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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lennie (A Child) v Royal Victoria Infirmary & Associated Hospitals NHS Trust  EWCA Civ 975 (14 June 2006)
Cite as:  EWCA Civ 975
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE_UPON_TYNE DISTRICT REGISTRY
His Honour Judge Langan QC
Quayside, Newcastle upon Tyne
B e f o r e :
LORD JUSTICE BROOKE
(VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LORD JUSTICE WALLER
| SONTINO LENNIE
(A Child suing by his Litigation Friend Lisa Lennie)
|- and -
|ROYAL VICTORIA INFIRMARY AND ASSOCIATED HOSPITALS NHS TRUST
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR DAVID HART QC and MR JEREMY HYAM for the Respondents
Crown Copyright ©
LORD JUSTICE BROOKE :
"Per abdomen 0/5.
Cervix fully dilated.
Right occipital transverse at spines.
Easy application of blades (anterior) wandering/posterior direct.
No rotation of head, although blades rotated x 2."
(i) Professor Thornton's explanation that this fetus may have been a tight fit in his mother's pelvis and more resistant to rotation was never challenged in cross-examination at the trial;
(ii) his explanation that Dr. Wood may have been using forceps that had a larger than normal separation at the tips was similarly never challenged in cross-examination;
(iii) it was never suggested to him that his other answer, that he did not really know why the forceps had slipped, was tantamount to an admission of negligence. Mr. Johnson's evidence at the trial tended in the same way as Professor Thornton's;
(iv) because the defendants were never put on notice that the claimant's case would be put in this way they did not muster any further evidence that they might otherwise have wished to adduce in order to rebut it.
(i) the doctor knew from the fetal blood sample that the baby was in excellent condition;
(ii) bradycardia was common after an epidural injection;
(iii) so long as the bradycardia returned to normal as it did, it was reasonable to continue the syntocinon;
(iv) the bradycardia did return to normal.
"Q. All this blood sample could show is whether or not at the time the sample was taken the fetus was not acidotic?
A. No, it can tell us quite a bit more than that yes. No, we have the - we know the level of the PH so we know whether it was on the borderline of acidotic or not abnormal at all.
Q. Well that is just what I put to you?
A. We know the base excess, so we have in the present case a result that is not even remotely borderline, an absolutely normal result which tells us something about the fetus at that time, and unless major changes occur is likely to be telling us something about the fetus in the future."
"It is generally believed that these transient bradycardias that occur after epidurals are caused by... low blood pressure in the mother. However, it is also well recognised that sometimes that low blood pressure is not detected by the doctors or midwives looking after the patient... unless the patient has a sort of intra-arterial catheter measuring their... blood pressure continuously. It is only measured... every 5 minutes. So it is perfectly possible, and I think likely in fact, that there was a drop in maternal blood pressure which caused that bradycardia... I am as near certain as I can be of anything the fact that it was not detected does not rule it out."
I observe that in fact the blood pressure was only being taken every 15 minutes and that there was no reading between 18.15 and 18.30.
"It depends a little bit whether that blood pressure was taken after that left lateral. If it was then of course the turning her has done the trick which it was intended to do of getting her blood pressure back to normal. That blood pressure is indeed normal."
"All the evidence was that this was a completely healthy fetus immediately prior to that single prolonged deceleration which immediately followed an epidural top up. They turned her onto her side, her blood pressure was adequate and the fetal heart rate recovered at that point, when Dr. Esen came back to see her, to normal."
"Turned onto left lateral - then you take the blood pressure."
" Professor Thornton's evidence was to the effect that he did not regard the last sentence [of the textbook passage put to him] as universally prescriptive ."
You take every case on its own.
"It was put to Dr. Thornton that at any rate by 18.40 when the rate of contractions began to increase and Dr. Esen had not yet arrived, the syntocinon should have been stopped. He disagreed, for reasons which were helpfully summarised in Mr. Hart's written submissions at the end of the hearing:
'(i) the doctor's knew the baby was in excellent condition [from the fetal blood sample at 17.33];
(ii) bradycardia following epidural is common;
(iii) so long as the bradycardia returns to normal it was reasonable to continue the syntocinon;
(iv) the bradycardia did return to normal.'
 I have to say that I found Professor Thornton's approach convincing. I accept it, but not without scrutiny of each of its stages. As to (i), I simply underline the fact that the fetal blood sample was a recent one, taken within the hour which proceeded the bradycardia. I shall have to deal somewhat longer on (ii). It is accepted by Mr. Johnson that fetal bradycardia does frequently follow upon epidural, but he points out that the bradycardia could reasonably be attributed to the epidural only if it were combined with a fall in the mother's blood pressure Mrs. Lennie's blood pressure was recorded between 18.20 and 18.30, but there is nothing to suggest that the reading (120/60) was other than normal. It is, I think, common ground that the proper response to bradycardia following epidural is to place the mother on her left side and await a recovery. This is what occurred here, the fetal heart-rate did recover and so Professor Thornton's points (iii) and (iv) are made good. That cannot, however, be an end of the matter: because, even if each stage of his reasoning process thus far is unimpeachable, there may have been other signposts pointing to the need to discontinue the syntocinon.
 I do not think that there were any such signposts. Given the movement of Mrs. Lennie which was involved in the administration of the epidural, the likelihood is that the state of the tocograph around 18.28 was attributable to such movement. Anything that happened thereafter was, as I understood Mr. Johnson's evidence, confirmatory of an error already made rather than the provision of a warning belatedly to correct that error."
The fatal dose of syntocinon has not been established. Symptoms and consequences of over dosage are mentioned under 'side effects.' In addition, as a result of uterine over-stimulation placental abruption and/or anabiotic fluid embolism have been reported side effects. When oxytocin is used by intravenous injection for the induction or enhancement of labour its administration at too high a dosage results in uterine over-stimulation which may cause fetal distress, asphyxia and death."
"failed to turn down or switch off syntocinon at 17.00 hours to allow labour to progress at a time when the cervix was 6 centimetres dilated and full dilatation would have been affected in an hour or so."
"Had syntocinon been withdrawn uterine activity would have settled down. It is highly unlikely that a multigravida patient who has previously given birth to a nine pound infant, and who in the present pregnancy has reached seven centimetres dilatation, is going to stop contracting. The probability is that she would have proceeded to full dilatation without syntocinon with a more coordinate uterine activity and there would have been no damage to the baby. If in fact there had been no further progress in dilatation the decision would have been taken to carry out a caesarean section on the grounds of fetal distress, as indeed was the case.
"I would say that the probability is that the labour would have progressed uneventfully had they turned the syntocinon off. Mrs. Lennie had already given birth to a baby weighing 9 pounds, however it was not the purpose of obstetric practice to use syntocinon in a multigravida patient to force a big baby out. If in fact the labour does not progress despite reasonable uterine contractions then they could and should have done a caesarean section."
"It is not the purpose of obstetrics to squeeze a baby out like toothpaste. Labour takes a certain amount of time and unless there is fetal distress or anything else it does not matter if it takes six hours or ten hours really."
LORD JUSTICE WALLER:
MASTER OF THE ROLLS: