minutes or more.

Accelerations

Transient increases in FHR of 15 bpm or more and lasting 15 seconds or more. The significance of no accelerations on an otherwise normal CTG is unclear.

Decelerations

Transient episodes of slowing of FHR below the baseline level of more than 15 bpm and lasting 15 seconds or more.

Early decelerations

Uniform, repetitive, periodic slowing of FHR with onset early in the contraction and return to baseline at the end of the contraction.

Late decelerations

Uniform, repetitive, periodic slowing of FHR with onset mid to end of the contraction and nadir more than 20 seconds after the peak of the contraction and ending after the contraction. In the presence of a non-accelerative trace with baseline variability less than 5 bpm, the definition would include decelerations less than 15 bpm.

Variable decelerations

Variable, intermittent, periodic slowing of FHR with rapid onset and recovery. Time relationships with contraction cycle are variable and they may occur in isolation. Sometimes they resemble other types of deceleration patterns in timing and shape.

Atypical variable decelerations

Variable decelerations with any of the following additional components:

-loss of primary or secondary rise in baseline rate

-slow return to baseline FHR after the end of the contraction

-prolonged secondary rise in baseline rate

-biphasic deceleration

-loss of variability during deceleration

-continuation of baseline rate at lower level

Prolonged deceleration

An abrupt decrease in FHR to levels below the baseline that lasts at least 60-90 seconds. These decelerations become pathological if they cross two contractions, i.e. greater than 3 minutes

Sinusoidal pattern

A regular oscillation of the baseline long-term variability resembling a sine wave. This smooth, undulating pattern, lasting at least 10 minutes, has a relatively fixed period of 3-5 cycles per minute and an amplitude of 5-15 bpm above and below the baseline. Baseline variability is absent."

It may also be convenient before turning to the evidence and submissions to set forth certain further evidence which was not in dispute regarding hypoxia in labour and the related issue of acidosis.

1. Labour is by its very nature a hypoxic event for the foetus.

2. The foetus is designed to cope with hypoxia. The foetus can cope with complete deprivation of oxygen for a materially longer period than an adult.

3. Foetal hypoxia is: a diminished supply or lack of oxygen to the foetus.

4. Acidosis is a rise in the foetus's hydrogen ions in response to a hypoxic insult.

5. Acidosis is the end product of an established hypoxia.

6. Foetal blood sampling is a means of assessing whether the foetus is acidotic. A blood sample is taken from the foetus and the PH calculated. It is used to determine if the foetus is developing hypoxia.

7. A foetus will not usually develop acidosis until lengthy hypoxia has eroded its buffering.

8. Only about 50% of foetuses showing late decelerations will be acidotic.

Lastly in the course of their evidence the pursuer's medical experts opined that certain sections of the CTG trace were pathological. In so doing they were referring to a categorisation of foetal heart rates contained in 7/7 of process which was in the following terms:

"Table 2.3 Categorisation of fetal heart rate (FHR) features

Feature

Baseline

(bpm)

Variability

(bpm)

Decelerations

Accelerations

Reassuring

110-160

> 5

None

Present

Non‑reassuring

100-109

Abnormal

161-180

< 100

> 180

Sinusoidal pattern

> 10 minutes

<5 for

> 40 but less

than 90 minutes

< 5 for

> 90 minutes

Early deceleration
Variable deceleration

Single prolonged deceleration up to 3 minutes

Atypical variable decelerations

Late decelerations
Single prolonged deceleration

> 3 minutes

The absence of accelerations with an otherwise normal cardiotocograph is of uncertain significance

EVIDENCE

[11] I heard from six witnesses who gave factual evidence as regards the antenatal period, namely: the pursuer; Dr Nasima Gillani (the pursuer's mother); Kerr Montgomery (the pursuer's ex-husband); Dr McLellan, Dr Clare Willocks and Marion Gillan, a midwife.

[12] As regards this period, as I have earlier set out, there was a large measure of agreement between the parties relative to what had occurred. The only two matters of materiality in dispute were first whether the pursuer had concerns about her ability to deliver Sam prior to the 36 week appointment and expressed these to Dr McLellan. Secondly whether she had not only expressed such concerns to Dr McLellan but in addition had expressly raised the question of what were the risks of vaginal delivery with Dr McLellan.

[13] In relation to the period of labour the only two witnesses who gave material factual evidence were the pursuer and Dr McLellan. There was little or no disagreement between parties as to factually what had happened during labour. The dispute regarding this period related almost entirely to the interpretation of the CTG. The only other dispute of any materiality related to the cause of a secondary arrest sustained by the pursuer.

[14] Lastly I heard from four expert medical witnesses, namely Professor James Neilson and Dr Peter Stewart on behalf of the pursuer and Dr Philip Owen and Dr Gerald Mason on behalf of the defenders. Each of those witnesses gave their opinions in relation to the issues of informed consent and the interpretation of the CTG.

THE PURSUER
[15] The pursuer gave evidence regarding the ante-natal period. She explained that the only risk she was informed of relative to her pregnancy by the doctors who were treating her was that she was at risk because of her diabetes of giving birth to a big baby. Her position was that as the pregnancy progressed and the baby grew larger she became very anxious. She said that she had expressed these concerns to Dr McLellan and had begun doing so from around the 28th week when the foetal weight had gone above the 50th centile (transcript page 65). She said that she had asked Dr McLellan questions and these had not been answered. In particular

"Q. What are these questions do you say were never answered? I asked what kind of problems could be encountered with a small mother having a large baby specifically, and what problems in particular could be encountered during delivery" (page 64 of the transcript)

Her position was that she wanted to have answers from Dr McLellan (page 23 of the transcript); that she wished to know the risks and benefits of each option (it was accepted at all hands that there were only two options: vaginal delivery or caesarean section) (page 24 of the transcript). By 15 September she said that she wanted to discuss with Dr McLellan the options and to understand the risks of the options. Her concern was such that by the 36th week Dr McLellan cancelled the 38 week scan as according to her Dr McLellan's position was that this was likely to increase her anxiety. Her broad position was that although she had raised these matters with Dr McLellan she had not received any answers. Dr McLellan had only said this to her:

"They were monitoring the baby with ultrasounds, and they would monitor that closely and if she thought there was a problem she would discuss it with me and it was not for me to be concerned about that, that was her job".

Because of this failure to answer her questions she asked her mother to accompany her to the 34th week appointment with Dr McLellan to see if she could, given that she was a fellow doctor, obtain answers from Dr McLellan. However, her mother had not obtained any such answers. Her position was that had she been offered a caesarean section she would have taken it. The pursuer was asked a number of questions about her labour, however, there was little in dispute about the factual position she spoke to and these matters are dealt with in the agreed facts section of this opinion.

KERR MONTGOMERY

[16] Kerr Montgomery is the former husband of the pursuer. His evidence was almost entirely confined to the ante-natal period. He accompanied the pursuer to certain of her ante-natal appointments. He stated that during the last one third of the pregnancy the pursuer expressed concerns to Dr McLellan about the size of the baby and her ability to deliver the baby vaginally. He described Dr McLellan as offhand and dismissive and that her position was that the size of the baby was not a concern; the baby was not absolutely big and if complications arose she would deal with these.

NAZIMA GILLANI

[17] The pursuer's mother gave evidence. It was again in all material respects confined to the ante-natal period. She confirmed the pursuer's position that she had gone to see Dr McLellan and that this was when the foetus was estimated at or about 8lbs. She asked Dr McLellan about the plans for delivery. She said to Dr McLellan that there were concerns about the size of the baby. She had now however said anything to Dr McLellan about risks. Dr McLellan's reply was that the pursuer was being monitored every two weeks and if she required a caesarean section it would be done. She, however, was offered no further explanation by Dr McLellan.

DR McLELLAN
[18] Her CV is set out in 7/21 of process and between pages 1 and 14 of the transcript of evidence relative to her.

ANTENATAL PERIOD

[19] Under reference to the medical notes (6/59 of process) at pages 100 and 101 Dr McLellan accepted that the pursuer at the 36th week appointment had expressed concern about the size of her baby. The pursuer's concerns were that the baby would be too big to deliver (page 43 of the transcript). She accepted that it was possible that on a number of previous occasions at the antenatal clinic the pursuer had expressed such concerns. She also accepted later in her evidence that the pursuer's concerns had been raised with her more than once (page 56 of the transcript). She had decided as a result of these expressions of concern that it was not psychologically beneficial to have an ultrasound scan at the 38th week (page 53 of the transcript). She did not accept that the pursuer had ever specifically asked her about the risks associated with her pregnancy. Had she done so she would have disclosed the risks (Volume 2 of the transcript, page 52). She did not mention shoulder dystocia to the pursuer. She did not consider that the risk of serious injury arising from shoulder dystocia, namely: cerebral palsy or a brachial plexus injury to the baby to be of such significance that it was appropriate to tell the pursuer about this. Her position as regards the degree of risk of such outcomes was as set out in detail at pages 17-19 of the second volume of her transcript.

[20] What she had said to the pursuer was this: that the pursuer in her view should be able to deliver vaginally and that if there were problems then a caesarean section could be performed. It was her position that in cases such as the pursuer if the baby's birth weight was thought to be over 4kgs she would have offered a caesarean section. In this case she estimated the birth weight to be 3.9kgs and thus she did not offer a caesarean section. She accepted that she had seen the pursuer's mother, however, she believed that this was at an early stage of the pregnancy. She did not believe that anything clinically significant had been raised by the mother (Volume 2 of the transcript, page 91). It was her position that if anything of clinical significance had been raised by either the pursuer or by her mother in relation to the question of risks this would have been noted in the medical records. It was her practice to note such things within the records. There were no such notes other than the entry relative to the 36 weeks appointment at which she accepted the pursuer had expressed certain concerns.

MANAGEMENT OF LABOUR AND CTG ANALYSIS

[21] Her position was that the trace from about 05.39 to 05.50 showed good variability with a baseline of about 135. From about 05.50 to when the epidural was given the trace showed decelerations coinciding with the contractions. It was a healthy trace. Following the epidural the trace restarted about 06.40. Her position thereafter in relation to the trace was that it showed reduced variability which in her view may have been due to the effects of the epidural. She then at or about 06.47 saw a variable deceleration, which was after the contraction; at 06.56 there was a variable shallow deceleration; a further fleeting deceleration was shown at 07.07 which was late in timing; at 07.12 there was an acceleration; at 07.14 another deceleration. This was however a variable deceleration. At or about 07.16 another deeper deceleration was shown which was late in timing; about 07.22 another deceleration which was after the contraction; at 07.26 and 07.30 shallower variable decelerations; at 07.37 another variable deceleration late in timing. At about 07.40 there was an acceleration and at 07.45 and 07.47 the same. At 07.53 and at 07.57 there were decelerations which were late in timing. By 08.00 the baseline had increased to about 160 and at 08.07 there was a possible shallow deceleration.

[22] In summary her opinion regarding that section of trace up to about 08.00 was that the variable decelerations were possibly due to cord compression. That possibly one or two of the decelerations were secondary to a degree of placental insufficiency. However, looking to the whole of the section of the trace there were no signs of hypoxia. Of particular relevance to her said opinion was the maintenance of baseline variability during the said period. She regarded the single most critical factor in showing the health of the foetus was the maintenance of variability (transcript pages 121 and 122). Dr McLellan explained that the importance of maintenance of variability in relation to the interpretation of a CTG was this: if maintained it implied that the foetus had an intact autonomic system. As a foetus became progressively hypoxic it reduced the blood flow to the vital organs. If the foetus was becoming significantly hypoxic the blood supply to the brain was reduced and the autonomic responses of the foetus became diminished causing a reduction in variability (page 156 to 160 of Volume 2 of her transcript). It was her position that not only was it of some importance if variability was maintained in the trace, but also if variability was maintained within a deceleration itself. Further it was her position that if a foetus responded to stimulation this was a further sign that the autonomic system was preserved. Thus for the foetus to register touch showed that the cerebral cortex was adequately profused.

[23] She also pointed to the following further reassuring factors within the said section of the trace, namely: the lack of uniformity in the decelerations (late decelerations are uniform); their lack of severity (by which she meant their lack of depth and their not lasting for significant periods of time).

THE DECISION AT ABOUT 08.10

[24] Her overall position was that when she examined the pursuer at about 8.15am she believed that the trace should be monitored but that no intervention was required. She did not believe that the trace was pathological.

[25] From about 08.30 to 09.20 Dr McLellan's position regarding the trace was that the baseline was around 150 with good variability and decelerations which were compatible with cord compression. She found comfort within the said section of the trace that when the foetus was palpated he responded to this by producing an acceleration. An acceleration was a reassuring sign as again it showed that the autonomic system was functioning.

[26] From about 09.24 to 11.35 when she saw the pursuer again Dr McLellan saw nothing of any significance on the trace. She noted at or about 09.50 an acceleration and at about 10.10 four to five proper late decelerations. On her examination at 11.35 she described the CTG trace as satisfactory.

[27] Between 11.52 and 12.22 she identified six late decelerations on the trace. Her position was that in the absence of other non-reassuring factors she did not believe that this was an indication of hypoxia. She pointed to the maintenance of variability and the lack of a tachycardia during said section. Decelerations which she had seen she described as not severe as they were not prolonged and repetitive. She was reassured by these factors.

THE DECISION AT 12.30

[28] She did not accept that it was necessary to do a foetal blood sample or deliver by caesarean section at or about 12.30. She did not believe that the picture shown in the said trace as at that time was pathological.

[29] From about 12.50 to about 13.20 she accepted she could see certain shallow late decelerations. From then to about 13.45 baseline variability was back to normal and an acceleration was seen. Her view was that after a short period the foetus had improved and she was reassured by this.

THE DECISION AT 13.45

[30] Her position was that if the pattern as shown between about 12.55 and 13.25 had been maintained she would have intervened. However the pattern recovered and as at 13.45 when she saw the pursuer she described the trace as satisfactory.

[31] Dr McLellan's view as to the whole period of the trace up to about 13.45 could be summed up in the following passage in her evidence:

"My approach to CTGs is that you assess the integrity of the baby by understanding the pathological, pathophysiological processes that are ongoing, and where variability is maintained, and it has been maintained for the vast majority of this trace from the outset, there are only short periods where variability is reduced, is that this baby is still coping with the demands of labour. The autonomic nervous system is intact and, therefore, the baby is still coping, so we've not hit a phase where there is significant hypoxia to this baby. There is not a significant hypoxic insult at this stage". (page 191 of her transcript).

From 14.45 to about 15.15 she accepted that there were persistent late decelerations associated with reduced variability. However, it was her position that this was not sustained for about 50 minutes to an hour and therefore there was no need for a caesarean section or an FBS. Thereafter there was further reassurance in that there was a recovery in variability and the foetal heart had settled back to 160. From about 15.20 to 15.40 there was a further series of late decelerations. However on examination at or about 16.00 the foetus responded to scalp stimulation; that variability in said section though for periods reduced improved before she saw the pursuer at or about 16.00 and the base line for the 10 minutes prior to her examination settled back to 160 (pages 5, 7 and 9 of volume 2 of her transcript).

THE DECISION AT 16.00

[32] Given the foregoing it was her view that at 16.00 there was no necessity to perform an FBS or caesarean section. As regards the period beyond 16.00 I have not detailed her evidence as the last point at which it was suggested by the pursuer there was a failure in care was at 16.00.

THE PURSUER'S EXPERTS

Dr Stewart

[33] Dr Stewart's curriculum vitae is 6/55 of process and is elaborated upon between pages 1 and 11 of his transcript.

MANAGEMENT DURING LABOUR AND CTG ANALYSIS

[34] He accepted the various definitions relative to the features of the CTG trace as set out earlier in this Opinion. In addition he said at page 53 of his transcript of evidence regarding normal baseline variability:

"It is a normal reflex response of the baby to its environment".

He accepted that stress in a baby is often associated with loss of variability but not always (page 22, second volume of his transcript).

[35] In addition, the doctor accepted as regards accelerations that these were:

"A normal physiological response of a baby".

In cross examination he accepted that a doctor should be reassured by the presence of accelerations on a trace (page 57 second volume of the transcript) and that accelerations and normal baseline variability were hallmarks of foetal health (page 82, second volume of his transcript).

[36] Finally, in cross examination he accepted that where there was normal baseline variability and accelerations acidosis was unlikely (pages 74 and 82 of the second volume of his transcript). Responses to palpation showed that a foetus was recovering (page 84 of the second volume of his transcript).

[37] Throughout his analysis of the CTG trace the doctor attached critical importance in deciding as to the wellbeing of the foetus to late decelerations and to variable decelerations with a late component. He explained his reasons for this:

"Well the late deceleration, eh, is described as one that has its onset after the peak of the contraction, at least 20 seconds after the onset of the contraction, it has its nadir after peak and usually about half a minute after, and it is usually slow to recover to the baseline, so it may take a minute, a minute and a half to get back to its baseline. This is thought to be an abnormality in that its ....the physiology to explain it is that there is actually a deficiency of oxygen to the heart muscle itself, and normally in those circumstances the heart will speed up its contractions to get more blood to the places it wants to, its brain and its own heart muscles. If the ....yes, its quite technical and complicated, if you. But where you have a delayed deceleration it indicates that the heart is not able to respond through lack of oxygen to itself and it copes with this by actually working less hard. It's rather like us running a race, finding we are getting out of breath, we therefore slow down. It's common sense. And in the context then, of a CTG trace, if you have late deceleration, what's the consequence of that? That we have to assume that this is something pathological, that there is something that is potentially harming the baby's heart and harming the baby, potentially".

He regarded late decelerations or variable decelerations with a late component as the most important indicators of foetal hypoxia.

[38] His summary of the trace between 06.40 and 08.00 was as follows: he saw persistent atypical variable decelerations with a late component, together with a rise in foetal heart rate; not reassuring and parts which were frankly pathological.

THE DECISION AT 08.10

[39] At 08.10 it was his position that it was a failure in care not to do a foetal blood sample and in the absence of doing a foetal blood sample it was his position that it was a failure in care not to proceed to delivery (page 92 of his transcript).

[40] He accepted in cross examination that before late decelerations were of significance they needed to be repetitive (page 63, second volume of his transcript). He also accepted that slow return to baseline to which he attached significance was not defined within the guidelines (page 64 Volume 2 of his transcript).

[41] From 08.15 to about 10.50 he categorised the trace as follows: in the main the trace was normal although the trace showed certain late and variable decelerations. In cross examination he accepted that a doctor was entitled to be reassured by this section of the trace (page 87 of Volume 2 of the transcript).

[42] From 10.50 to 11.35 he described the trace as largely normal, although he noted a rise in the foetal heart rate at one point. His position was eventually that there was no lack of care as at 11.35 in not doing a foetal blood sample or caesarean section. He held this view given that there were certain reassuring signs within the trace (page 124 of his transcript). In cross examination he accepted that a doctor was entitled to be reassured by this part of the trace (Volume 2, page 90 of his transcript).

[43] In the next period of the trace up to 12.30 he agreed broadly with a note in the medical records that the heart rate was 150 to 155; with good variability and a few shallow decelerations although he emphasised that these were late in timing (page 130 of his transcript). The doctor then factored in the secondary arrest (i.e. the failure of the cervix to further dilate from 6-7 cms between about 09.30 and 12.30) which in his opinion was a warning sign that there could be a mechanical difficulty in delivery.

THE DECISION AT 12.30

[44] In these circumstances it was his position that there was a failure at about 12.30 in care not to proceed to a caesarean section although he qualified his opinion on this as follows:

"And is there any question of that, (that the baby should have been delivered) in your opinion? I think only if the mother had particularly wished to proceed to aim for a vaginal delivery".

As regards the period of the CTG trace from 13.00 to 13.45 his position in summary was that it showed a tachycardia, episodes of reduced variability and clearly delayed decelerations (page 150 of his transcript).

THE DECISION AT 13.45

[45] It was his position that it would have been a failure in care not to do a foetal blood sample and in the absence of that not to do a caesarean section at that point.

[46] From 13.50 to 14.30 his position in summary was that the trace continued to show a tachycardia with a baseline of 165, variability probably acceptable at 5 beats per minute and no obvious decelerations (page 154 of his transcript).

[47] Between about 14.50 and 15.00 he saw a high base rate and delayed decelerations and described the trace as pathological about 15.00 (page 157 of his transcript). Equally from 15.00 to 15.30 he saw late decelerations and a persistent tachycardia and he described that section as abnormal (page 164 of his transcript). Thereafter the trace remained abnormal due to a continuation of said factors. He accepted that at about 4pm the variability was acceptable.

THE DECISION AT 16.00

[48] In his view as at 16.00 there was a failure in care in not delivering by caesarean section.

[49] After 16.00 it was his position that the CTG trace remained as before with a further additional problem of a high maternal temperature. He agreed with Dr McLellan's decision to deliver at 17.00. It was however his position that it was a failure of care not to offer a caesarean section at 17.00 (page 12, second volume of his transcript).

ANTENATAL PERIOD

[50] His position on informed consent in summary was this: it was a failure in care by Dr McLellan.

1. Towards the end of the antenatal stage not to offer a caesarean section to the pursuer (page 34 of vole 2 of the transcript).

2. That the risk of shoulder dystocia in the pursuer was 10%: that the risk being over 1% it was a failure in care therefore not to inform the pursuer of the risk of shoulder dystocia during the ante-natal period.

In cross examination the doctor's position relative to informed consent was this:

"And if Dr McLellan had said your baby appears to be on the 95th centile or whatever, so its borderline large, it's the top end of the normal size, its largish. Yes.

We know that you are diabetic. We know you are whatever height you are, we've estimated the size as best we can all the way through, there are risks but I don't think the baby is so big that vaginal delivery is beyond you and I think we should try for vaginal delivery and if anything comes up we will go to caesarean section. Now if that was the general tenor of the discussion, could you criticise that? I know it's very vague and it's very difficult because it's another hypothesis, Mr Stewart and I appreciate that but yes I would....are you able to answer that question? I'm able to go along with that, with the caveat that you would then say to the patient are you happy with that decision?"

(pages 113 and 114 in the second volume of his transcript).

[51] In cross examination the doctor accepted at page 136 of the second volume of his transcript that there was no evidence of any damaging hypoxia to the foetus prior to 17.30.

PROFESSOR NEILSON

[52] Professor Neilson's curriculum vitae is contained in 6/66 of process and is elaborated upon between pages 6 and 15 of his transcript.

ANTENATAL PERIOD

[53] Professor Neilson dealt first in his evidence with the issue of informed consent. His position was that if the pursuer had expressed concerns about the size of the foetus to Dr McLellan then it was her duty to discuss the potential problems that could arise because of the very large size of the baby. That discussion would need to include the possibility of cephalopelvic disproportion and, shoulder dystocia, and to discuss the different options, which would be probably a caesarean section as a planned procedure, or seeing how progress developed during labour. The conversation would need to include recognition of a high chance of a caesarean section proving necessary during labour, and the discussion would also need to include the pros and cons of caesarean section versus vaginal delivery (page 28 of his transcript). His position was broadly the same if the pursuer had asked about risks (page 29 of his transcript).

[54] In relation to the issue of the risks associated with shoulder dystocia he accepted in cross examination that in 70-90% of cases of shoulder dystocia the problem is very easily dealt with. He was not surprised that the figures for Erbs Palsy arising from shoulder dystocia were 1 in 450 or that the figure for cerebral palsy would be 1 in 2 or 3 thousand (page 162 of his transcript). Nevertheless he was of the view that the pursuer had to be informed of the risks of mechanical difficulties including shoulder dystocia. He did not believe there was a need to mention cerebral palsy (page 165 of his transcript). He accepted that the guidelines were that a caesarean section should only be offered if the predicted weight was over 4.5kgs.

[55] As to his position regarding the offering of a caesarean section at or about 17.00 and whether the failure to offer it amounted to a failure in care he gave a very long answer at pages 129 to 130 of his transcript. In summary his position was as I understood it that there was no failure in care arising at that point due to a caesarean section not being offered.

MANAGEMENT OF LABOUR - AND CTG ANALYSIS

[56] The Professor began his evidence in relation to this branch of the pursuer's case by looking at the issue of the secondary arrest. It was his position that this fitted into the classical pattern of a secondary arrest due to cephalopelvic disproportion. His opinion was the same as Dr Stewart that given the secondary arrest and the pattern on the CTG trace that it was a failure in care not to carry out a caesarean section at 12.30.

[57] As regards the CTG trace the doctor accepted the various definitions as contained in the guidelines as set forth earlier in this Opinion. He particularly stressed that atypical variable decelerations had the same importance as late decelerations as they were indicative of foetal hypoxia. He accepted that what was important was the identification of a consistent pattern of late decelerations and that it was only then that there was an indication of hypoxia (page 58 of his transcript). He accepted that normal variability was an important feature in pointing to foetal health but patterns of late decelerations even with normal variability were indicative of hypoxia (page 75 of his transcript).

[58] He accepted that reassurance could be found in a trace when it went back to normal (page 190 of his transcript). He accepted that 40 minutes of reduced variability could be explained by the foetus being asleep and in the absence of other adverse factors 90 minutes of lack of variability should not be a concern (page 191 of his transcript). He accepted at the same point in his evidence that accelerations were a good sign when seen on a trace.

[59] Turning to the trace itself his position was that from 05.39 to 05.55 the trace was entirely normal. Thereafter following the epidural changes were seen in the CTG trace due to its effect. However, from 07.22 there was a pattern of recurrent decelerations which were late in timing. As regards variability up to about 08.00 he described some of it as quite normal, some of it reduced.

THE DECISION AT 08.10

[60] At 08.10 he described the trace as frankly abnormal and that at that point there was a failure in care not to do a foetal blood sample or a caesarean section.

[61] Thereafter up to 08.33 he saw certain further decelerations, however from 08.33 to 09.00 he described the trace as normal (page 79 of his transcript). From 09.00 to 09.40 the trace was better than it had been previously. He then described the trace to 10.05 as OK (page 81 of his transcript). Then about 10.20 he saw an established pattern of late decelerations. However by 10.40 the trace looked better again. Up to 11.30 the trace was less worrying and he had no real problem with the trace (pages 83 and 85 of his transcript). However, from 11.30 to 12.30 he saw in the trace a recurrence of a pattern of late repetitive decelerations these beginning at or about 11.46. The trace became pathological.

THE DECISION AT 12.30

[62] There was a failure in care at around 12.30 in not delivering the child. At pages 92 to 93 of his transcript of evidence he accepted that variability was maintained between about 11.30 and 12.30.

[63] From 12.30 to 13.00 he saw no repetitive decelerations. However, from 12.55 to 13.45 the trace again became pathological in that there was a fast base rate; fluctuating variability and late decelerations.

THE DECISION AT 13.45

[64] There was a failure in his view in care as at 13.45 in that the foetus was not delivered by caesarean section.

From 13.45 to 14.10 he described the CTG pattern as showing: a tachycardia, but no pattern of recurring decelerations and variability as patchy (page 105 of his transcript).

[65] From 14.40 to 15.50 the CTG pattern he said showed a rise in baseline rate; recurrent decelerations over the period and reduced variability (see page 116 of his transcript).

THE DECISION AT 16.00
[66] The trace was pathological in that section and that there should accordingly have been a delivery of the foetus as at 15.50.

[67] He covered the period from 16.00 and like the other experts accepted that there was a worsening of the picture and agreed with the decision of Dr McLellan that delivery should be made at or about 17.00.

[68] As with Dr Stewart he agreed that the condition of Sam following birth was indicative that there probably had not been any damaging effect to his brain prior to 17.30. Finally in re-examination the doctor under reference to 7/13 of process accepted that in one-third of births where a predicted weight was greater than 4kgs and the mother was diabetic, shoulder dystocia occurred.

THE DEFENDERS' EXPERTS

Dr Philip Owen

[69] Dr Owen's curriculum vitae is contained in 7/22 of process and expanded upon between pages 1 and 8 of his transcript of evidence.

ANTENATAL PERIOD
[70] As background to his position on this aspect of the case he gave the view that most obstetricians would not offer a planned caesarean section where the predicted birth weight was under 4.5kgs.

[71] He accepted that so far as warning of risks in circumstances such as the pursuer there was a wide range of opinion among obstetricians on this question. He was of the view that it was very unlikely that shoulder dystocia would be mentioned in the course of a discussion with a patient such as the pursuer. He was of the view that what had been said by Dr McLellan was an adequate response to the pursuer raising concerns about the size of her baby and her ability to give birth vaginally (pages 26 to 32 of his transcript).

[72] At Volume 2, page 43 of his transcript in cross examination he appeared to accept that it would be usual practice to discuss mechanical problems in delivery but not shoulder dystocia. However at page 138 in re-examination he returned to the position that there was no need to discuss particular risks of mechanical obstruction.

[73] As regards the position at 17.00 he did not see any failure in care due to the pursuer not having been offered a caesarean section at that point. He thought the approach of Dr McLellan at that stage in the whole circumstances was appropriate (page 34 of his transcript).

MANAGEMENT OF LABOUR AND CTG ANALYSIS

[74] The doctor began his evidence under this head by looking at the question of the secondary arrest. He said that the question of what had caused this could reasonably have been at the time of the arrest a matter of dispute. CPD or inefficient uterine activity were possibilities. In those circumstances the normal response of an obstetrician would have been to give syntocinon as was done in this case (page 45 of his transcript). It was his position that given the way the labour progressed and given the position of the foetus at 17.00 that the secondary arrest had been caused by the occipito posterior position of the foetus and that any CPD was very minor (pages 55 and 56 of his transcript).

[75] Turning to his analysis of the CTG trace he gave a summary of his overall position regarding the trace at pages 65 and 66 of his transcript and that was in the following terms:

"From 4 to 7.10 it was normal. 7.11 to 8.50 variable decelerations from baseline, heart rate of 140 with presence of accelerations in normal beat to beat variability. 8.51 to 9.21 baseline 150 to 155 beats per minutes, normal beat to beat variability. 9.30 to 10.29, baseline 160 beats per minutes with accelerations and normal beat to beat variability. 10.30 to 11.19, baseline 150 beats per minute with normal beat to beat variability and normal CTG. From 12.23 to 12.29 deceleration associated with change in maternal position. 12.30 to 12.59 baseline 160 with normal beat to beat variability and accelerations. 13.00 to 13.29 baseline heart rate 160 with normal beat to beat variability, brief variable decelerations. 13.30 to 14.09 baseline heart rate 155 with accelerations and normal beat to beat variability and normal CTG. 14.10 to 14.49 baseline 160, possibly 165, with normal beat to beat variability. 14.50 to 15.49 baseline 160 to 165 with shallow decelerations, late, beat to beat variability normal, suspicious CTG. And 15.50 time of full dilation until delivery baseline 170, progressively increasing to 180 beats per minute with occasional brief decelerations, beat to beat variability normal".

Thereafter in his evidence he gave his views in some considerable detail regarding the CTG trace. So far as the CTG trace was concerned up to 08.00 he saw occasional variable decelerations due he believed to cord compression; normal baseline, foetal heart rate and variability was fine. He did not see late decelerations. He defined a late deceleration as follows:

"the typical features of late decelerations are that they are repetitive, they occur after pretty much every contraction within a set epoch of time, that they have a very similar appearance to one another and that they become progressively longer, i.e. the deceleration lasts longer, and becomes progressively deeper. Because if they are reflecting acidosis then the pattern is progressive and the pattern of the foetal heart rate becomes more abnormal rather than normal. The picture of variable decelerations is that the shape and the relationship of the deceleration to the contraction as the name suggests, it varies. And the reason it varies is because it is deemed to be a short lived compression of the umbilical cord in the womb. Depending on which part of the cord is compressed, and for how long, that will generate decelerations of differing sizes. I disagree that the changes observed here are pathological" (pages 80 and 81 of his transcript).

He did not see a pattern of late decelerations in this section of the trace.

THE DECISION AT 08.10

[76] No foetal blood sample or caesarean section was required at this point. He stressed that: to observe evidence of hypoxic stress during a labour is normal. The question is when can the foetus no longer cope or adapt to these recurrent episodes of hypoxic stress and when does the foetus as a consequence become significantly acidotic in the womb. It is not towards the simple identification of intermittent episodes of hypoxic stress that monitoring in labour is aimed at, it is towards the identification of a foetus who can no longer cope with the hypoxic stress and who is about to become or who has become acidotic (page 82 of his transcript).

[77] He went on again at page 83 of his transcript to say this about the significance of late decelerations:

"The clinical features of late decelerations which reflect acidosis for the foetus is that they are repetitive, that they are of very similar size but they have a consistent, predictable relationship with contractions, and since intra-partum acidosis is a progressive condition, unless the contractions are stopped or the infant is delivered, then they become broader, they become deeper and the variability is lost. We do not see any of those features here".

The doctor stressed the importance of accelerations in that they were the most reassuring signs relative to the health of the foetus and he saw such between 07.13 and 07.20 (page 88 of his transcript). Said pattern which he saw on this section of the CTG trace he saw day in day out and gave him no concern (page 96 of his transcript).

[78] Beyond 08.15 any late decelerations were isolated and of no significance (page 94 of his transcript). From 08.40 to 09.00 the trace was normal (page 96 of his transcript). From 09.00 to 09.20 the trace was unremarkable. At 09.40 when the foetus was examined there was an acceleration. This he described as an extremely reassuring sign. He again emphasised that accelerations were critically important in reassuring the obstetrician.

[79] From 10.05 to 10.40 he saw briefly shallow decelerations, however, no progression in these therefore not indicative of any appreciable hypoxic. From 10.40 to 11.30 no evidence of progressive hypoxia or acidosis on the trace. At page 105 to 107 of his transcript he outlined his complete disagreement with Professor Neilson that delivery was required at 08.15 due to hypoxia given the trace post-08.15 through to 11.30. He said that the position of Professor Neilson was wholly illogical as he gave no explanation of how the foetus had recovered between 08.15 and 11.30 where he said that by 08.15 the baby should have been delivered.

[80] From 11.15 to 12.40 he saw an acceleration at 11.16 (page 107 of his transcript) indicating foetal good health. From about 11.45 to 12.20 he regarded the baseline heart rate as normal, variability was normal and any decelerations were not persistent, that is coming after each contraction and were in any event likely to be variable decelerations. There was no indication of hypoxia involving acidosis (page 110 of his transcript).

THE DECISION AT 12.30
[81] No requirement in his view for a caesarean section at 12.30. He accepted that a significant number of obstetricians might have performed a caesarean section at that time however a significant body of obstetricians would not (page 115 of his transcript).

[82] It was his opinion that normal variability was a reliable indicator of a normal foetus in that it was a reflection of the health of the autonomic system. Short periods of reduced variability were of no significance (page 119 of his transcript).

[83] In the period from 12.30 to 13.45 he accepted that between 13.00 and 13.22 there were shallow late decelerations but of no significance as did not become broader and deeper and the baseline heart rate was normal together with normal variability. From 13.22 onwards to about 13.50 the trace was normal.

THE DECISION AT 13.45

[84] It was his position that neither an FBS or caesarean section was necessary.

[85] From 14.00 the heart rate was between 160 and 165, variability was normal and there were no decelerations. He reminded the Court at page 127 that short term reduction in variability was normal and only beyond 40 minutes became significant because short term reduction in variability was a common phenomenon in labour for e.g. because the foetus is asleep. From 14.50 to 15.00 in most parts of that section of the trace the variability was normal; there were some shallow decelerations however not becoming prolonged and were of questionable relevance. Between 14.40 and 14.45 he saw accelerations which were reassuring (page 130 of his transcript).

[86] From 15.00 to 16.00 he saw about 12 minutes of late decelerations between about 15.40 and 15.50. Prior to that he saw shallow variable decelerations against a background of normal variability and a moderately elevated baseline heart rate (page 131 of his transcript).

THE DECISION AT 16.00
[87] It would not have been standard practice to perform a foetal blood sample or a caesarean section at 15.50 against that background (page 131 of his transcript). He categorised said section of the trace as suspicious.

[88] The witness expressed the view that there was a difference between late decelerations and variable decelerations with a late component. At its simplest he suggested that the difference was shown by their different names. If they were the same there was no need to name them differently. It was his position that for the reasons he had earlier advanced that it was persistent late decelerations and their progressive nature which indicated and were reflective of hypoxia and acidosis.

[89] Given that Sam survived 12 minutes of total hypoxia his view was that it could not seriously be put forward that Sam was acidotic prior thereto and that therefore at none of the stages at which it was suggested by the pursuer's experts that a foetal blood sample should have been carried out would there have been an acidotic value shown (page 157 of his transcript).

[90] His position was that at no point was the trace pathological and indicative of sustained and clinically relevant acidosis.

[91] In cross examination the witness expressed the view that looking to the whole of the CTG trace there had not been at any point late decelerations which supported significant acidosis.

[92] He again returned to the point that for late decelerations to be indicative of significant acidosis they must become broader, more prolonged and deeper with the progress of the labour. Furthermore, if they were a true reflection of hypoxia and acidosis then the variability would become lost and other abnormalities of the CTG trace would also supervene. He saw no such signs within this trace.

[93] In cross examination his position regarding the interpretation of the CTG trace did not vary from that which he had given in examination in chief.

Dr Mason
[94] Dr Mason's curriculum vitae is contained in 7/23 of process and elaborated upon between pages 1 and 12 of his transcript.

ANTENATAL PERIOD

[95] The witness began his evidence by indicating the risks of a caesarean section and he covered these in some detail between pages 26 and 28 of his transcript. He felt that the approach taken by Dr McLellan, of not having a discussion of risk relative to shoulder dystocia with the pursuer was a reasonable way to proceed as he was of the view that the risks of a serious outcome arising from shoulder dystocia were so small and that if doctors were to warn of the risk of shoulder dystocia then everybody would wish a caesarean section which would neither be in the interests of the mother or the foetus (pages 29 and 30 of his transcript). He said that shoulder dystocia would not be discussed by him unless the patient had had shoulder dystocia difficulties in a previous birth. However, he would often discuss the possibility of cephalopelvic disproportion but in cross examination he accepted that that was not a uniform position. He said that the vast majority of shoulder dystocia cases are relatively mild and are fairly easy to deal with being normally dealt with by the midwife and not by the doctor (page 36 of his transcript). He did not believe it was a failure in care not to offer a caesarean section given the predicted birth weight of Sam. As I understood it, it would only have been if the birth weight had been predicted as being 4.5kgs that he would have been prepared to accept that there was a failure of care in not offering a caesarean section.

[96] He accepted that if a patient asked about risks then the doctor was duty bound to respond.

[97] The medical profession he said recognised that if there was a risk of 1% of an adverse outcome or above then you had to warn patients (pages 117, 118, 153 and 154 of the second volume of his transcript).

MANAGEMENT OF LABOUR AND CTG ANALYSIS

[98] Generally on looking at the trace the witness emphasised the importance of accelerations. He said that one rarely saw an acceleration when a baby was distressed (page 106 of his transcript). He also stressed the importance of maintenance of variability. He said that both of these features on a trace were signs of good foetal health. He said this: decreased variability was often associated with hypoxia and good variability normally signified a healthy baby. He stressed the importance of improvements in the trace where there had been a suspicious period. He said that this showed the suspicious period to be broadly irrelevant as the baby was again looking fine and happy (page 64 of his transcript). This answer was to be seen against the background of hypoxia being a progressive condition. His position was that in looking for late decelerations which were clinically significant, these should be happening with every contraction and would be uniform in shape, that is of similar length and amplitude (page 128 of the second volume of his transcript). He said that late decelerations were wholly different from variable decelerations which were caused by cord compression. In addition, he said that if late decelerations were truly showing hypoxia they should become progressively worse over a period of about 30 to 100 minutes. Again, this was because hypoxia was progressive.

[99] The witness began his analysis of the CTG by saying that in the period after 06.20 when the epidural was given it was difficult to interpret the CTG due to the effect of the epidural (page 61 of his transcript). Between 06.40 and 07.00 he saw reduced variability but thought that this was explained by the baby sleeping or the continued effect of the epidural. He would not have been concerned about that loss of variability until after 40 minutes (page 63 of his transcript). The variability he said improved at 07.00 and that reassurance could be found in this. At about 07.10 there was an acceleration giving further reassurance. As at 07.30 what he saw in the period before that were not really decelerations as there had been good variability. He would have rated the trace in this period as suspicious due to some decelerations and the difficulty in establishing the baseline (page 71 of the transcript). In these circumstances he would have checked the trace again at about 08.00 or 08.20. In the period up to 08.20 the heart rate he noted was slightly fast and there was a slight reduction in variability but nothing was of any real concern (page 72 of his transcript).

THE DECISION AT 08.10
[100] In his view there was no lack of care in not carrying out a foetal blood sample or caesarean section at or about 08.10.

[101] In the period before 09.40 he saw greater variability and evidence of acceleration: he believed this was a completely normal trace at that time (page 75 of his transcript). In particular at or about that time there was a further reassuring sign where the baby responded to scalp stimulation which he described as being another sign of foetal wellbeing. The trace he said went from suspicious to normal and he was very reassured by this (page 76 of his transcript).

[102] From about 09.40 to about 10.40 he regarded the trace as normal with accelerations at various points. At 10.40 he described the CTG thus: foetal heart rate 150 with good variability and accelerations. From 11.00 to 11.25 he described the CTG trace as completely normal with accelerations and no real evidence of decelerations.

[103] From 11.40 to 12.10 what he saw on the trace was a heart rate which was slightly faster than average with reduced variability but evidence of accelerations and he thus would have interpreted this as showing a healthy baby.

THE DECISION AT 12.30

[104] He did not believe that it would have been a failure in care not to perform a foetal blood sample or caesarean section at that point (page 90 of the transcript).

[105] From 12.00 to 12.25 he described what he saw as a relatively normal trace (page 92 of his transcript). After the resiting of the transducer there was a further improvement in variability and evidence of accelerations (page 93). By 13.00 he regarded the trace as suspicious due to a rise in foetal heart rate (page 93). However at that point he did not believe that any intervention was required. During the period 12.00 to 13.00 there was evidence of decelerations but not of persistent decelerations, i.e occurring with every contraction. He then pointed to a further acceleration at 13.27, again a sign of foetal wellbeing and reassurance. Again this tended to point to the suspicious period as not being likely to have had any clinical significance.

[106] From 13.25 to 14.00 the trace was normal and he pointed to four accelerations. He noted that when the pursuer was turned there was an improvement in the trace. This showed that there was an element of cord compression.

THE DECISION AT 13.45
[107] There was no need to perform a foetal blood sample or caesarean section at 13.45. The CTG trace was at that point perfectly acceptable and not pathological (page 102 of his transcript).

[108] Between 14.00 and 15.00 he believed there was about 35 minutes of potentially suspicious trace. However, again he was of the view that there was an improvement at about 14.40 due to accelerations being present.

[109] From 15.00 to 16.00 there was a rise in the foetal heart rate to 170; reasonable variability; an odd small acceleration. After 15.30 he saw a number of late decelerations causing the trace in his mind to become suspicious, and which would have made him wish to carry out a vaginal examination. There was then reassurance to be obtained at or about 16.00 when the baby was examined and the heart rate accelerated.

THE DECISION AT 16.00
[110] He was of the view that if a foetal blood sample had been carried out at 16.00 it would have been entirely normal. He accordingly was of the view that there was no failure in care in the course adopted by Dr McLellan at that time.

[111] Turning to the secondary arrest it was his position that this was caused by poor uterine activity in combination with the foetus' position within the womb. It was not caused by cephalopelvic disproportion (page 109 of his transcript).

[112] He believed that at 17.00 if a foetal blood sample had been carried out it would have been normal.

[113] It was his position that if a caesarean section had been carried out at 17.30 Sam would have been born in good condition as there was no evidence of significant distress on the CTG trace. If he had been significantly hypoxic he would have died before delivery. He described, the pursuer's expert's position that the trace was so grossly abnormal that Sam required delivery at various times during the course of the day as a contradiction in terms given Sam's survival and his present condition.

[114] He summed up his position relative to the trace in this way: that there were areas of suspicious trace; but thereafter there were returns to normal so he was reassured. There were no persistent late decelerations, i.e. with every contraction in the presence of a non-accelerated trace. Overall the decelerations seen on the trace were variable and not truly therefore late decelerations (page 143 of his transcript).

[115] In cross examination the witness did not in any way depart from the position he had taken up in examination in chief regarding the interpretation of the CTG trace.

SUBMISSIONS
Submissions on behalf of the pursuer
[116] Mr MacAulay for the pursuer began by setting out the general legal framework in terms of which he submitted I had to approach my consideration of the pursuer's case.

[117] He began by setting out the well established test for clinical negligence which is set forth in Hunter v Hanley 1955 SC 200 at 206 and is in the following terms:

"It follows from what I have said that in regard to allegations of deviation from ordinary professional practice - and this is the matter with which the present note is concerned - such a deviation is not necessarily evidence of negligence. Indeed it would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly and this is of crucial importance it must be established that the course adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. This is the test, then it matters nothing how far or how little he deviates from the ordinary practice. But the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated".

Mr MacAulay accepted that normally as held by Lord Penrose in Gordon v Wilson 1992 SLT 849 at 850:

"...the court could not find professional negligence established where there were two bodies of reliable and credible evidence supporting differing opinions as to whether the course adopted was or was not in conformity with the standard of the ordinary skilled man exercising his profession".

He, however, emphasised that although he accepted that Hunter v Hanley set out the test for clinical negligence it did not follow that where the defenders led expert evidence to the effect that a doctor was acting in accordance with normal practice that the defenders must of necessity be successful. Rather, before the court should accept that body of evidence it must be satisfied that the practice was reasonable, responsible and logical in the whole circumstances. Said submission was made under reference to the well known passage in Bolitho v City and Hackney Health Authority 1998 AC 232 per Lord Browne-Wilkinson at 241E to 242B which is in the following terms:

"Mr Brennan renewed that submission both before the Court of Appeal (who unanimously rejected it) and before your Lordships. He submitted that the judge had wrongly treated the Bolam test as requiring him to accept the views of one truthful body of expert professional advice even though he was unpersuaded of its logical force. He submitted that the judge was wrong in law in adopting that approach and that ultimately it was for the court, not for medical opinion, to decide what was the standard of care required of a professional in the circumstances of each particular case.

My Lords, I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J stated that the defendant had to have acted in accordance with the practice accepted as proper by a 'responsible body of medical men'. Later, at page 588, he referred to a 'standard of practice recognised as proper by competent reasonable body of opinion'. Then in the passage which I have cited from Maynard's case at 639, Lord Scarman refers to a 'respectable' body of professional opinion. The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks and benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter".

Counsel immediately accepted first that given the state of evidence in the present case that the pursuer must establish that the opinions of the defenders' experts fell into the category identified by Lord Browne Wilkinson in the said passage in the Bolitho case and secondly that it was clear from what was said in Bolitho that it was a high hurdle which the pursuer must overcome in showing that the opposing opinion did not have a logical basis. It was however his submission that the defenders' expert's opinions and in particular the opinion of Dr Mason did not have such a logical basis. In particular it was his position that the defender's expert's reliance on accelerations and good variability as being reasons for not intervening did not stand up to logical analysis. Lastly counsel referred me to Honisz v Lothian Health Board 2006 CSOH 24 at paragraphs 39 and 40 where Lord Hodge he submitted correctly summarised the law and in particular accepted that Bolitho was the proper approach in Scotland.

[118] Against that legal background Mr MacAulay turned to the first branch of the pursuer's case that there had been failures in care during the course of the pursuer's labour in not performing a foetal blood sample and where no such foetal blood sample was performed in not proceeding to a caesarean section. These failures Mr MacAulay submitted had occurred at 08.10; 12.30; 13.45 and 16.00.

THE DECISION AT 16.00

[119] Mr MacAulay began his submission in terms of this branch of the pursuer's case by looking to the decision of Dr McLellan at 16.00 and by examining the evidence regarding the trace from about 14.50 to that time. He submitted that this was the last opportunity as at 16.00 to set in motion an expedited delivery of Sam. It was his submission that there was a failure in care at that time in not expediting delivery. It was his position in summary that the CTG trace at that time mandated an expedited delivery. There were two broad limbs to that argument and these were as follows:

(a) on Dr McLellan's own evidence, and her failure to correctly interpret the trace in the period shortly before 15.40, there was a failure in care which resulted in the negligent prolongation of the labour and

(b) in any event on the basis of Professor Neilson and Dr Stewart's evidence delivery should have been expedited as at that time. It was his position that their evidence should be accepted and that the contrary evidence given on behalf of the defenders by their experts should be rejected.

[120] In development of the first limb of his argument counsel turned to look at the evidence of Dr McLellan and placed particular reliance on the following passages in her evidence:

"At 14.51, 14.53, 14.58, 14.59 a run of five late decelerations cause? Placental insufficiency. Variability not satisfactory from 14.55.

15.00 to 15.15? Not much has changed. Baseline has gone up to 170 although wandering and variability reduced.

Pathological trace in that it has late decelerations and reduced variability? Yes.

Decelerations from 15.00 onwards? Another at 15.03, 15.05, 15.06/7, small one at 15.08, 15.10, 15.14, 15.16. Persistent late decelerations with virtually every contraction? Yes.

Evidence that baby is stressed/reduced variability? Yes".

In addition it was Mr MacAulay's position that Dr McLellan had accepted that from 15.20 to 15.40 there were late decelerations with each contraction together with a reduction in variability. Therefore he submitted on her own evidence there was a pathological trace for some 50 minutes and when asked the Doctor had admitted the trace was pathological. Mr MacAulay then made the following points arising from the said evidence: First Dr McLellan accepted that between 14.40 to 15.50 there was a pathological trace resulting from persistent decelerations, a tachycardia and reduced variability. In such circumstances he submitted the preponderance of the expert evidence was to the effect that it would be a failure in care not to intervene. Secondly there was no support for the proposition advanced by Dr McLellan that good variability would excuse non-intervention in such circumstances.

[121] Mr MacAulay then turned to examine the evidence of the various expert witnesses in relation to this section of the trace. He referred to the evidence of Dr Owen who he said accepted that 30 minutes of late decelerations would require some intervention and that that would be the situation even if variability was normal. It was his position that Dr Owen's evidence was that good variability on its own did not negate the importance of persistent late decelerations. As regards Dr Mason he pointed to the fact that he had agreed that if a trace was pathological then intervention such as FBS or delivery would be mandatory. Dr Mason also agreed that even if a trace showed good variability, if he thought it was pathological he would deliver or carry out an FBS. Turning to the evidence of Dr Stewart his position was that by 15.20 there was a tachycardia and persistent delayed decelerations that this continued to be the pattern up to 15.50. It was his position that the trace as at 16.00 was clearly pathological. As regards Professor Neilson his position was that within that section of the trace there were persistent late decelerations, tachycardia and reduced variability. It was his position that the lack of intervention at that time could not be excused and there was an urgent need to affect delivery.

[122] Mr MacAulay then summarised his position in terms of the first limb of his argument. It focused particularly on Dr McLellan's own evidence and it was clear he submitted that her failure to respond to what she accepted was a pathological trace was a failure in care. He submitted that there was no support for her position that the 10 minutes of trace up to about 15.50 disclosed variable decelerations. He submitted that all the experts in their evidence agreed that in that period there were persistent late decelerations. There was no suggestion he submitted in any of the evidence of the experts that if a trace was pathological there should not be intervention. There was no support he submitted in the evidence for her proposition that if variability was maintained in the face of a pathological trace that there should not be any intervention.

[123] Having dealt with the first branch of his argument as regards this section of trace he turned to the second part of his argument which was to the effect that in any event the views of the defenders' experts in relation to this section of the trace were not rational.

[124] As regards Dr Mason he submitted generally that in cross examination he was defensive and on a number of occasions countered a question with an answer that did not relate to the question. In addition if asked to answer a question regarding a particular section of trace he tended to preface his response by referring back to another part of the trace in order to deflect the thrust of the question. It was his submission that his observations on said section of the trace, between 14.30 and 15.50 namely (a) seeing an acceleration at the beginning of that section and (b) the foetal response to the vaginal examination at about 15.50 had not been put to Professor Neilson and Mr Stewart.

[125] He submitted that there was nothing in the literature to support the proposition that variability/accelerations could justify non-intervention when the CTG trace was otherwise pathological. It was his position that accordingly Dr Mason's views were not logical. It was his submission that Professor Neilson, Dr Stewart and Dr Owen were in agreement that a pathological trace even in the presence of variability demanded intervention.

[126] He submitted that what was striking about the evidence of Dr Mason and also Dr Owen was first the extent to which a trace was suspicious/pathological did not need to be responded to in a pregnancy that was regarded as high risk. Secondly the reliance which they placed upon variability/accelerations in the context of an otherwise abnormal trace in a high risk pregnancy where the labour had stalled and where the patient, namely the pursuer was highly concerned about the size of her baby and where the CTG trace had on any view displayed abnormal features in the course of labour. Again he submitted this showed the unreasonableness and illogicality of their views.

[127] He reminded me that late decelerations were defined as the uniform, repetitive and periodic slowing of the heart rate with onset mid to end of the contraction and nadir more than 20 seconds after the peak of the contraction and ending after the contraction. In 6/65 of process such decelerations were described as representing the foetal response to hypoxia. In 6/64 of process the advice given there is that:

"The foetus should be monitored carefully throughout labour as in any other high risk pregnancy. There is a high incidence of foetal distress... and a high incidence of foetal hypoxia at birth... so continuous foetal monitoring is mandatory. Foetal monitoring is mandatory. Foetal scalp blood sampling should be used if there is any suggestion of foetal hypoxia on the cardiograph trace."

[128] It was his position that the literature did not support the proposition that if late decelerations could be identified and they were persistent that variability or acceleration could justify inaction. Dr Mason in relation to the trace as from about 14.50 onwards did not accept it was pathological because in the preceding few minutes there were accelerations and during the vaginal examination the foetus responded. He asked the question did the proposition that a potentially pathological trace could be ignored in the presence of an acceleration or variability appear logical?

[129] In relation to that section of trace pre-15.50 the evidence of Dr Mason was: he agreed that at about 16.00 the trace was suspicious but maintained that it was not pathological yet he agreed that for about an hour there were many late decelerations and that between 14.50 and 15.50 only one acceleration. Mr MacAulay again submitted that that could clearly be seen not to be logical. In any event a proposition whereby persistent late decelerations would not justify intervention was not supported by any other expert. Nor was it logical to rely on the baby's response at vaginal examination if otherwise there was a trace with abnormal features. The whole purpose of foetal heart monitoring was to ensure that if there was any risk of damaging hypoxia, steps could be taken to intervene. Late decelerations it was accepted were a sign of hypoxia and all that the baby's response to a vaginal examination does is establish that there has been no brain damage at that time.

[130] In summary it was Mr MacAulay's position that at 16.00:

1. Dr McLellan's approach to the pathological trace i.e. that it need not be reacted to if there was evidence of variability was unsustainable.

2. It was his position that on the basis of her own evidence Dr McLellan had failed in her duty of care in not intervening at about 15.50pm.

3. It was his position that she was negligent in adopting the position that what she took to be 10 minutes of variability could justify non-intervention.

4. In any event what she described as 10 minutes of variability was identified by all of the experts as a series of late decelerations.

5. Furthermore what he described as the unchallenged evidence of Professor Neilson and Dr Stewart in relation to the section of the trace between 14.50 and 15.50 should be accepted. The defenders' experts position was illogical.

[131] For these reasons he submitted that there was a failure on the part of Dr McLellan at that time.

THE DECISION AT 08.10
[132] As regards the other three points during the labour at which it was the pursuer's position that there was a failure of care by Dr McLellan, Mr MacAulay submitted that in the period from about 07.17 there was according to Dr Stewart and Professor Neilson a series of decelerations that were late in relation to the contraction running through to about 08.15 and then up to about 08.50. Professor Neilson also described the variability as patchy during that period. They were both agreed with the midwifery note (6/59 of process) at page 84:

"Variability previously good but at times 0 to 5bpm with persistent late decelerations..."

[133] Both the experts were critical of Dr Ibrahim's interpretation of variable decelerations and said that failure to intervene was a failure in care.

[134] Dr McLellan accepted that over this period there were late decelerations. She agreed that the CTG trace was pathological but again her position was that if variability was intact you could proceed on a conservative basis, even although she said that some of the late decelerations could be due to placental insufficiency. He submitted that she did not have any support from any of the expert witnesses that a pathological trace should not require intervention. Dr Owen did not accept that there were late decelerations, he identified variable decelerations. However, he accepted that if they could be categorised as late that there should have been a foetal blood sample. In cross examination Dr Owen seemed to accept that the decelerations in the period up to 08.50 were late but variable. He disagreed with the contemporaneous note made at 08.10 that there were persistent late decelerations. As regards Dr Mason it was Mr MacAulay's submission that he again adopted a unique approach. Dr Mason said that the problem with whether there were late decelerations was difficulty in establishing the baseline. He submitted that in relation to this Dr Mason, as in relation to so many other matters was on his own having adopted a unique approach and this pointed to the illogicality of his opinion.

THE DECISION AT 12.30

[135] In the period from about 11.45 to 12.30 and onto 13.45 both Dr Stewart and Professor Neilson said that there were decelerations that were delayed. Professor Neilson described the trace as pathological. He criticised the note made at 12.30 which described the decelerations as "variable shallow decelerations" by saying that "variable decelerations are not shallow. They drop suddenly and bounce back quickly." He in addition relied upon the evidence of Dr Stewart and Professor Neilson to the effect that the labour had stalled with a secondary arrest and their position that this was a further factor why the birth of Sam should have been expedited. Both of them were critical of the fact that there had been no immediate intervention at or about 12.30 in light of these factors.

[136] He submitted that Dr McLellan's position had been that there were late decelerations from about 11.52 to 12.22 just before the vaginal examination at around 12.30. When asked about this and whether it would be a concern her answer had been yes. Some clinicians would have continued to monitor, others would have done a foetal blood sample. She went on to say that it came back to her position that so long as variability was preserved there was not a problem. She agreed that this part of the trace was abnormal because it showed decelerations.

THE DECISION AT 13.45
[137] In relation to her position that it would be appropriate to continue to monitor Dr McLellan accepted that there were persistent late decelerations up until 13.45 when she recorded that the CTG was "satisfactory at present".

[138] Dr Owen agreed that there were persistent late decelerations from 12.55 to 13.22 and a pathological trace. He agreed it would not be normal practice in such circumstances to increase the syntocinon as happened at about 13.15. Dr Stewart said that in this period to 13.45 there were a series of late decelerations and reduced variability with a baseline of 160 to 165. His position was that there were only two options either a caesarean section or a foetal blood sample. Professor Neilson also said that in this period from about 13.00 onwards there was a pattern of late decelerations and that there was fluctuating variability and a high foetal heart rate. He also described this section of trace as pathological. Dr Mason did see some suspicious signs but the evidence of accelerations he stated was a reassuring feature. He did not accept that there were late decelerations. Also, and this position was not supported by any other evidence he said, that syntocinon was not contraindicated by a suspicious trace.

[139] It was Mr MacAulay's position that the preponderance of the evidence was that there was an abnormal trace in the period prior to Dr McLellan's examination of the trace at 13.45.

[140] Subsequently in the period from 14.06 to 14.07 there was a tachycardia and reduced variability which continued to about 14.40 when according to Dr Stewart and Professor Neilson there were also variable decelerations. Dr McLellan accepted that there was a developing tachycardia during this period. Mr MacAulay submitted that what was striking was that Dr McLellan did appear to accept that in the periods up to 12.30 and 13.45 the trace was abnormal but the variability justified non-intervention. Again he submitted that that approach was not sustainable on the evidence.

[141] Dr Mason did accept that in the trace to 13.45 there were elements that caused concern such as reduced variability but that there were good accelerations. There was a conflict in the expert evidence in relation to certain parts of the trace up to 12.30 and 13.45. Dr Owen did not accept that there were persistent late decelerations from 12.55 to 13.22.

[142] In conclusion it was Mr MacAulay's position as regards these three periods that if the court accepted the evidence that variability did not excuse intervention where there is an abnormal trace then again on the basis of Dr McLellan's own evidence there had been a failure in care at each of these points. Furthermore it was submitted that it was difficult to understand why when the labour had stalled in circumstances where there was no evidence of inadequate uterine activity against a background where, according to the pursuer if she had not been delivered by 12.00 she would have a caesarean section that steps were not taken to proceed with delivery.

[143] Finally Mr MacAulay submitted that in relation to his case regarding care during labour there was no inconsistency between the position which was accepted on behalf of the pursuer on record that Sam was healthy as at 17.00 immediately before the incident of the 12 minutes of complete hypoxia and the pursuer's experts' position that he had been hypoxic for large periods of the labour. He submitted that this was explained by this: that during the day Sam's resistance had been reduced.

ANTENATAL PERIOD DUTY OF DISCLOSURE/INFORMED CONSENT

[144] Counsel's broad submission under this head was that there was a duty on Dr McLellan to inform the pursuer of the mechanical risks associated with her labour. The pursuer was deprived of the opportunity to make a proper decision as to what course of action to take due to Dr McLellan's failure to inform her of such risks. The position was compounded by the fact that the pursuer did voice concerns about the size of the baby.

[145] As in relation to the first branch of his case Mr MacAulay commenced by outlining the legal framework for this section of his submissions. He first referred to Sidaway v Board of Governors for Bethlem Royal Hospital and Others 1985 1 AC 871. In that case it was held that the question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor's care towards his patient was to be determined by an application of the Bolam test (pages 895 D to F, F to G, 900 C to D; save that (per Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Templeman) although the degree of disclosure required for a particular patient was an issue to be judged primarily on the basis of medical evidence, there might be circumstances where the proposed treatment involved a substantial risk of grave consequences in which a judge could conclude that notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion, a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical man could fail to warn of the risk save in emergency or some other sound clinical reason for non-disclosure, pages 895 F to G, 900 D to G, 903 B to F).

[146] Mr MacAulay accepted that in the main the case of Sidaway did not alter the test in relation to clinical negligence and that it remained the Hunter v Hanley/Bolam test largely driven by expert medical opinion. This had been expressly confirmed in Scotland in the case of Moyes v Lothian Health Board 1990 SLT 444 where Sidaway was considered and applied by Lord Caplan at 449 H to K:

"In my view the Sidaway case in no way alters the pre-existing view of the law that the appropriate tests to apply in medical negligence cases are to be found in Hunter v Hanley and Bolam. Indeed the majority of the court in Sidaway confirm specifically that the Bolam test applies not only to cases of treatment and diagnosis but to cases where advice is not tendered. As I see it the law in both Scotland and England has come down firmly against the view that the doctor's duty to the patient involves at all costs obtaining the informed consent of the patient to specific medical treatments. When the patient entrusts himself to the doctor he expects, and is entitled, to be kept fully informed about decisions which are to be taken and which may concern his welfare but the paramount expectation is that the doctor will do what is best to care for the patient's health. In general it will be consistent with that primary responsibility where the doctor should acquaint the patient with the risks facing him and that becomes particularly critical when the risk is severe risk for as Lord Bridge observes in Sidaway, in such a case the patient may want to be able to decide whether he should submit himself to a significant risk or even secure a second opinion. However I can read nothing in the majority view in Sidaway which suggests that the extent and quality of warning to be given by a doctor to his patient should not in the last resort be governed by medical criteria. The risks inherent in a particular operation or procedure, the manner in which the operation may affect or damage a particular patient, the medical need for the operation and the ability of the patient to absorb information about his situation without adding damage to his health, are all matters where the doctor, with his own clinical experience and the benefit of the experience of other practitioners, is best able to form a judgement as to what the patient can safely be told in the exercise of medical care."

[147] Lord Caplan's decision was followed by Lord Penrose in Gordon v Wilson and Sidaway was also followed in Goorkani v Tayside Health Board 1991 SLT 94.

[148] Mr MacAulay also referred me to the judgement of Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust 1999 PIQR 53 at 59.

[149] Having looked in some detail at the speech of Lord Bridge in the Sidaway case Lord Woolf goes on to say:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law... that if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform that patient of the significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt."

[150] Mr MacAulay took from these cases that a doctor is under a duty to tell a patient of a significant risk of one course of action against another course of action. Lastly Mr MacAulay referred me to Jones v North West Strategic Health Authority 2010 EWHC 178 (QB). He did so first in order to look at a passage in which the Judge commented on the case of Pearce. At paragraph 24 Mr Justice Nicol says:

"Pearce itself rejected the argument that the doctor was relieved of a duty to warn of the risks of allowing nature to take its course as opposed to the risks of positive intervention by a doctor. At least where there was a viable medical alternative to the natural route the patient was entitled to be told of any significant risk that attached to either course. The role of expert evidence is different in this context. It is not to identify whether or not there is a body of responsible or reasonable medical opinion in accordance with which the doctor in question acted. That sets the bar too high in determining whether the risk was a matter which should have been disclosed. On the other hand, Lord Woolf did not regard the medical evidence as irrelevant in deciding whether the risk as significant. It can obviously assist in explaining what the outcome of one course or another might be. It may or may not be able to quantify the risk of that outcome. Whether or not a risk is 'significant' is ultimately for the court to decide."

[151] Secondly he referred me to this case by way of an example as to how the test had been applied in circumstances very similar to those before me. At paragraph 50 Mr Justice Nicol says:

"50 Despite these arguments I have concluded that there was a significant risk associated with vaginal birth. This means that if, as there ought to have been, a consultation took place between Mrs Jones and Dr Railton at about 20 weeks, Dr Railton would have been obliged to refer to the alternative of a caesarean section. It seems to me that the effect of Pearce is that the issue was not what was the best method of delivery (point (v)) but whether vaginal birth entailed such a significant risk. I appreciate that the incidence of shoulder dystocia is not the same as the risk of harm to the baby. But there is undoubtedly a risk of harm. As it happens, in this case it took the form of asphyxia leading to brain damage. In more severe cases shoulder dystocia can lead to death. Death can be very sudden. A review in 1996 of 56 cases where shoulder dystocia led to death found that in 47% of the cases the interval between delivery of the head and body was less than 5 minutes. In 89% of the cases the interval was less than the 15 minutes it took for Jack's body to be delivered. The other risks involved with shoulder dystocia are the injuries which can be caused to the baby by the manipulations necessary to release the shoulders. These include brachial plexus injury - a form of nerve damage which can lead either temporarily or permanently to a deformity of the hand or arm, a condition known as Erb's palsy. It is very hard to quantify the risk of any injury, but it would have been reasonable for Dr Railton to work on the basis that it was something less than 1-2%."

As I understood it, Mr MacAulay's position was that the above set out the doctor's unilateral obligation to inform a patient of risks. This was however, a separate obligation on a doctor where the patient had asked about risks and he submitted that there was no dispute on the evidence of the experts that if the pursuer asked about the risks of giving birth to a large baby then Dr McLellan was under a duty to explain those risks, which would include the danger of mechanical obstruction generally and shoulder dystocia in particular. This submission was made under reference to the following passage in the speech of Lord Bridge of Harwich in the Sidaway case at P898 B-C.

"I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor's duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires."

Having outlined the legal background Mr MacAulay submitted that the pursuer had raised the issue of risk with Dr McLellan. In relation to this submission it was his position that there was no real difference between raising concerns about her ability to deliver vaginally a large baby and asking specifically about the risks of vaginal delivery when compared with the risks attached to delivery by caesarean section. It was in any event his position on the evidence that the risks of shoulder dystocia were significant and therefore ought to have been raised with the pursuer by Dr McLellan independently of whether the issue of risk had been specifically raised with her.

[152] Turning to the evidence it was Mr MacAulay's position that the pursuer in her evidence had been clear that she had asked about the risks attached to her giving birth vaginally and that she had asked on more than one occasion. It was his position that this evidence was supported by that of her ex-husband, by the terms of the note in 6/59 of process made at the 36 week appointment and the terms of Dr McLellan's reply to the letter of complaint no 6/60 of process. In addition further support for the pursuer's position regarding this could be gained from the evidence of her mother.

[153] As regards Dr McLellan's position in evidence on this issue he described her as being equivocal in relation to the question as to whether she had been asked about risks. In support of that submission he in particular referred to two passages in her evidence.

"Do you remember her raising concerns about being a diabetic first time mother? Yes. If she asked about risks repeatedly what is your reaction? It's specific on risk itself then recollection is flawed or my memory is flawed. At 36 weeks you note that she had expressed concerns? Yes. Can you disagree if she raised risks? Do not remember, so cannot"

Then when it was put to her that if asked about risks she should have offered a caesarean section she said:

"I would disagree because if we had discussed things in that depth then I would have documented that. I'm sure I would have remembered that conversation. Because of the tragic outcome I have thought over what was said. My reassurance was false but she did not come back to me and ask me to explain the risks."

"She was anxious about size of baby? Yes. But didn't ask you about risks associated with the size of the baby? No."

[154] Further in relation to this evidence Mr MacAulay submitted that it was of interest that in relation to the question of noting things within the record that Dr McLellan did not document her meeting with Dr Gillani, which she accepted occurred although at an earlier stage in the pregnancy Dr Gillani and the pursuer said in their evidence.

[155] Mr MacAulay also submitted that having regard to her evidence it did not seem that the doctor would ever have discussed the risks with the pursuer no matter how often this issue was raised with her and in particular he referred to the following question and answer in her evidence:

"What would you have said? I would have started by saying we don't need to discuss risks because you are safe under the 95th centile. If I had gone onto specific risks I would have covered problems of obstruction."

[156] Mr MacAulay drew to my attention that by the 36 week appointment the pursuer was on the 95th centile. It was his submission that this passage tended to support the pursuer's position.

[157] It was his position that it was instructive to look at the issue of whether Dr McLellan had told the pursuer at the 36 week antenatal appointment that she had decided to induce labour at 38 weeks. It was the position of the pursuer and she was supported in this by Kerr Montgomery that she had not been told this at the 36 week appointment. It was Mr Montgomery's position that had he been aware at 36 weeks that labour was to be induced on 1 October he would have arranged time off work and he had not done so. However Dr McLellan's position was that the pursuer had been so advised.

[158] In addition Mr MacAulay suggested that the evidence of Kerr Montgomery about Dr McLellan's attitude which he described as offhand and dismissive when asked about risks fitted in with somebody who would not have warned about risks and this chimed with the evidence of the pursuer as to the doctor's attitude.

[159] As regards the evidence of the experts on this issue it was his position in summary that the pursuer's two experts supported the pursuer's position. That Dr Owen in relation to certain of his evidence on this issue was giving evidence not based on the pursuer having expressed concerns and later in his evidence in cross examination he appeared to accept that obstetricians should discuss the mechanical problems of a big baby and that would be usual practice. As regards Dr Mason he accepted that if a patient was worried about the size of baby then it was the doctor's duty to respond to those concerns.

[160] It was his position that if I accepted the evidential position that risks were specifically raised with Dr McLellan then having regard to the speech of Lord Bridge at 898C in Sidaway then Dr McLellan came under a duty to advise the pursuer of the risks of vaginal delivery and in particular the risks of mechanical problems including shoulder dystocia. There was no dispute on the evidence that Dr McLellan had not advised the pursuer of these risks and accordingly the pursuer must be successful. It was his position even if I thought that the issue of risk had not specifically been raised then the pursuer's expressing of concerns still brought her within the ambit of the said passage in Lord Bridge's speech and accordingly Dr McLellan was equally under a duty to inform her of the said risks.

[161] His fallback position was this: that the risk of shoulder dystocia in light of the expert evidence was such that it amounted to a significant risk of which the pursuer even had she not raised concerns or specifically asked about risks required to be informed. This submission was based on Sidaway and Pearce.

[162] He then turned to the issue of causation and submitted that it was a clear inference from the evidence of the pursuer that she would have opted for an elective caesarean section if she had been advised of the risks. She was keen to examine this option even without being properly informed. That would have been even more so if she had been told that the birth weight would in fact have exceeded the threshold of four kilograms. In any event, the pursuer could now establish causation even without satisfying the "But For" test, on the basis of policy and corrective justice following the decision of the House of Lords in Chester v Afshar 2005 1 AC 134. Said submission was made under reference to the speech of Lord Hope of Craighead at paragraphs 85 to 88 pages 162 and 163.

[163] Finally he challenged the credibility of Dr Owen in that he had appointed Dr McLellan to a committee and met her from time to time at meetings.

SUBMISSIONS ON BEHALF OF THE DEFENDERS

[164] Mr Anderson took no issue with the outline of the relevant law as advanced by Mr MacAulay except in relation to the issue of causation and the application of the case of Chester v Afshan in the circumstances of the present case. He in addition referred to the Stair Memorial Encyclopaedia Volume 9 between paragraphs 162 to 176 and in particular paragraphs 162, 163, 166 and 167, where the issue of the standard of care in relation to a doctor's duty to his patient and its development since Hunter v Hanley is from a Scottish point of view discussed and the opinion of Lord Clyde in Phillips v Grampian Health Board 1991 3 Med LR 16 at pages 24 and 28.

ANTENATAL PERIOD DUTY OF DISCLOSURE/INFORMED CONSENT
[165] Mr Anderson commenced his submissions regarding this leg of the pursuer's case by accepting that if risks were specifically asked about there must be a full response to those enquiries (see Lord Bridge in Sidaway at 898B). It was his position that in absence of any specific inquiry about risk, which he submitted on an examination of the evidence was the situation in the present case then the question was as Lord Bridge said at page 900F in Sidaway "Is there the necessity for the appropriate warning?" He submitted that the answer to that question was to be found in consideration of the question of likelihood of risk. Thus where there was no substantial risk of grave consequences there was no requirement to warn of that risk (see: Lord Bridge at page 900F in Sidaway). Similarly in the Pearce case at page 59 Sidaway and in particular the dictum of Lord Bridge was discussed and again the doctor's duty was defined as being one where he had to warn of significant risk. Thus he submitted from the foregoing that the answer to the question: what is the duty to proffer unilateral information on the part of a doctor: it is that there is only a duty where there is a substantial risk of grave adverse consequences. It was his submission that shoulder dystocia could not on the evidence be characterised as giving rise to a substantial risk of a grave adverse outcome.

[166] Mr Anderson having set out the legal framework then turned to examine the evidential basis for the pursuer's position that she had asked about risks and that the duty to give a full reply by Dr McLellan was thereby engaged.

[167] Broadly Mr Anderson submitted that Dr McLellan was a clearly credible and reliable witness. He submitted that she was not evasive in her evidence on this aspect of the case. He submitted that certain support for her position could be found in the evidence of Dr Willocks who had no recollection of concerns being expressed by the pursuer at the antenatal clinics which she attended. In addition it was Dr Willocks' evidence that if any real concerns had been expressed by the pursuer then these would have been noted in the medical records. No such notes could be found therein.

[168] He also submitted that certain support for the evidence of Dr McLellan could be found first in the evidence of the midwife who said this: that she had no recollection of the pursuer being upset as the pursuer said she was at the 15 September antenatal appointment; secondly in the fact that the medical records made no reference to the pursuer asking about risks and thirdly in her letter of complaint, which was very full, the pursuer made no reference to her having raised the issue of risks.

[169] As regards the pursuer his position was that she was not credible and reliable and that certain aspects of her evidence were patently incredible.

[170] Mr Anderson then analysed in very considerable detail certain aspects of the pursuer's evidence and submitted that I should not find her credible and reliable based on this analysis.

[171] Counsel submitted as follows:

1. The pursuer claimed that she herself was estimating the birth weight at 4.25 kilograms. In chief, when asked who had told her that the anticipated birth weight was on the 95th centile she replied "At 36 week appointment this was the appointment that I really expressed concerns about size of baby now I knew he was on 95th centile - very concerned - said I was diabetic with abnormally large baby for my body, only 5 feet tall, mother gave birth to 2 children over 4 kilograms and extrapolating the graph I estimated birth weight at 4.25 kilograms." He submitted that it was frankly quite incredible that the pursuer was estimating the birth weight at 4.25 kilograms and in any event it was irreconcilable with other parts of her own evidence. Just after this the pursuer stated "She (i.e. Dr. McLellan) told me that around 4 kilograms she would offer an elective caesarean section. She said that she predicted the weight to be around 4 kilograms plus or minus 10% - it might be less and I said it might be more". He submitted that it was entirely clear that no-one, let alone the pursuer was estimating the birth weight at 4.25 kilograms.

2. The pursuer stated in evidence "As I was continually asking about size it was annoying for her to have a patient continually asking. We would look at the scan together. I couldn't understand that she couldn't see it was so large, over 4 kilograms." It was submitted that this was simply a rewriting of history. It was obviously untrue and irreconcilable with what the pursuer herself said about Dr. McLellan saying that she would offer a caesarean section if the estimated birth weight was over 4 kilograms. The pursuer repeated that "She (i.e. Dr. McLellan) said that she would offer a caesarean section if the weight was at 4 kilograms'. So it was submitted if it was so obvious that the estimated weight was greater than 4 kilograms why then did the pursuer not ask for a caesarean section (which according to her own evidence she knew would be available to her)? The pursuer never at any stage suggested that she asked for a caesarean section. When the pursuer was asked if Dr. McLellan had told her that her estimate was at 3.9 kilograms, the pursuer said that had she been told that then she would have asked for a caesarean section. This could not be right either because she was told the estimate was at about 4 kilograms and yet she did not as a matter of fact ask for a caesarean section.

3. In cross examination the pursuer was asked just precisely what the questions were that she was asking Dr. McLellan. In answer she stated "I said surely the predicted birth weight would be exactly where it turned out to be." Mr Anderson submitted that for the same reasons as he had already submitted, this was irreconcilable with the rest of the pursuer's evidence.

4. Separately the pursuer was quite unspecific in her evidence that she "repeatedly" asked about risks. She gave no evidence as to when she allegedly asked about risks and never pointed to a single occasion other than suggesting (having seen the medical records) that at the 36 week appointment (15th September) when her concern was specifically noted by Dr. McLellan that this was when she "really expressed concern." It was submitted that it was highly unlikely that any real concern about the weight let alone any enquiry about specific risks was raised prior to this time.

5. Further the pursuer stated that the first thing that Dr. McLellan said to her when she came round from the general anaesthetic was 'What you thought would happen has happened, I'm really sorry I should have done a caesarean section.' This again it was submitted was simply unbelievable and again it was utterly irreconcilable with other aspects of her evidence. The pursuer never at any stage said what she thought would happen. If the purser genuinely thought (and said) that the baby was going to get stuck then why did she not ask for a caesarean section. She knew that caesarean sections were available.

6. In cross examination she denied discussing the medical records with anyone but her ex-husband said that he and the pursuer had looked at them together.

7. The pursuer stated that she told Dr McLellan that she was concerned about the size of her baby as her mother had given birth to two babies over 4 kilograms. Dr McLellan had no recollection of this being said but in any event the pursuer's mother told us that she gave birth to two babies at five and a half lb. (5 and a half lbs equals 2.49 kilograms.)

8. Finally the pursuer effectively accused Dr. McLellan of lying in her response (6/60, page 5) and described Dr. McLellan's account as "putting her career in front of what actually happened."

Mr Anderson then submitted that the above should be looked at in light of what was in fact known by the pursuer by reference to the ultrasound scan reports themselves. These are as follows:

1. Page 170 - 28 weeks - 21st July 1999 'impression - adequate growth'

2. Page 169 - 32 weeks - 18th August - 'impression - weight between 50th and 95th centile'

3. Page 168 - 34 weeks - 1st September 1999 - 'impression - weight below 95th centile'

4. Page 166 - 36 weeks - 15th September 1999 - 'impression - weight on 95th centile'.

Simply looking at the above Mr Anderson submitted that it was difficult to see how any concern would arise looking at the ultrasound scans for 28 weeks, 32 weeks and 34 weeks since these simply show 'adequate growth', 'between 50th and 95th centile' and 'below 95th centile.' The likelihood is that at the antenatal meeting at 36 weeks (15th September) the pursuer expressed concern as was specifically recorded by Dr. McLellan, because for the first time the weight reached the 95th centile.

In her evidence the pursuer stated that 'she asked the consultant repeatedly'. She said that she saw Dr McLellan at each fortnightly meeting except at 32 weeks (18th August) and 38 weeks (29th September, the meeting with Dr. Ibrahim). She then said that at the 36 week meeting (15th September) that that was when she really expressed concern about the size of the baby.

Despite having the medical records in front of her, despite having examined them before coming to Court to give evidence and despite being led through them by her Counsel, her evidence was plainly wrong in parts. Asked if she had had discussions before the 34 appointment she stated 'Yes, at 28 weeks'. However, when the graph is looked at, it's between the 50th and 95th centile. "We did have discussions but she didn't address my concerns." This was not right. At 28 weeks the scan report states "adequate growth". That cannot conceivably have caused concern. The pursuer stated that her mother came to the 34 week meeting hoping that if Dr McLellan didn't answer her concerns perhaps she would answer when asked by a fellow doctor. If the pursuer didn't voice her concerns at 28 weeks (which she could not have done) then she couldn't have voiced any concerns to Dr McLellan at the 32 week meeting because Dr McLellan wasn't there.

A question arose as to when the mother did go. Dr. Gillani thought she went at either the 34 or 36 week meeting but took the decision to do so a couple of weeks before as she had to arrange a locum. Dr. Gillani based her concern on the weight being 8lb. 8lb equals 3.6 kilos and if the medical records are looked at it can be seen that that is exactly the weight estimated at the 36 week appointment. (At the 34 week appointment the estimated weight was 3 kilos which is 6.6lbs).

Taking the evidence as a whole, it was Mr Anderson's submission that it clearly pointed to a first time mother with an understandable anxiety about her diabetic control and, towards the end of her pregnancy, a concern about the likely size of her baby and whether or not she would be able to deliver vaginally. The pursuer's sister and mother were GPs. The pursuer knew that there were but two options, i.e. elective caesarean section or vaginal delivery with recourse to caesarean section. The consultant obstetrician made a clinical decision based upon a reasonable estimated birth weight of 3.9 kilograms and on the basis of all information available that the pursuer should be able to deliver vaginally and if problems were encountered then a caesarean section would be performed. It is no part of the pursuer's case that it was negligent of Dr McLellan to estimate the weight at 3.9 kilos. The pursuer's suggestion that she asked about specific risks was frankly incredible and wholly influenced by the outcome.

Dr. Gillani denied ever having asked Dr McLellan about any risks. She was naturally concerned about the size of the baby. However if the pursuer had been repeatedly asking about specific risks and getting no response then she would I suggest have told her mother who would have asked Dr McLellan. When asked by Mr MacAulay whether she had ever mentioned any risks or asked about risks, Dr. Gillani was quite clear that she did not do so.

For the above reasons he submitted that I should not hold the pursuer as credible and reliable on her evidence as regards whether risks were specifically raised with Dr McLellan by the pursuer. Accordingly he submitted that for these reasons Dr McLellan was under no duty to fully respond (as risks were not raised with her by the pursuer).

Turning to the second branch of the pursuer's case on informed consent, Mr Anderson submitted that there was no evidence supporting the conclusion that shoulder dystocia was a substantial risk. In support of his submission he pointed to the evidence on the incidence of shoulder dystocia given by Dr McLellan which he submitted was not challenged. This was in the following terms:

"That in a baby over 4.5 kilograms there was a 1 in 2000 chance of permanent disability."

She went on to explain that for babies over 4 kilograms there was a 1 in 450 risk of brachial plexus injury following shoulder dystocia. A similar risk for babies weighing over 4.5 kilograms. A risk was not anticipated if the weight was below 4 kilograms. The incidence of cerebral palsy or hypoxic damage was very low i.e. about 1 or 2% of those that is 1 in 1000 or so. He advised that in answer to a question from me she summarised her position as follows: that there was a 1 in 500 risk of brachial plexus injury and that the risk of cerebral palsy was 1 or 2% of that 1 in 500 risk. He submitted that it was noteworthy that when Dr McLellan was re-examined by Mr MacAulay in relation to this the above evidence was not challenged.

[172] As regards the expert evidence on this issue it was his position that Dr Stewart in his report (6/50 of process) was entirely silent on these grounds of fault. He did not mention within the body of that report any need to warn of risks. In addition he pointed to a specific section of his evidence in cross examination which was as follows:

"If the matter was discussed and Dr McLellan says your baby appears to be on the 95th centile, large, and we know you are diabetic and your height and we have estimated weight of baby as best we can and I don't think vaginal delivery is beyond you but if anything comes up we can go to a C-section. Could you criticise that? I am able to go along with that with the caveat are you happy to go along with that."

[173] Mr Anderson then pointed out that the foregoing was according to Dr McLellan what had in fact happened and that there was no evidence whatsoever that the pursuer was not happy to go along with Dr McLellan's recommendation. It was thus his submission that Dr Stewart's evidence did not support the pursuer's case in relation to this matter.

[174] In relation to Professor Neilson his position was that his evidence was out on a limb in that he said that there was a need to discuss mechanical problems including cephalopelvic disproportion and shoulder dystocia.

[175] Dr Owen's evidence was that he would not have anticipated a more elaborate discussion of risks, than that embarked upon by Dr McLellan, in the circumstances of this case. When put to him that this was a specific ground of fault that no obstetrician would have failed to inform the pursuer of the risk of shoulder dystocia his position was:

"No. There is a range of opinion among obstetricians. Some will have a discussion and warn women of every conceivable outcome. Others will have little discussion and document little and there is a range in between. It would be most unusual to warn of the risk of shoulder dystocia and even more unusual yet to warn of any long term sequelae of shoulder dystocia."

[176] Dr Mason's position was that he felt what had been said by Dr McLellan was acceptable.

[177] In summary Mr Anderson's position on the pursuer's case based on a failure by Dr McLellan to properly inform the pursuer of the risks of vaginal delivery was this:

1. Where specific risks were raised by a patient then there was a duty upon the doctor fully to respond to those inquiries (Lord Bridge in Sidaway at page 898B).

2. In the present case there was no plausible evidence that the pursuer raised any question of specific risks. The only evidence was of a general and understandable concern about the size of the baby and that did not bring the pursuer within the ambit of the duty as set forth by Lord Bridge.

3. If the question of risk was not specifically raised by the patient then it was a matter for the doctor to judge how much information to give.

4. Where there was a substantial risk of an adverse outcome, that is serious injury being greater than 1 or 2% then there was a duty on the doctor unilaterally to advise of this.

5. In this particular case the risk of catastrophic injury was infinitesimal, the risk of any brachial plexus injury from shoulder dystocia being 1 in 500 or 1 in 1000 and the risk of cerebral palsy being somewhere in the region of 1 in 2000.

6. The question of whether her doctor had been guilty of negligence in failing to advise of risks was to be judged on the Hunter v Hanley/Bolam test.

7. There was clear evidence that Dr McLellan had responded adequately to those concerns by saying that she saw no risks and that there was no contraindication to vaginal delivery but if any problems were encountered then there would be recourse to caesarean section. This was not disputed by either the pursuer or her mother.

8. Dr McLellan's approach was fully endorsed by Dr Owen and Mr Mason and it was not open for the court to prefer Professor Neilson (who in any event was out on a limb on this matter) to other competent professionals.

Turning to the issue of causation so far as causation was concerned it was Mr Anderson's broad position that the pursuer required to satisfy the "But For" test. He submitted that the Ashfar case was special to its facts and was not applicable to the instant case. It was his position that even if the very very small risks of shoulder dystocia causing any substantial problem, namely those from which Sam now suffers, had been explained to the pursuer then it was unlikely given that she was an intelligent person that she would have decided to proceed by way of caesarean section. Accordingly in his submission the pursuer had in any event not passed the test in relation to causation.

MANAGEMENT OF LABOUR AND CTG ANALYSIS

[178] As regards this further leg of the pursuer's case Mr Anderson submitted that it was important to appreciate that the interpretation of CTG traces was controversial. The pursuer could only succeed on these grounds of fault if she was able to discredit the defender's experts and I could thus entirely reject their evidence. The pursuer required to show that this was one of those rare cases where the views expressed by the defender's experts were unreasonable, irrational or illogical. It was his submission that the pursuer could not begin to do so. Quite apart from the fact that the pursuer required to demonstrate that the views genuinely held by the defender's experts were somehow irrational, there was in addition a fundamental problem for the pursuer as regards these grounds of faults. In Condescendence 8 at page 22C the pursuer averred:

"Had a decision to deliver by caesarean section been taken shortly before 17.30 on 1 October 1999 Sam would have been born healthy".

[179] In addition to that averment the pursuer further specifically averred in Condescendence 7 at pages 18 to 19 that:

"At 17.45 on 1 October Sam's head was delivered. Between 17.45 and 17.57 Dr McLellan attempted without success to deliver the rest of Sam's body."

Thereafter it was averred:

"The remainder of Sam's body was delivered at 17.57 approximately 12 minutes after the delivery of the head. During those 12 minutes the umbilical cord was completely occluded. Esto the cord was not completely occluded the baby's neck was so stretched that the blood supply to the brain was cut off in either event there was a period of about 15 minutes of total hypoxia. During that time Sam was deprived of oxygen."

[180] Mr Anderson returned later to make certain submissions arising from these averments.

[181] Mr Anderson then submitted that Mr MacAulay's submissions were misconceived having regard to the pursuer's experts' approach to the interpretation of the CTG trace. It was the position of the pursuer's experts he submitted:

"This is a late deceleration there is also reduced variability and therefore this is a pathological trace and therefore it was negligent not to intervene."

[182] The above in his submission was not a correct reproach. It was all well and good if there was a consensus on what was being seen on the CTG and if there was a consensus on the clinical significance of what there was being seen on the CTG. That of course on the evidence was not the position in the present case. It was of no help for Doctors Neilson and Stewart to see decelerations at various points and of no value for the pursuer's counsel to suggest that the pursuer's experts' position was logical. That was nothing to the point. The pursuer had to demonstrate not that the defender's experts were merely wrong but explain and show how their views could be entirely rejected as unreasonable, irrational or illogical. In that he submitted the pursuer had entirely failed.

[183] It was his submission that both the defenders' experts had considered the CTG by concentrating not merely on whether a deceleration fitted a guideline definition but rather by asking what was the clinical significance of what was to be seen on the CTG taken as a whole. It was his position that these experts were at one in not seeing what the pursuer's experts variously saw as decelerations at all and secondly where they saw decelerations both were confident that they were of no clinical significance and were not such as to warrant anything other than close observation. Both saw accelerations which were wholly reassuring. Both were of the view that variability was an important reassuring factor and were at one with Dr McLellan on this point. Both criticised the approach of viewing the CTG trace as pathological at one point and giving no cause for concern at the next period which was the position of the pursuer's experts. Both explained in some detail their reasons for their views. Both accepted that if one saw a half hour of persistent repetitive uniform late decelerations (which neither saw on this CTG) then that would demand some sort of investigation. It was not my task to prefer one body of evidence to another rather it was for the pursuer to demonstrate that the views of the defenders' experts were illogical or irrational. He submitted that the pursuer could not do so. The evidence of these two consultant obstetricians both with a wealth of practical experience was fatal to the pursuer's case both in relation to the allegations of fault concerning failure to warn of risks of attempting vaginal delivery, failure to warn of the risk of shoulder dystocia and failure to offer a caesarean section on the one hand and the allegations of fault in relation to interpretation of the CTG on the other.

[184] Looking at the position of Dr McLellan in relation to her analysis of the CTG. He said that Mr MacAulay's position that all she was interested in was variability to the exclusion of all else was not a proper picture of her evidence. It was his position that when her evidence was looked at as a whole, she had regard to decelerations where she saw them on the trace, however, she analysed these to decide on their significance: she looked at how long they lasted; their severity and their shape. She looked at whether there were accelerations or whether the baby responded to stimulation on examination. She looked at the pattern of the trace as it had developed over the day. She attached importance to variability but it was not the only factor of which she took account.

[185] He went on to submit that although it was not for the court to prefer one body of expert evidence to another, it was difficult to resist the temptation to suggest that if the court's task were to prefer one body to another then it would have little difficulty in preferring the defender's experts. Dr McLellan herself was an experienced obstetrician and her views and her understanding of what the CTG was showing about the health of the baby were entirely supported by Doctors Owen and Mason. Both were rigorously cross examined and gave considered responses. They recognised that a different approach might have been taken, that different decisions might have been taken at various times but properly considered the Hunter v Hanley and Bolam test and saw no negligence.

[186] Mr Anderson then returned to what he described as the fundamental problem in the pursuer's case which he had identified at an earlier stage, namely: that it had been the position on record of the pursuer since the record closed some years ago and despite what he described as a snowstorm of amendment and adjustment in the weeks before the proof that Sam would have been born healthy if delivered at 17.30. The pursuer did not attempt to lead any evidence of what a foetal blood sample would have been likely to have revealed at the various times where it is alleged it was negligent not to do so i.e. at 08.10, 12.30, 13.45 and 16.00. Since the pursuer had led no evidence about this we would never know but it was a frankly startling proposition that a foetal blood sample at any of these times would have shown anything other than a PH value within the normal range standing the pursuer's own position on record as regards Sam's condition immediately before delivery and the clear conviction of both Philip Owen and Gerald Mason that a foetal blood sample at any of these times would have been within the normal range. Philip Owen had said that death began to occur from about five minutes onwards (following total occlusion) and was not challenged on this at all. Whether death would come at 5 minutes, 7 minutes or 10 minutes the pursuer's position was that there was a total hypoxia for 12 minutes yet Sam had not only survived but had done so however poor his Agpar scores, with his intellect remarkably intact.

[187] Had it therefore been my task to weigh in the balance the conflicting views (which of course it was not) that evidence would be powerfully against the pursuer's experts who would have us believe that Sam was suffering hypoxia by 07.50, that there was a deteriorating CTG throughout the day and yet no damage done by 17.30, 91/2 hours later and in the absence of any meconium even at the end stage (meconium being a sign of hypoxic insult).

[188] Finally regarding the challenge made by Mr MacAulay to the credibility of Dr Owen Mr Anderson submitted that there was no evidence which in any way suggested that Dr Owen had departed from the duty which he owed the court and had given anything other than wholly independent evidence.

V. DISCUSSION
LEGAL ISSUES
[189] In advancing their legal submissions senior counsel for the parties to this case referred me to a number of authorities and to the Stair Memorial Encyclopaedia on the Law of Scotland. These were principally referred to in order to explain the principles which I ought to apply and in one case to provide an example of their application in similar factual circumstances. In the end, however, there was no dispute as to the approach which I should take in relation to either branch of the pursuer's case. The parties agreed that the principal test to be applied was that laid down by Lord President Clyde in Hunter v Hanley namely that the pursuer must prove that the doctor who is said to be negligent had been guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Further, it was not disputed that, as Lord President Clyde also said (at page 206), to establish liability where a deviation from normal medical practice is alleged the pursuer must prove (i) that there was a normal and usual practice, (ii) that the doctor had not adopted that practice and (iii) that the course which the doctor adopted was one which no professional man of ordinary skill would have taken if acting with ordinary care. The same test is applied in England and is referred to in the English cases, some of which I was referred to, as the Bolam test. As in this case the pursuer alleges that it was Dr McLellan who was the negligent party it was not disputed that the relevant standard of professional man is the standard of the obstetric consultant of ordinary skill.

[190] The main area of contention between the parties in relation to the first branch of the pursuer's case, namely: the failure in the management of care during labour arose out of the evidence of the competing expert witnesses who were called for either side. Again there was no dispute as to the law which I ought to apply in assessing this evidence. Both parties, as I understood it, accepted the summary of the legal propositions which Lord Hodge had outlined in the case of Honisz v Lothian Health Board and Others at paragraph 39 of his opinion:

"[39] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at page 639F to G). Secondly, however the court does not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Brown-Wilkinson at pages 241G to 242F, 243A to E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgement. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which that expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test. As Lord Brown-Wilkinson said in Bolitho (at page 243 D to E), 'It is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defender's conduct falls to be assessed.'"

[191] In advancing their legal submissions in relation to the second branch of the pursuer's case, namely: informed consent it was accepted by both parties that the principal test was again that laid down in Hunter v Hanley and Bolam except that although the degree of disclosure required for a particular patient was an issue to be judged primarily on the basis of medical evidence, there might be circumstances where the proposed treatment involved a substantial risk of grave consequences in which a judge can conclude that, notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion, a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical man could fail to warn of the risk save in emergency or some other sound clinical reason for non-disclosure (Sidaway v Board of Governors of the Bethlehem Hospital and Others). In Scotland Sidaway has been followed in a number of cases to which I was referred by both counsel.

[192] The above statement of the law sets out the degree of disclosure incumbent upon a doctor where he is unilaterally offering information as regards the risks of following a particular course of proposed treatment. The position it was accepted by both parties is a little different where a patient has expressly raised with the doctor questions of specific risks involved in a particular course of proposed treatment. In those circumstances it was accepted by both parties that the duty of the doctor is as stated by Lord Bridge of Harwich in Sidaway at page 898C-D, namely:

"The doctor's duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires."

[193] Accordingly it was with these approaches in mind that I sought to assess the evidence and the competing submissions.

The First Branch of the Pursuer's Case
Management of Labour
[194] This branch of the pursuer's case was advanced on the basis that Dr McLellan had misinterpreted the CTG trace during four periods of the pursuer's labour. It was Mr MacAulay's position in his submissions that there were failures in care at the end of each of these periods, namely: at or about 08.10; 12.30; 13.45 and 16.00. It was his position on the evidence of Doctor Stewart and Professor Neilson that what was shown in each of these sections of the trace was a pathological trace. It was his position that this pathological trace mandated Dr McLellan at each of these points to carry out either an FBS and if no FBS was carried out to move immediately to a caesarean section.

[195] Mr MacAulay recognised at once that the defenders' expert opinions as advanced in the course of their evidence were both to the effect that on the basis of their interpretation of the said sections of the CTG they held markedly different views to those of the pursuer's experts as to the proper interpretation of the trace. Given that evidential position and the legal principles earlier identified the first question for the court became: had the pursuer established that the body of expert opinion led on behalf of the defenders did not withstand logical analysis?

WAS IS ESTABLISHED THAT THE DEFENDERS' EXPERTS OPINIONS DID NOT STAND UP TO LOGICAL ANALYSIS?
[196] The balance of the evidence led before me established clearly that the interpretation of CTG trace readings was a matter of clinical judgement and that variation in interpretation was reasonably common. The complaints regarding each of the said sections were based almost entirely upon what was said to have been a failure by Dr McLellan to categorise the trace as pathological. Clearly it would have been wrong for me to simply prefer one body of expert evidence as correct over another. Rather I had to examine the defenders' expert evidence to see if it could be held to be unreasonable or illogical or irrational i.e. to see if it could not stand up to logical analysis.

[197] The very standing of these witnesses might have been thought to be sufficient to demonstrate that their views could properly be described as reasonable and responsible and that in arriving at their conclusions they had appropriately weighed any comparative risks and benefit. Any doubt, however, that could be had disappears on hearing the explanation and reasoning which underlay their evidence.

[198] In examining the evidence given by the defenders' experts on how they conducted their interpretation of the entire CTG trace it was obvious that they had applied reason, learning, skill and considerable experience to the said task. In no sense could any of the descriptions of what they saw in looking to particular features of the CTG trace be described as irrational or illogical or unreasonable. They had regard to factors which on any view of the evidence they were entitled to have regard.

[199] Mr MacAulay submitted that the defenders' experts and Dr McLellan's reliance on variability as a reason for not intervening by either having an FBS carried out or proceeding to a caesarean section did not stand up to logical analysis. All of these doctors gave by reference to the underlying physiology detailed reasons for the importance which they attached to the maintenance of variability and why it was a reassuring factor when it was seen on a CTG trace. I noted that Dr Stewart in his evidence stated that normal baseline variability was a normal reflex response of a baby and that stress in a baby is often associated with loss of variability though not always. Professor Neilson accepted that normal variability was an important feature in pointing to foetal health, although he went on to say that patterns of late decelerations even with normal variability were indicative of hypoxia. Thus it did not seem from the pursuer's own expert evidence that there was anything illogical or irrational in having regard to good variability as part of the overall picture presented to a doctor and that it could also be looked at as pointing to good foetal health. I also note that the guidelines 7/7 at table 2.3 state that variability of 5 bpm or more is a reassuring factor. I accept that the precise significance of a period of good variability when taken as part of the whole picture presented on a CTG trace may well on the evidence be a matter upon which all doctors may not agree, however that is a matter of clinical judgement and not a basis upon which I could hold that the views of the defenders' experts and Dr McLellan were illogical or irrational. Good variability was one factor in a whole picture which the doctors on the defenders' side considered as reassuring. I cannot identify a basis for holding that view as being irrational or illogical.

[200] Mr MacAulay secondly sought to advance a position that Doctor Mason in his evidence stood very much apart from the other experts who had given evidence in his reliance on the presence of accelerations which he noted within the trace as supporting his view that a portion of trace did not support the pursuer's position that the trace was pathological and immediate intervention was required. As I understood it, it was submitted that his reliance on accelerations evidenced the illogicality or irrationality of his views. I do not accept this submission. In my judgement he did not stand alone on this matter. I noted that Doctor Owen in the course of his evidence also referred to accelerations as one factor to be had regard to in the interpretation of the picture presented on the CTG trace and in particular at one point in his evidence said that they were the most reassuring signs relative to the health of the foetus. In addition Dr Stewart in his evidence said that a doctor should be reassured by the presence of accelerations on a trace. Professor Neilson's position was that accelerations were a good sign when they were seen on a trace. The defenders' experts position relative to accelerations was fully reasoned and supported in the literature. I have been unable to find any evidence from any of the experts which was to the effect that an acceleration was not a reassuring sign. There were perhaps differences in the evidence among the experts as to when an acceleration could be identified. There were clearly differences in the experts' opinions as to the precise clinical significance of the presence of accelerations when looked at within the whole clinical picture as presented in a particular section of trace. However, in my opinion it cannot be said that accelerations were factors which should not have been taken into account when interpreting a trace. It cannot be said that there was no rational or reasonable explanation for taking these into account. It cannot be said that there was no rational or reasonable explanation for holding them to be reassuring factors. It cannot be said that Doctor Mason's evidence on this matter stood on its own.

[201] Turning to the defenders' experts approach to late decelerations, where they disagreed with the pursuer's experts as to identification of such they gave reasons for their disagreement. They gave reasons for not attaching the same significance to what the pursuer's experts described as variable decelerations with a late component as late decelerations. They again referred to the underlying physiology of the foetus to explain why there was a difference in the significance of these when seeking to interpret the CTG trace.

[202] Insofar as they saw late decelerations they gave detailed explanations why they did not accept that these had the significance which was attached to them by the pursuer's experts. The factors they referred to included: lack of persistence; lack of depth (shallowness); lack of uniformity; not happening with each contraction; the failure of the decelerations to become progressively deeper and the maintenance of variability within the deceleration itself. There were reasons given for the relevance of these factors by reference to the physiology of the foetus and in particular by reference to the doctor's understanding of hypoxia as a developing and progressive condition. They also in interpreting the significance of any late decelerations had regard to the whole picture as presented by the entire CTG trace and how it had developed throughout the day which on any view of the evidence they were entitled to do. In so doing they had regard to any reassuring factors they found. The approach of the defenders' experts to the issue of late decelerations could not in my view be said to be irrational. It was fully reasoned and supported. It could not be said that there was no logical basis for their approach. Their position seemed defensible.

[203] On looking to the defenders' experts' evidence in relation to all sections of the trace they in my view had had regard to the features identified in the guidelines and the definition of those features contained therein, (see p11 of the Guidelines) and had regard to the factors in the guidelines which were said to point towards a categorisation of the trace as normal, suspicious or pathological. At paragraph 1.1 of the Guidelines it is stated relative to the aim of the Guidelines:

"Clinicians involved in intrapartum care must use their professional knowledge and judgement when applying the recommendations to the management of individual women"

In my judgement this is what the defenders' experts did. In so doing, and in following the way in which the Guidelines should be used it cannot be said that their views are irrational or illogical. Rather had they slavishly followed the Guidelines and not applied their clinical judgement there would have been more to be said for their opinions being irrational. On looking at their evidence they applied their professional knowledge and clinical judgement to the features as they appeared within any given section of the trace. It could not in my judgement be said that they had ignored any feature identified within the guidelines.

[204] There were sections of the trace in which there was a difference of opinion between the pursuer's and defenders' experts as to what particular features were shown at a given point. Again in looking to the defenders' experts' opinions on such sections of the trace where they differed in their identification of features from the pursuer's experts I could identify no lack of logic or rationality in the views which they gave. It could not be said in my view that they had failed to properly consider the definition of features as contained in the guidelines. Looking to their evidence they always gave detailed reasons as to why they differed from the pursuer's experts in their identification of a particular feature.

[205] In my judgement in arriving at their views as to the clinical significance of the various sections of the trace the defenders' experts had appropriately weighed any comparative risks and benefits when considering whether a caesarean section should be performed. They had had regard to the risks of a caesarean section being performed on the pursuer. There were risks on performing a caesarean section to both the mother and the foetus. These risks were set out in some detail by Dr Mason in his evidence at pages 26 to 28 of the transcript. It was in my judgement important to note in considering whether the defenders' experts views were rational that the performing of a caesarean section is not without risk. They were aware and took account that this was a high risk pregnancy. They had regard to any non-reassuring factors which they identified in any section of the trace. They had regard to any positive factors such as accelerations and maintenance of variability. They applied their minds and fully analysed any non-reassuring factors to see if they were of clinical significance at any point in the trace. They sought to look at the trace as a whole and interpret particular sections in the light of what had gone before in the labour. They included in their consideration of the trace the long periods of normality in the trace. They explained that the importance of these periods of normality was that hypoxia was a progressive problem and therefore what was normally presented was not a picture of the type which was shown in this trace. It was their position that the hypoxia would have developed and one would not have had long periods of the trace, which as the pursuers own experts accepted, were broadly speaking normal and required no intervention, if the baby were becoming hypoxic. This was another factor to which they had regard. This appeared to be a reasoned view based on the physiology of the foetus. I could not identify any illogicality or irrationality in this position which they took up. In fact it was never in my judgement explained by the pursuer's experts why periods of improvement should occur, when as I understood it their position was that there was a developing hypoxia/acidosis. I at no point gained any explanation from them in relation to this. The defenders' experts considered at all times in seeking to judge the clinical significance of the trace the underlying physiology of the foetus. This underpinned and supported their views. It could not be said that their views on the interpretation lacked reasoning, rationality or logic.

[206] Overall their opinions based on their interpretation of the CTG trace and the various other relevant considerations were all matters of clinical judgement on which responsible and competent consultant obstetricians could reasonably hold different views. I include in this their views as to the cause of the secondary arrest. These differences in view between the pursuer's and defenders' experts have to be viewed against a background that interpretation of CTG traces is a matter of judgement and that variation in opinion is not uncommon. It is therefore perhaps in no sense surprising in this case that different interpretations have been reached by the various experts who appeared before me.

[207] I have been unable to conclude that the defenders' experts' views on the interpretation of the CTG trace cannot be supported at all. It could not be said that the defenders' expert's position resulted in a course being taken which elementary teaching would have advised should never be taken, that being the type of situation which could be said to not be able to withstand logical analysis. This case in my judgement could not be said to be one of those rare cases in which I am entitled to reject a body of expert evidence which supported the actings of the doctor criticised. Their position that there was no need to intervene at any of the points identified by the pursuer's experts was overall in my view clearly defensible. Their views may be wrong. I am, however, unable to identify any basis for wholly rejecting them as illogical.

[208] Having considered whether as a whole the defenders' experts' interpretation of the trace could withstand logical analysis I require given first the evidence of the pursuer's experts relative to one section of the CTG trace and secondly the approach taken by Mr MacAulay in the course of his submissions to consider further the evidence relating to two sections of the trace, namely: that leading up to the decision at 12.30 and that leading to the decision at 15.50.

THE DECISION AT 12.30

[209] I summarised Dr Stewart's views on this section of the trace from approximately 11.45 to 12.30 at pages 24 and 25 of this opinion. His position at 12.30 was that heart rate was 150 to 155; with good variability and a few shallow decelerations, though these were late in timing. Nevertheless it was his view that a caesarean section was required. The reason for this was the occurrence of the secondary arrest. It was his position that the secondary arrest pointed to likely mechanical difficulties in delivery. Thus it was not only the CTG trace but the secondary arrest which caused him to come to the view that there was a need to intervene.

[210] Professor Neilson in considering this section of the trace also had regard to the secondary arrest in considering the necessity for intervention and took the same view as to the cause of this secondary arrest as Dr Stewart.

[211] Doctors Owen and Mason gave their views regarding the interpretation of the trace on this section and as I have said I could not hold these irrational or illogical. In addition they considered the issue of the secondary arrest. Their views on the cause of the secondary arrest were different from that of the pursuer's experts. Their view was that the cause of this secondary arrest was poor uterine activity together with the foetus' position within the womb. In these circumstances they did not regard the secondary arrest as being a factor which pointed towards the necessity for intervention at this stage. They gave reasons for the views which they reached as regards the cause of this arrest and for rejecting the pursuer's experts' views on the cause. When considering whether action should have been taken at that time by Dr McLellan they factored into their views their position regarding the secondary arrest. The defenders' experts' position regarding the secondary arrest appeared defensible. I was unable to identify anything illogical or irrational in their views as regards the clinical significance of the secondary arrest. Looking at their whole approach to the question of what if any action should have been taken at 12.30 this in my judgement cannot be said to not be able to stand up to logical analysis. The issue of the cause of the secondary arrest and its significance were matters of clinical judgement on which responsible and competent consultant obstetricians could reasonably differ. One further piece of evidence in relation to this section of the trace is of some significance. As I have said Dr Stewart's opinion was that it was a failure in care not to proceed to a caesarean section at 12.30. However immediately after giving this answer he was asked:

"And is there any question of that in your opinion?

I think only if the mother had particularly wished to proceed to aim for a vaginal delivery".

I found this answer somewhat difficult to reconcile with his view that there had been a failure in care for the doctor to not proceed at once to a caesarean section. My understanding of his position was that there was a developing hypoxia combined with a clear sign that there was a mechanical problem. If that was right on what basis could it be said that the labour should be allowed to continue merely because the mother wished it to continue? Or put another way how was it a failure in care not to immediately deliver, if it was an option to continue the labour if that was the mother's wish. In my opinion the evidence of Dr Stewart regarding this matter when read as a whole does not amount to him saying that there was negligence at that point in failing to move immediately to a caesarean section.

THE DECISION AT 15.50
[212] From the way in which Mr MacAulay's submissions were structured, this particular section of the CTG was one upon which he particularly relied in submitting that the management of the pursuer's labour was negligent.

[213] In relation to this section of the CTG trace Mr MacAulay's position in submission was a little different from that which he had taken in relation to the three other periods. In relation to this section of the trace he founded on the contention that not only the pursuer's experts were of the view that this section of the trace was pathological, but Dr McLellan, when her evidence was analysed, also admitted that the trace was pathological, however, she nevertheless did not intervene by either doing an FBS or a caesarean section. Rather in his submission she relied on the maintenance of variability as justifying her non-intervention despite asserting that there was a pathological trace and it was his position that there was no basis for this position in the evidence.

[214] It was in my judgement an oversimplification of the position of Dr McLellan to characterise it as being based to the exclusion of all other factors on maintenance of variability. She undoubtedly did regard this as a very important factor. However, she also placed considerable reliance on the response of the foetus to scalp stimulation at the point at which she was making her decision at about 15.50. She gave reasons for her attaching particular importance to that finding at that time. Her evidence on this feature has to be seen in the context of her evidence and the evidence of the experts for the defenders that such a response is a particular sign of foetal health. (P5 2nd volume of her transcript). In addition her view when her whole evidence was had regard to was that the late decelerations had not been sustained for a sufficient period to become clinically significant. Finally she also factored into her consideration her view that the decelerations were not deep, again in her view pointing away from the decelerations being significant clinically. She also took account of a recovery in variability and a settling back of the foetal heart rate to 160 in the period immediately prior to her examination at or about 15.50. She then applied her professional knowledge and judgement to that picture. When looked at in the context of the whole CTG trace and her understanding of the progressive nature of hypoxia she decided immediate intervention was not required. I do not see how in those circumstances the evidence of Dr McLellan supports the pursuer's position. I accept that at one point Dr McLellan accepts that part of this section is pathological. However, this answer has to be looked at in the context of her whole evidence. The doctor at this point accepts no more than this: that on the criteria set down in the guidelines, this could be a pathological trace at this point. It, however requires to be noted that she went on to say in cross examination that these are merely guidelines, i.e. they are recommendations. She stressed that in considering whether to deliver a baby by caesarean section one did not just tick boxes, rather one applied clinical judgement to the trace which one saw. It was her position that she did this in relation to this section of the trace and found reassuring factors within the trace which for reasons she explained, outweighed the non-reassuring factors she had also identified.

[215] In any event I have accepted that the evidence of Doctors Owen and Mason supports Dr McLellan's decision not to intervene (although their interpretation of the CTG trace is not entirely on all fours with Dr McLellan) and their evidence is, as I have said, capable of withstanding logical analysis and therefore in those circumstances, it cannot be established that there was a failure in the care at this point by Dr McLellan not intervening.

[216] When looked at Dr McLellan's interpretation of the trace as a whole is similar to those of the defenders' experts. There are differences in what she on occasions opined she saw on the trace and what the defenders' experts saw. However, the factors she takes into account and her approach to and decisions on the significance of the trace at the four different parts founded upon by the pursuers are as a whole supported by the defenders' experts.

[217] I am accordingly satisfied that there was no failure in the management of care at any of the four points relied upon by Mr MacAulay. I am not persuaded on the evidence that there was negligence at any of these four points in the course of labour.

[218] Mr Anderson made fairly lengthy submissions relative to the averment made on behalf of the pursuer in her pleadings at Article 8, page 22 as follows:

"Had a decision to deliver by caesarean section been taken before 17.30 on 1 October 1999 Sam would have been born healthy."

[219] On a proper understanding of that averment, it is my view that what is being said there, is that, as at 17.30 immediately before the attempt was made to deliver vaginally, Sam was healthy.

[220] It is also a matter of agreement between the parties that Sam survived a period of twelve minutes of acute hypoxia.

[221] The defenders' experts' position was that had Sam been the subject of progressive hypoxia throughout the period of labour (which was the pursuer's experts' position), then Sam would not have been able to survive twelve minutes of acute hypoxia and moreover would not have survived with his intellect as presently found. It was the defenders' experts' position and was a position put forward by Mr Anderson in the course of his submissions to me that the pursuer's experts' position that Sam was subject to progressive hypoxia throughout the day could not be correct given the averment as to his state of health as at 17.30 and given his survival following the agreed twelve minutes of acute hypoxia. The defenders' experts in the course of their giving evidence gave detailed reasons as to why that could not be the case.

[222] On turning to the pursuer's experts' evidence, I am wholly unable to identify any explanation as to how Sam could have been wholly healthy at 17.30 having been subjected to progressive hypoxia throughout the day. In addition, there was no explanation as to how Sam, if he had been subjected to that, could have survived the twelve minutes of acute hypoxia and in particular survived and be in his present condition. It is not for me to prefer one body of expert evidence over another and I do not do that. However, I find myself in agreement with Mr Anderson's submission that the foregoing was a difficulty in the pursuer's case. At the heart of the pursuer's case and of the pursuer's expert evidence, there appeared to be no explanation of this difficulty and accordingly it seemed to me that had I required to look at the logical basis of the pursuer's expert's evidence and see whether their evidence stood up to logical analysis I would have not have been able on their evidence to answer the question: why was Sam undamaged and healthy at 17.30 able to survive 12 minutes of total hypoxia and be in his present state of health if he was subject to progressive hypoxia throughout the labour? I of course do not require to see if there is an answer to the question as it is to the defenders' expert evidence I must apply my mind and see if that has been shown to be illogical or irrational and for the reasons I have stated the pursuer has entirely failed to show that.

[223] For the purposes of my discussion to this stage I have accepted that the defenders' experts' opinions are truthful. However, in the course of his cross-examination of Dr Owen, Mr MacAulay challenged his credibility. He maintained that challenge in the course of his submissions and invited me to find Dr Owen to be incredible for the reasons which he had advanced.

[224] The reasons advanced for holding Dr Owen to be incredible, in my view, were minor in the extreme. They amounted to no more than this, that, Dr Owen had appointed Dr McLellan to a committee and he saw her at the meetings of that committee. There was no suggestion made by Mr MacAulay that their relationship went beyond the above.

[225] I do not think that the above of itself in any way damages Dr Owen's independence. I had no difficulty in accepting his evidence that he understood the duties which he owed the court when giving evidence as an expert. There was nothing in either his evidence itself or the manner in which he gave evidence which in any way suggested that he had failed in his said duties to the court. I note that Mr MacAulay in the course of his submissions could point to nothing in the evidence of Dr Owen which pointed to his being anything other than impartial or independent. I accordingly reject Mr MacAulay's submissions and hold Dr Owen to be credible. It follows that I hold that the views expressed by him were objective, independent and impartial.

[226] For the foregoing reasons, I reject the whole of the pursuer's case based on lack of care in the management of her labour.

INFORMED CONSENT
[227] There were two branches of the pursuer's case based on informed consent. The first of these was based on Dr McLellan's duty unilaterally to advise as to risks. In light of the authorities to which I was referred the question for the court was this: was there a substantial risk which would affect the judgement of a reasonable person? (Pearce v United British Healthcare NHS Trust). Or put another way: was there involved in the proposed course of treatment (here vaginal delivery of Sam) a substantial risk of grave consequences? (Lord Bridge of Harwich at 900 D-G in Sidaway v Board of Governors of the Bethlem Hospital).

[228] In the instant case the pursuer's complaint was that she had not been informed of the risk of shoulder dystocia.

[229] The evidence as to the incidence of shoulder dystocia in patients presenting a medical history of a type similar to the pursuer, i.e. diabetes and an estimated birth weight of about 4kgs, did not appear to any material extent to be in dispute. Nor did the evidence regarding the likelihood of an adverse outcome for the mother and foetus should shoulder dystocia occur and in particular the likelihood of a brachial plexus injury or cerebral palsy resulting following shoulder dystocia appear to be in material dispute. The principal evidence in relation to this was given by Dr McLellan. Her position was that the rate of shoulder dystocia in diabetics who gave birth to a baby of about 4kgs was about 9 to 10%. However, in the vast majority of shoulder dystocia cases the shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny: 1/500 approximately for a brachial plexus injury and of that 1/500 approximately 1-2% of those would suffer cerebral palsy. It was only where the baby was expected to weigh more than 4.5kgs that the guidelines for obstetricians recommended an elective caesarean section (pages 17 to 19 2nd volume of Dr McLellan's evidence).

[230] It was urged upon me by Mr MacAulay that the figure to which I should have regard when considering whether there should be a warning of the risk was the figure for the occurrence of shoulder dystocia. Mr Anderson urged upon me that the figure I should have regard to was the risk of a substantial adverse outcome.

[231] The approach urged upon me by Mr MacAulay was that followed by Mr Justice Nicol in Jones v North West Strategic Health Authority. In that case the facts were very similar to those before me and the figures presented to the judge as to the level of risk of shoulder dystocia and of an adverse outcome arising from the shoulder dystocia were similar to those presented to me (see paragraphs 49 and 50).

[232] Mr Justice Nicol at paragraph 50 in coming to his view that the risk he should have regard to is the risk of shoulder dystocia developing rather than the risk of an adverse outcome arising therefrom says that he is following the decision in Pearce v United Bristol Healthcare NHS Trust.

[233] In the Pearce case the Master of the Rolls Lord Woolf says that:

"If there is a significant risk which would affect the judgement of a reasonable patient then in the normal course it is the responsibility of the doctor to inform the patient of that risk".

Immediately following that he then refers to what perhaps can be described as the foundation case in this area of the law Sidaway and says this:

"In the Sidaway case Lord Bridge recognises that position. He refers to a "significant risk" as being a risk of something in the region of 10%"

Accordingly it does not appear that Lord Woolf is in any sense seeking to widen or alter what Lord Bridge recognised as substantial risk in the case of Sidaway. What was held by the majority in the House of Lords including Lord Bridge to be a substantial risk was this:

"a substantial risk of grave consequences" (emphasis added)

That the proper matter to have regard to is the question of risk of grave consequences is emphasised by Lord Caplan in Moyes v Lothian Health Board at 450E-F.

"A patient who is not fully compos mentis might illustrate such an exception. However the example given by Lord Bridge and approved by Lord Keith of a situation where it would be necessary in the interest of reasonable prudence to give a warning to the patient is where an operation involved a substantial risk of grave adverse consequences as for example a 10 per cent risk of a stroke. Even then the need to inform the patient may require to yield to "a cogent clinical reason". On the other hand the risk which the Sidaway case was concerned with, namely a risk of 1 per cent to 2 per cent of adverse consequences, was not considered by the majority of the court to require as a matter of necessary prudence disclosure of the risk to the patient".

Accordingly in my view on the basis of the authorities it is to the risk of adverse outcome to which the court should have regard when considering whether a warning should be given. In my view this must be correct. If there is a substantial risk of a problem arising but no risk of an adverse outcome following therefrom I can identify no reason why a doctor should advise the patient of that risk. To use the words of Lord Woolf in Pearce although there is a substantial risk of that problem arising, given the likelihood of an adverse outcome it would not be a risk which would affect the judgement of a reasonable patient

[234] In the foregoing circumstances I am not prepared to follow the approach taken by Mr Justice Nicol in the Jones case. I have had regard to the figures for the risk of an adverse outcome and in my opinion these fall far short of amounting to a substantial risk of grave consequences.

[235] Thereafter the matter is one to be judged primarily on the medical evidence. I am then faced with two bodies of competing evidence supporting different opinions as to whether what was said was in conformity with proper medical practice and in these circumstances I could not hold negligence had been proved.

[236] Accordingly the pursuer's case in terms of this branch of the argument must fail.

[237] One final matter which I would turn to in relation to this branch of the pursuer's case and that relates to the evidence of Dr Stewart on this matter and the answer which he gave when asked about this which I quote at pages 26 and 27 of this opinion. This answer in my judgement tends very much to support the defenders' case and having regard to that answer it is my view that the evidence of Dr Stewart when looked at does not support the pursuer's contention of negligence in terms of this branch of the pursuer's case.

SECONDARY POSITION
[238] Apart from this primary argument under this head, it was also argued that there was a duty to warn the pursuer of risks such as shoulder dystocia in that the pursuer had specifically raised the issue of risks of vaginal delivery with Dr McLellan on more than one occasion at consultations at the antenatal clinic and therefore Dr McLellan was required to inform her in particular of the risk of shoulder dystocia. There was no dispute that if the risks of a particular course of treatment were raised by a patient then the doctor must fully respond to those enquiries (Lord Bridge in Sidaway at p.898B) and that in this case if the pursuer raised the issue of risks of vaginal delivery with Dr McLellan then shoulder dystocia would have had to have formed part of the discussion.

[239] Central to this part of the pursuer's case is the credibility and reliability of the pursuer. There was a dispute as to whether she had raised the question of what were the risks in vaginal delivery with Dr McLellan. Thus it was only if I held her to be credible and reliable on this issue and preferred her evidence to that of Dr McLellan that I could find in her favour under this head. Mr Anderson in the course of his submissions made a detailed and root and branch attack on the pursuer's evidence on this issue. He submitted that she was both incredible and unreliable in relation to these particular matters.

[240] His first ground of attack was that the pursuer gave evidence that as at 36 weeks she estimated she was going to give birth to a baby weighing 4.2kgs. His submission was that at that stage nobody was estimating such a birth weight and therefore her evidence was incredible.

[241] The pursuer gave this answer at p.17 of her transcript. She gave a very similar answer at page 23 of her transcript. It is correct that nobody was estimating a birth weight of that level (Dr McLellan's view was 3.9 kgs). It is very difficult to see how the pursuer was guessing that weight from the estimated foetal weight chart (6/59 p.178) or from anything that was said to her. Dr McLellan was estimating a birth weight of 3.9kgs and was not challenged that that was her estimate. This was in my view a clear example where an answer was wholly influenced by the outcome and was a rewriting of history in light of the outcome. It was noticeable that the pursuer in these answers gave an estimated weight, which was in fact almost the same as the actual birth weight again suggesting that her answer was influenced by what had happened.

[242] In addition that answer did not fit in with her position given immediately following it, namely: that the pursuer was aware that Dr McLellan would give her a caesarean section if the estimated birth weight was over 4kgs. Yet according to her evidence she never asked for a caesarean section (pages 23 and 24 of her transcript). I judged that this was a factor which again pointed away from the pursuer's evidence on this issue being credible and reliable. Mr Anderson in addition submitted that if the estimated foetal weight chart was looked at there was no basis for the pursuer expressing concerns about the estimated birth weight of Sam from the 28th week as she said in evidence she had done (see: p.65 of her transcript). This chart and the accompanying notes was the only basis for the expressing of such concerns and on being looked at I agree with Mr Anderson it is difficult to understand why the pursuer would be expressing concerns at that stage. The figure shown is approximately half way between the 50th and 90th centile and it is very difficult to see why such a figure even given the pursuer's small stature would have caused her to raise this issue. It seemed to me that this was the pursuer again rewriting history, I could not accept her evidence on this point.

[243] In the record this branch of the pursuer's case is based on two very short averments at page 6 letter C:

"The pursuer was concerned that she would experience difficulty delivering Sam vaginally...The pursuer expressed her concerns to Dr McLellan. The pursuer wanted to be fully advised as to her options and Dr McLellan told her not to worry".

The first thing that is noticeable about these averments is that the question of her asking Dr McLellan about risks is never mentioned. However, in her evidence the pursuer repeatedly stated that the issue of risk was specifically raised with the doctor. In the averments there is no question of the issue of risks of vaginal delivery being repeatedly raised with Dr McLellan. At page 9 of the transcript of evidence the pursuer states she repeatedly asked the consultant about the problems she could encounter. At page 17 she states that she went over all her concerns with all these risks with the consultant at the 36 week appointment. At p.19 she sated:

"So we did have many discussions about that (problem) but she never addressed any of my concerns or answered any of my questions". At page 24 she states that she wanted to know the risks and benefits of each option. I wanted to have a discussion with her".

In cross examination at page 64 when asked about what questions she asked Dr McLellan she says:

"I asked what kind of problems could be encountered with a small mother having a large baby specifically, and what problems could be encountered during delivery".

At page 74 she specifically states that she wanted to understand the risks of each option.

[244] The said evidence does not fit well with the record. It goes well beyond some expression of concern about difficulty in giving birth to Sam as averred. In light of the above evidence she has specifically and repeatedly asked Dr McLellan about risk. I gained the very firm impression that there was a pattern here of over statement and exaggeration and that history was again being rewritten.

[245] What is averred on record is that the pursuer wished to be fully advised as to her options. It is clear from her evidence that the pursuer understood at all material times that there were only two options (a) vaginal delivery with possible recourse to caesarean section or (b) elective caesarean section. She did not require to be advised as regards these.

[246] The overall picture presented by the pursuer in her evidence is of her and Dr McLellan being very much at loggerheads in relation to this question of her not being informed as regards the respective risks of the two options open to her and their having been at loggerheads on this matter during the whole of the latter part of the pregnancy. The pursuer is a clearly highly intelligent person with a mother who is a doctor and a sister who is a doctor. It seemed to me that if she was not receiving answers in relation to matters, which according to her own evidence were of critical concern to her then in my judgement she would not have accepted that situation and would have sought a second opinion or would have asked for a different consultant to be the treating physician. Looking to her whole evidence and the manner in which she gave it I do not think that for a moment she would have accepted not getting answers to questions which she was specifically putting to Dr McLellan. The view which I have formed of the pursuer did not fit in with the picture she was seeking to present of what had passed between her and Dr McLellan at the various consultations.

[247] Over and above that had the impasse been reached with Dr McLellan, as the pursuer sought to portray the position, I believe on the evidence of Dr McLellan that this would have been noted within the medical records, as it would have become a matter of clinical significance, and there was no such record.

[248] Overall I found myself in agreement with Mr Anderson that the pursuer could not be held to be credible and reliable on this issue. I broadly accepted his detained submissions regarding the pursuer's credibility and reliability.

[249] Turning to Dr Gillani, the pursuer's mother's evidence, her position was that she saw Dr McLellan about the point that the baby was about 8lbs. She said that when she spoke to Dr McLellan she said to her that she wanted to discuss the options for delivery, the plans for delivery, the plan of action. However, as submitted by Mr Anderson what she specifically said in examination in chief was that she did not ask about the question of risks. This evidence in my view undermined the pursuer's position that she had been asking Dr McLellan about risks and not getting answers and accordingly had asked her mother to speak to Dr McLellan to see if as a fellow doctor she could get answers (p.20 of her transcript). If that was the position then why was that specific issue not raised? In those circumstances at its lowest, it is difficult to understand why Dr Gillani did not raise the matter. Again it is difficult to understand if both the pursuer and her mother who is a doctor can't get answers why the pursuer remained under the care of Dr McLellan.

[250] The pursuer's ex-husband Kerr Montgomery gave evidence about the antenatal period. He said that the pursuer was raising concerns with Dr McLellan for about the last one third of the pregnancy. For reasons I have already given I do not believe that this evidence is correct. In the course of his evidence he did not state that the pursuer specifically raised risks with Dr McLellan. He described Dr McLellan as regards her answering of questions as being offhand and dismissive. If that was Dr McLellan's attitude and there is some suggestion in the pursuer's evidence that she also thought this then again why would the pursuer remain under her care. Had Dr McLellan been behaving as suggested in this evidence I do not believe that for a moment the pursuer would have remained under her care. This again appeared to be the rewriting of history based on the outcome.

[251] Mr Anderson relied on the following answer given by the pursuer as supporting his argument that she was not credible and reliable. She said in evidence that Dr McLellan told her on coming round from general anaesthetic:

"What you thought would happen has happened, I'm really sorry I should have done a caesarean section".

For reasons advanced by Mr Anderson I do not regard this evidence as credible and reliable.

[252] Mr Anderson made a number of other points relative to the pursuer's credibility which I did not believe were well founded. As regards the evidence the pursuer gave about her mother's children she said they were 4lbs and 51/2 lbs (p.17 of her transcript) and not as submitted by Mr Anderson.

[253] As regards her position about not discussing with anyone the medical records and her ex-husband saying they had discussed these. I do not believe the difference in evidence is of any materiality. The pursuer may very well simply, after a long period, forgotten discussing them with her ex-husband.

[254] As regards her answer that Dr McLellan was "putting her career in front of what actually happened.". I am of the view that little if anything can be taken from that answer.

[255] Lastly Mr Anderson pointed to the fact that in a very lengthy letter of complaint, prepared by her sister, also a doctor, there was no reference to the issue of risks having been raised by her with Dr McLellan. In her equally lengthy reply the only reference to informed consent by Dr McLellan relates to the period immediately prior to birth. It accordingly does not appear that the pursuer raising the issue of risks with Dr McLellan and not getting answers was an issue at that time. If the pursuer's evidence was credible and reliable then in my view this would have been a major matter raised in the letter of complaint. Again this supports the conclusion I have reached that there is rewriting of history.

[256] Looking to the whole of the pursuer's evidence on this aspect of the case I gained the impression that there was rewriting of history and that her evidence was affected by the tragic outcome for Sam. To an extent the pursuer may have convinced herself that she did raise the issue of risks with Dr McLellan and that any rewriting is unconscious. However, I am clear that rewriting has taken place and that the pursuer cannot be held to be credible and reliable in relation to the issue of whether risks were specifically raised with Dr McLellan.

[257] It seems to me on the evidence that what we had here is, as described by Mr Anderson a first time mother with perfectly understandable concerns about her diabetic control and latterly in the antenatal period concerns about the size of her baby and her ability to deliver vaginally. At the 36 week appointment said concerns were raised. Dr McLellan's position remained that having regard to the whole clinical picture that the pursuer would be able to deliver vaginally, and if difficulties were encountered then recourse would be had to a caesarean section. This was the position according to all of the evidence she had expressed throughout the appointments. She did not mention the risks of shoulder dystocia because of the extremely small risk of an adverse outcome arising should shoulder dystocia arise. In light of the pursuer's concern at 36 weeks she had no scan carried out at 38 weeks, in order that the pursuer's concerns should not be heightened. This was a position wholly supported by the defenders' experts.

[258] In relation to the informed consent aspect of the case I found Dr McLellan to be credible and reliable. I believed that her evidence was given in a clear, coherent and consistent manner. I found her in relation to this aspect of the case to be an impressive witness. I felt that she answered questions on this issue to the best of her recollection and in a straightforward manner. It appeared to me that had an impasse been reached with the pursuer over what she should be advised regarding risks she would have taken the course of passing the pursuer to another consultant. If the issue of risk had been a question which was constantly being raised by the pursuer during the antenatal period I would have expected to have seen this in the medical notes, it being Dr McLellan's practice to note such matters. The same would have been true had Dr Gillani raised the issue of risk.

[259] Her evidence was supported by the evidence of Dr Willocks and Marion Gillan, a midwife.

[260] Dr Willocks latterly attended a number of clinics at which the pursuer was present. She had not noted in the medical records when she was in attendance, that the pursuer had raised the issue of risks nor any concern about the size of the baby and her ability to deliver. Her position was that if such had been raised she would have noted this as she had always been thorough in the way she had taken notes.

[261] Marion Gillan had been present on many of the occasions when the pursuer attended at the outpatient clinic. She could remember no occasion when she had raised concerns about the size of the baby or risks in vaginal delivery. I accepted both of the witnesses as credible and reliable.

[262] For the foregoing reasons the pursuer's case under this branch must fail.

[263] I do not require, given my above decision, to deal with the submissions made by Mr MacAulay relative to the expressing of concerns being synonymous in this context with asking about risk, however, given submissions were made I would intend to deal with this issue. It is my view that there is a material difference between expressing concern and specifically raising the question of risks. To merely say that one had concerns about one's ability to deliver vaginally would not in my opinion engage the duty to fully explain all the risks involved in vaginal delivery. It is in my view only where the patient asks questions specifically related to the risks involved in a particular course of treatment i.e. in this case vaginal delivery that the duty would be engaged.

CAUSATION

[264] Although I am not required to go on to consider causation given I have held that the pursuer has not established any breach of duty in terms of either branch of her case based on lack of informal consent I was addressed thereon and I therefore deal with the submissions. I now turn to the question of what would have been the consequences of the pursuer being advised as to the risks of shoulder dystocia should she proceed to vaginal delivery. I have already said that the real risk of grave consequences arising should shoulder dystocia occur were very small indeed. Given the very small risks the first question must be for the Court: Has the pursuer established on the basis of the "But For" Test, a link between the failure to advise her of said risks and damage to the child. Or to put the matter another way, has the pursuer established that had she been advised of the said risks she would have chosen a caesarean section and thus avoided the damage to the child?

[265] The evidence in relation to the above is in fairly short compass. It is as follows:

"If you had been told there was a risk of shoulder dystocia, what would your reaction have been? - I think I would have wanted her to explain to me what that meant and what the possible risks of the outcomes could be, and if it was a significant risk to me, as it was, I would have asked her to perform a caesarean section.

Now, during the, the time that you spent in, in hospital, up until the time Sam was delivered, if at any stage you had been offered a caesarean section, what would your attitude have been? - I would have bit her hand off for it."

[266] Despite what could be described as the pursuer's definitive answers to the above questions I believe her evidence has to be looked at in a little more detail before holding that the "But For" test has been satisfied. The pursuer's answers have to be seen in the light of her knowing that had she had a caesarean section then Sam would have been born a healthy baby. It could be said therefore, that she was bound to answer the said questions in the way that she did. At least at an unconscious level it could be said that she was altering her position in her evidence and that would not have been her position at the time.

[267] I believe that in these circumstances I have to look at the matter in a little more depth and see whether there are any factors that can be said either to negate or support the position that the pursuer has expressed in her evidence.

The factors that point against her opting for a caesarean section even had she known of the risks of shoulder dystocia are:

1. The minimal risk of an adverse outcome from shoulder dystocia.

2. The risks of a caesarean section which would have been explained to her as part of the overall picture.

3. Dr McLellan would have remained of the view that she should proceed to try to deliver vaginally and would have continued to put that view to her.

4. Her position that she was not arrogant enough to demand a caesarean section, from which it must be taken that she would have had full regard to the whole views as expressed by Dr McLellan (page 24 of her transcript). I regard these factors as powerful evidence pointing towards a conclusion that had she been aware of the risks of shoulder dystocia she would nevertheless have proceeded to attempt vaginal delivery I am unable to identify any factors which would point towards her not adopting that course. I accordingly do not accept her evidence that she would have had a caesarean section and she accordingly fails the "But For" test.

[268] I have in the first place when considering causation considered the "But For" Test. Although I have held that she has failed the "But For" Test I require to consider the decision of the House of Lords in Chester v Afshar. Lord Hope of Craighead in his speech at paragraphs [86] and [87] says the following:

"[86] I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risks is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.

[87] To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case."

In my view the decision in this case would have been of no assistance to the pursuer. The circumstances in the case are odd and the decision is very much fact specific. The pursuer is not in the same position as the plaintiff in Chester v Afshar.

DECISION

[269] For the foregoing reasons I am not satisfied that there was any negligence and accordingly the pursuer must fail.


[270]
Finally I would wish to thank both senior counsel for their very helpful written and oral submissions.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH104.html