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Cite as: [2005] ScotCS CSIH_10, [2005] CSIH 10

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Gerrard & Ors v. The Royal Infirmary Of Edinburgh NHS Trust [2005] ScotCS CSIH_10 (27 January 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Macfadyen

Lady Cosgrove

 

 

 

 

 

[2005CSIH10]

A/120/01

OPINION OF THE COURT

delivered by LORD OSBORNE

in

RECLAIMING MOTION

by

(FIRST) MARGARET BROWN GERRARD (A.P.) and (SECOND) RAYMOND ALEXANDER WADDELL GERRARD (A.P.)

Pursuers and Reclaimers;

against

THE ROYAL INFIRMARY OF EDINBURGH N.H.S. TRUST

Defenders and Respondents:

_______

 

 

Act: Stewart, Q.C., Summers; Messrs Campbell Smith, W.S. (Pursuers and Reclaimers)

Alt: J. Campbell, Q.C., Ross; Scottish Health Service CLO (Defenders and Respondents)

27 January 2005

The background circumstances

[1]      In late 1995, the first named pursuer, who was then aged 28 years, became pregnant. She attended the ante-natal clinic at the Simpson Memorial Maternity Pavilion on 3 January 1996 when it was established that she was expecting twins. As her pregnancy progressed, the first named pursuer was examined on a number of occasions. This pregnancy was her sixth, she having had a miscarriage in 1987 and four normal deliveries in 1987, 1988, 1991 and 1993.

[2]     
By 22 June 1996, the first named pursuer was 36 weeks pregnant. Following experiencing bleeding when passing urine, she was admitted to hospital. The first twin was then noted to be in a longitudinal lie with a cephalic presentation. The second twin was noted to be in an oblique breech presentation. The condition of both twins was noted to be satisfactory at that stage. Prior to 22 June 1996, it appears that the pursuers had received conflicting advice about the appropriate mode of delivery for the twins. In particular, they had heard differing views about the merits of attempting a normal vaginal delivery, as opposed to an elective Caesarean section. On 22 June 1996 the pursuers met Dr R. M. Camille Busby-Earle, the senior registrar involved with the first named pursuer. She undertook to have these matters clarified by Professor Calder, the consultant responsible for the first named pursuer. Arrangements were made for him to see the first named pursuer on 23 June 1996. On that date Professor Calder met the pursuers at about 4.00 pm. He then explained to them that vaginal delivery was in the best interests of both mother and babies, unless any complications were to arise. Professor Calder's recommendation of vaginal delivery was fully supported by Dr Busby-Earle.

[3]     
At 5.50 pm on 23 June 1996, the registrar on duty, Dr David Howe, noted that the first named pursuer's cervix was dilated to 5 cms, with bulging forewaters, and that the vertex of the first twin was about 1 cm above the ischial spines. At 6.30 pm the first named pursuer was transferred to the labour ward, where she was noted to be in early labour. At that stage the twins' heart rates were noted as 130 and 118 per minute respectively. At 6.40 pm a controlled artificial rupture of the membranes was carried out by Dr Busby-Earle. Thereafter she instructed the midwifery staff to allow the first named pursuer to progress in labour. She herself had intended to re-assess the condition of the first named pursuer after 4 hours, unless the first named pursuer was expulsive prior to that. The expulsive stage is reached when the baby's head is descending into the vagina and the mother experiences an overwhelming desire to push, heralding the arrival of the baby. Dr Busby-Earle requested the midwifery staff to inform her if the dilatation of the cervix reached 9 cms or more, as she wished to be present at the birth. At 7.00 pm Dr Busby-Earle checked the cardiotocographs, records of the foetal heart rates, and was content with the results.

[4]     
At 7.51 pm, the midwifery sister involved noted that the vertex of the first baby to be delivered was visible, there having been what was described as a very fast second stage of labour. In consequence, Dr Busby-Earle was summoned, but before she could arrive, the first twin was delivered by the midwifery sister at 7.52 pm. The delivery was normal, unassisted and head-first. Dr Busby-Earle arrived in the labour ward at 7.53 pm, when she examined the first named pursuer's abdomen. The foetal heart rate of the second twin was being monitored by means of an abdominal transducer, a device consisting in a disc of about 3 inches in diameter, attached by wires to monitoring machinery, and retained in position on the mother's abdomen by a belt. Dr Busby-Earle found difficulty in deciphering the lie and presentation of the second twin by external palpation so, at 7.58 pm, she proceeded to carry out a vaginal examination. The cervix was found to be dilated to 8 cms. Above the cervix, she felt firstly, a cleft, which initially gave her the impression of buttocks and therefore of a breech presentation. However, she also felt what she perceived as fingers and, next to the fingers, what seemed like an upper arm. She then utilised an ultrasound scanner to perform a scan of the abdomen. She was able to see the baby's head on the scan, but could not feel the head with her hand. The scan showed that the head was positioned over the cervix, but the lie was about 5 or 10 degrees off centre. Dr Busby-Earle formed the view that that presenting part of the baby was near to, but above, the pelvic brim. The presenting part of the baby was just above the cervix, near enough for Dr Busby-Earle to feel it with a finger, but not protruding from, nor engaged or impacted in, the cervix. Dr Busby-Earle noted that there had been no palpable forewaters at the time of her examination, so she assumed that the membranes had been ruptured. She was unable to feel uterine contractions.

[5]     
In the light of her findings from the vaginal examination and the ultrasound scan which she had undertaken, Dr Busby-Earle formed the view that the cleft which she had felt was an armpit. She ultimately concluded at about 8.00 pm that the baby's presentation was not a breech presentation, but a shoulder presentation, with the baby's head only 5 or 10 degrees away from the longitudinal position. She considered that such a presentation was quite uncommon.

[6]     
Bearing in mind that the second twin's head appeared to be only 5 or 10 degrees off-line, Dr Busby-Earle anticipated that some uterine contractions might dilate the cervix and assist in tipping the baby's head into the correct position in the pelvis. She also hoped that gentle manipulation of the baby's fingers by her own fingers might result in the baby's hand and arm being automatically withdrawn, assisting the head to slip into the right position. Accordingly, on diagnosing the shoulder presentation at 8.00 pm Dr Busby-Earle instructed the commencement of a syntocinon drip, to encourage contractions. She chose a dilute infusion of 3 mls per hour, because the first named pursuer had, by then, given birth to 5 children and her uterus might respond more vigorously than the uterus of a prima gravida. At 8.03 pm, the syntocinon infusion was increased to 12 mls per hour, at Dr Busby-Earle's request.

[7]     
At 8.06 pm the foetal heart rate of the baby was noted to be 120 per minute and the first named pursuer to be actively pushing. However, by 8.08 pm, about 8 minutes after the syntocinon administration had started, there had been no uterine activity, no cervical dilation, and no correction of the presentation of the baby. Also, at that stage, the foetal heart rate was noted as being difficult to discern. It was appreciated by Dr Busby-Earle that that difficulty might indicate foetal distress; in any event, there could be no reassurance concerning the baby's condition. At that stage, Dr Busby-Earle decided that, in the light of all these factors, taken together with the time lapse of 16 minutes since the birth of the first twin, a Caesarean section was necessary. Accordingly she instructed that the syntocinon drip should be switched off. She continued to keep her right hand in the vagina of the first named pursuer, to avoid problems with the umbilical chord. Her hand remained there while the first named pursuer was being transferred to the operating theatre. Immediate instructions were given to mobilise the operating theatre staff. At 8.10 pm the first named pursuer, along with Dr Busby-Earle reached the anaesthetic room. Professor Calder was then called on the instructions of Dr Busby-Earle. That action was taken for two reasons. First, it was considered that Professor Calder might have decided that a procedure known as internal version was feasible. Such a manoeuvre may be carried out where the membranes are intact, or recently ruptured. A general anaesthetic is administered and the hand of the practitioner inserted into the uterus so that the baby may be manipulated to allow for vaginal delivery. Secondly, it was the practice in the hospital concerned to inform the consultant in charge whenever a patient was being taken to the operating theatre for a Caesarean section. Dr Busby-Earle had not called for Professor Calder at any earlier stage, since, prior to her decision to proceed with a Caesarean section, on the basis of what had been seen on the ultrasound scan and in the light of the monitoring of the foetal heart rate she had considered that there had been no cause for alarm and that matters had been well within her competence and capability to handle. Dr Busby-Earle had herself never performed internal version, which was a procedure that only older and more experienced practitioners might be capable of undertaking, but not the younger generation of obstetricians, such as herself.

[8]     
Professor Calder arrived in the operating theatre promptly. Dr Busby-Earle then removed her hand from the first named pursuer's vagina, after which Professor Calder carried out a vaginal examination. He then wished to re-examine the first named pursuer under general anaesthetic. The first named pursuer was accordingly anaesthetised. Following a further examination, Professor Calder agreed that a Caesarean section was necessary. That operation was performed by Dr Busby-Earle, assisted by Professor Calder and a senior house officer. The second twin was delivered at 8.31 pm, approximately 23 minutes after Dr Busby-Earle's decision, at about 8.08 pm, to take the first named pursuer to the operating theatre for Caesarean section. The findings at operation were that the presentation had indeed been a compound presentation, the presenting part being a shoulder and a nearby hand. It was also noted that there had been a single placenta. The baby had been easily delivered in the course of the operation, that is to say, the baby had been easy to remove from the mother. He was not stuck or impacted. However, unfortunately, when the second twin was delivered, he was in poor condition. After resuscitation and two days spent on a life-support machine he died. Post mortem examination showed that he had suffered asphyxia during labour and delivery.

[9]     
Against the foregoing background, the pursuers raised the present action seeking damages on the basis of an allegation of fault and negligence on the part of Dr Busby-Earle. It was a matter of agreement between the parties that, in the event of the defenders being found liable to make reparation to the pursuers in respect of the death of the second twin, the amount of each pursuer's loss, injury and damage would be £12,500, inclusive of interest to the date of the agreement. In due course a proof before answer was conducted, in which evidence was led on behalf of the pursuers from Dr Busby-Earle, Dr A. F. John Atkins, a consultant obstetrician and gynaecologist, and Dr Sunil Sinha, a consultant paediatrician specialising in neo-natal care. Evidence was led on behalf of the defenders from Dr Alistair W. F. Miller, a consultant obstetrician and gynaecologist, and Professor Neil McIntosh, a professor of child life and health, specialising in neo-natology. Following the proof, the Lord Ordinary repelled the pursuers' first plea-in-law, sustained the defenders' first, second and third pleas-in-law, and granted decree of absolvitor. Against that decision, the pursuers have reclaimed to this court.

[10]     
In order to render comprehensible what follows at a later stage of this opinion, it is appropriate now to summarise briefly the approach of the Lord Ordinary to the case. She considered that two main issues were in controversy: (1) whether there had been professional negligence on the part of Dr Busby-Earle; if so (2) whether that negligence had caused or contributed to the death of the second twin. The Lord Ordinary considered that an important area of contention was the precise position of the second twin in relation to the cervix and to the bony pelvis at the material time. She considered that Dr Busby-Earle was particularly well qualified and well positioned to describe that position. On the basis of her evidence, which was not challenged at the proof on this point, the Lord Ordinary found it established that, at the time of Dr Busby-Earle's diagnosis of a shoulder presentation and her decision to administer syntocinon, the presenting part of the baby was near to but above the pelvic brim. The presenting part was not applied to nor engaged in the cervix, nor impacted in the bony pelvis. The Lord Ordinary considered that another important matter was the timing of the decision on the part of Dr Busby-Earle to proceed to a Caesarean section. Once again, on this matter the Lord Ordinary accepted her evidence, finding it established that it was at 8.08 pm, when the syntocinon appeared to be having no effect and the foetal heart rate became difficult to detect, that Dr Busby-Earle made the decision to proceed to Caesarean section. By 8.10 pm, the first named pursuer was being physically transported to the anaesthetic room.

[11]     
Turning to the matter of professional negligence itself, the Lord Ordinary proceeded upon the basis of the test formulated by Lord President Clyde in Hunter v Hanley 1955 SC 200 at pages 204-206, subsequently approved in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, at page 638. The Lord Ordinary was faced with a contention on behalf of the pursuers that the circumstances faced by Dr Busby-Earle at 8.00 pm on 23 June 1996 fell to be treated as an indication for immediate Caesarean section, with all appropriate steps being taken there and then without delay. After consideration of the evidence, the conclusion of the Lord Ordinary was that she was not satisfied that such a practice had been established. She considered that both Dr Atkins and Dr Miller were of the view that internal version was a possible alternative to Caesarean section which an obstetrician faced with the rather unusual presentation of the second twin would have been entitled to consider and explore. Having regard to the training and experience of Dr Busby-Earle, it was accepted that she would have been entitled to call upon a more experienced senior colleague in that regard. In all these circumstances the Lord Ordinary felt unable to accept that there was a usual and normal practice that an obstetrician should have treated the circumstances prevailing at 8.00 pm as an indication for an immediate Caesarean section. In the opinion of the Lord Ordinary, it followed from that conclusion that the first prerequisite of professional negligence set out in Hunter v Hanley had not been satisfied and that the defenders had to be assoilzied.

[12]      If, contrary to the view of the Lord Ordinary, it were to be taken that there had been a usual and normal practice applicable to the circumstances from which Dr Busby-Earle had departed, the Lord Ordinary concluded that she was not satisfied that the evidence established that the course which she had adopted was one which no ordinarily competent obstetrician and gynaecologist, acting with reasonable care and skill, would, in the particular circumstances, have adopted. In connection with this issue in the case, the Lord Ordinary states that, having carefully considered the evidence of Dr Atkins and Dr Miller, she concluded that Dr Atkins' opinion was less persuasive that Dr Miller's for two reasons. First, Dr Atkins, she considered, had based his views upon his perception of how low in the pelvic cavity the baby must have been. On that matter his perception differed from the evidence of Dr Busby-Earle, which was not challenged. Secondly, Dr Atkins had been unaware of the full circumstances of the delivery of the second twin until he heard Dr Busby-Earle's evidence in court on that matter. Yet he had committed himself to an opinion prior to that stage. The Lord Ordinary considered that Dr Atkins' reports had given rise at least to a suspicion that he might have formed a certain view on the basis of necessarily incomplete and possibly inaccurate factual material and that his earlier view might have coloured any subsequent assessment of the case. Against this background, the Lord Ordinary preferred the evidence of Dr Miller. In the whole circumstances, in view of Dr Miller's evidence and the Lord Ordinary's reservations concerning Dr Atkins' evidence, she was not persuaded that the course of action adopted by Dr Busby-Earle was one which no ordinarily competent senior registrar in obstetrics, acting with reasonable care and skill, would have adopted. For that reason also, the Lord Ordinary considered that the defenders were entitled to absolvitor.

[13]     
Further, the Lord Ordinary noted that neither Dr Atkins nor Dr Miller had actually stated in evidence that the course of action taken by Dr Busby-Earle between 8.00 pm and 8.08 pm was one which no ordinarily competent senior registrar in obstetrics, acting with reasonable care and skill, would have taken. Dr Miller had categorically refuted such a suggestion. Dr Atkins had not gone so far as to categorise Dr Busby-Earle's acts of omissions as ones which no ordinarily competent registrar in obstetrics and gynaecology, exercising reasonable care and skill, would have carried out or permitted to occur. Accordingly, taking Dr Atkins' evidence at its highest, the Lord Ordinary considered that the test laid down in Hunter v Hanley had not been satisfied.

[14]     
Turning to the issue of causation, the Lord Ordinary noted that the medical witnesses were unable to explain what had caused the prolonged partial asphyxia suffered by the second twin. However, she concluded that three aspects of the oxygen starvation had been established. First, although the second twin's foetal distress became manifest to medical staff only at 8.08 pm, the process of prolonged partial asphyxia probably commenced at least 25 minutes before the birth of the second twin at 8.31 pm. Secondly, whatever mechanism had caused the partial asphyxia, she concluded that the administration of the dilute infusion of syntocinon had not caused or contributed to that asphyxia. Thirdly, had the second twin been delivered by 8.24 pm, or at any time earlier, he would have been able to live what was described as "some sort of existence independently of a ventilator". Accordingly, a 7 minute delay in the delivery of the second twin had caused, or significantly contributed to, his death. Against that background, it had been submitted to the Lord Ordinary that, had Dr Busby-Earle's decision to proceed to Caesarean section been made immediately upon her diagnosis of the shoulder presentation, then, on a balance of probabilities, the baby would have been delivered at least 7 minutes earlier, and would have survived. In response to that submission, the Lord Ordinary noted that, if the decision to proceed to a Caesarean section had been made at 8.00 pm, at that time there had been no apparent cause for alarm or concern. In that situation, the Lord Ordinary held that she was not satisfied that a decision taken in a non-emergency situation at 8.00 pm would have been followed by the same sequence or timing of events as actually occurred following the decision taken in a situation of emergency at 8.08 pm, once an alarm had been raised in the form of difficulty in detecting the foetal heart rate. She had thus not been satisfied that a decision to proceed to a Caesarean section taken at 8.00 pm would, on a balance of probabilities, have resulted in the delivery of the second twin at 8.24 pm or earlier, thus avoiding his death. The Lord Ordinary therefore concluded that, for this reason also, the defenders were entitled to absolvitor.

The grounds of appeal

[15]     
When this case came before us in the summar roll, at the outset, a motion was made on behalf of the pursuers for amendment of the grounds of appeal. This motion was opposed on behalf of the defenders and respondents. After hearing a debate on the issue of amendment, we decided that the pursuers' motion should be granted. As a result of that decision, the grounds of appeal for the pursuers and reclaimers then stood in the following form:

"(1) The pursuers argued that the registrar was negligent in failing to order an immediate Caesarean section when the baby's lie was ascertained. The registrar chose to wait in the hope that the baby's lie would alter thus making ordinary delivery possible. The pursuers' case was that (i) this was negligent since the course was unlikely to lead to any change in the baby's lie and that (ii) the negligence caused the pursuers' loss since the baby suffered brain damage during the period of delay. Her Ladyship held (paragraph 82) that because there was an alternative non-negligent method of delivery namely podalic version, the pursuers must fail. She held that because the registrar could have called for a more experienced colleague to perform podalic version it had not been shown that her failure to order Caesarean section was negligent. This approach is erroneous. The evidence was that the registrar was not competent to perform podalic version. There was no evidence that she considered calling an experienced colleague. The choice the registrar in reality made was between proceeding with natural delivery or calling for Caesarean section. In that circumstance it is irrelevant that a theoretical non-negligent alternative would, if followed, have led to the same brain damage. Give then that the course of action which on the balance of probabilities she would have followed had she appreciated that natural delivery was not a viable alternative was Caesarean section, the true question is whether she was negligent to wait in the hope that natural delivery could be achieved.

(2) Her Ladyship further held (paragraph 88) that the registrar's decision to delay was not negligent. She so held in spite of the fact that the textbooks provided to the court indicated that in the case of a baby with a shoulder presentation the proper course was to call for Caesarean section. This was also the evidence of Dr Atkin (sic) the pursuers' expert. Her Ladyship acknowledged that the registrar's decision to wait was 'not a textbook response' but failed to identify any feature of the case that invalidated the guidance provided by the textbooks. The defenders' expert, Dr Miller, stated that the course adopted by the registrar stood at best a 50:50 chance of succeeding. He therefore was of the view that the course adopted was not likely to succeed. It was common ground that Caesarean section was a low risk operative procedure. It is respectfully submitted that against this background the decision to delay was professionally negligent. The Lord Ordinary was not entitled to find the opinion of Dr Miller persuasive in relation to the question of negligence.

(3) Her Ladyship preferred the evidence of Dr Miller over Dr Atkin (sic). This was founded on the 'suspicion' that his views had been coloured by a misconception of the facts when he wrote his first report (paragraph 91). There was no legitimate basis for this 'suspicion'. In his evidence Dr Atkin (sic) explained what he meant by the phrase 'a shoulder presentation with a prolapsed arm'. Dr Atkin (sic) in any event sat in court and listened to the registrar's evidence before giving his own evidence. When he gave his evidence he indicated that he had heard nothing which led him to alter his opinion. He stood by his report's conclusions. The phraseology used in his report does not provide a legitimate basis for rejecting his evidence in favour of Dr Miller's. Dr Atkin's (sic) views are those supported by relevant published opinion.

(4) Her Ladyship held that Dr Atkin (sic) did not give evidence that the registrar had breached the standard of care laid down in Hunter v Hanley (paragraph 92). Dr Atkin's (sic) was asked whether the registrar 'in performance of her duty of reasonable care ... the duty to exercise the care and skill of a senior registrar in obstetrics and gynaecology ... ought to have performed a Caesarean section as soon as possible ... at 8.00 o'clock or thereabouts'. Dr Atkin's (sic) answered 'Yes' (see volume 3, pages 246-248). It is submitted that this question coincides with the test in Hunter v Hanley. Separatim the Lord Ordinary took the point about failing to satisfy the Hunter v Hanley test ex proprio motu. It was not within her power to do so. The point was waived by the defenders.

(5) Her Ladyship held (paragraph 98) that even if the registrar had ordered Caesarean section at 8.00 pm the pursuers failed to prove that the delay which caused the relevant brain damage would have been obviated. The pursuers' evidence (sic) proceeds on the basis that the time it took to get the baby to theatre would have been the same as it took when the decision was eventually made at 8.08. The defenders did not suggest that the trip to the theatre would have been more leisurely had it commenced at 8.00. There is no evidence upon which to conclude that the time lag would have been materially different. Dr Miller did not give evidence that there were any reasons which would have meant that the trip would have been slower. No hospital personnel gave evidence that there were any operational reasons to slow down a trip commenced at 8.00. The onus lies on the defenders to lead evidence to establish that the time taken for the trip commenced at 8.08 would have been different had the trip commenced at 8.00. In the absence of such her Ladyship's reasoning is speculative."

Submissions

Junior counsel for the pursuers and reclaimers

[16]     
Junior counsel for the pursuers and reclaimers commenced by outlining his position. As regards grounds of appeal (2) and (3), the contention was that the Lord Ordinary was bound to find that Dr Atkins' opinion coincided with usual practice. Also she was bound to find that no circumstances had been demonstrated in which Dr Busby-Earle's deviation from that practice could be said to be justified. In as much as Dr Miller sought to justify Dr Busby-Earle's approach and in as much as the Lord Ordinary, in paragraphs 90 and 91 of her opinion, preferred Dr Miller over Dr Atkins, her decision could not be justified for several reasons: (1) Dr Miller's opinion was, on his own admission, unsupported by any literature and no other professional opinion was adduced by him in support of his view, whereas Dr Atkins' opinion coincided precisely with the published opinion; (2) the Lord Ordinary's criticism of the loose wording employed by Dr Atkins (paragraph 90) in his report in the light of the foregoing was a matter of little moment. In any event, he explained in his evidence why he had used those terms. It was clear what the true position was and that he understood it; (3) Dr Miller's evidence was marred by material misapprehensions of primary facts and internal inconsistencies. Those flaws should have led the Lord Ordinary to reject his evidence and accept that of Dr Atkins. There were only two competing bodies of evidence. There was no middle ground. Accordingly, properly directed, the Lord Ordinary ought to have held that the test of medical negligence had been established. In this connection, it was plain that the test put to Dr Atkins coincided with the test set forth in Hunter v Hanley.

[17]     
The evidence that it had taken 23 minutes from removal from the delivery room to delivery in the theatre was the only evidence relating to time lapsing between those two points. In the absence of any other evidence to suggest that it might have been slower in other circumstances and, if so, by how much, the Lord Ordinary was not entitled to conclude that it would have been a materially slower trip, if it had started earlier in a non-emergency context.

[18]     
On the basis of the pursuers' evidence, which should have been accepted, Caesarean section was the primary method of addressing shoulder presentation. There was evidence that Dr Busby-Earle was competent to perform Caesarean section, but that she did not consider that it was the correct response to shoulder presentation. The fact that she might have appreciated that internal version was an alternative and asked for help did not make failure to adopt Caesarean section at the appropriate time, 8.00 pm, non-negligent. The moment she found that shoulder presentation existed, she should have decided to proceed with Caesarean section. In any event, had Dr Busby-Earle decided at 8.00 pm to seek assistance, the only evidence regarding that was from Dr Atkins, who said it would have led to a move to the theatre and a request for help. There should have been such a journey, in any event.

[19]     
Junior counsel for the pursuers next proceeded to address us upon the details of the evidence, including medical textbooks to some of which reference had been made by the witnesses. He emphasised what he contended was the very limited place which internal version had in the treatment of an oblique lie in labour. In the case of the pregnancy under consideration, there had been a single sac containing both twins. The window of opportunity for internal version in relation to the second twin ran from the rupture of that sac. Looking at the literature on the subject, it could be said that given the lie of the second twin, Caesarean section was the recommended course. The evidence of Dr Atkins was in conformity with published opinion. In this particular connection, reference was made to passages in Dr Atkins' evidence between pages 205 and 207 and between pages 280 and 286 of the transcript. It was Dr Atkins' view that the possibility of correction of the position of the second twin was virtually zero. A number of references were made to the evidence of Dr Busby-Earle, which, counsel contended, demonstrated that she did not know what to do in relation to the shoulder presentation which she had discerned. Counsel for the pursuers and reclaimers recognised that Dr Miller had expressed the view that contractions could have the effect of nudging a baby's head sideways. However, it was submitted that Dr Miller's position was not in accordance with the medical literature to which reference had been made. It was also submitted that, within Dr Miller's evidence, there were certain evident internal contradictions. He had adopted an unrealistic approach to the medical literature referred to. It was evident that Dr Miller's evidence had been designed to suggest that Dr Busby-Earle was in a particular and unique set of circumstances, which she had addressed in a reasonable way. That was in conflict with the medical literature. It was also contended that Dr Miller appeared to have "reconstructed" Dr Busby-Earle's reading ex post facto, in order to attempt to justify what she had done. There was no proper factual basis for that approach. However, in the present case the court had to be concerned, not so much with what Dr Busby-Earle had done in the vital period, but rather with the fact that she had occupied that time between 7.58 and 8.08 pm in doing something, but not doing something else, namely Caesarean section. It was accepted that a clinician did not have the luxury of ascertaining facts absolutely. Judgements had to be made and situations of risk had to be avoided. That constituted a reason why accepted practice should be followed.

[20]     
A further criticism could be made of Dr Miller's evidence in respect that his opinion was silent on certain crucial matters. In particular, he did not deal with the issue of the withdrawal of the baby's hand, which was central to Dr Busby-Earle's original scheme for delivery. Dr Atkins, however, did address that problem at page 232 of the transcript. He considered that the withdrawal of the arm would have exacerbated the situation of the shoulder. Once again, that was a matter not dealt with by Dr Miller. Dr Atkins' evidence was consistent with published medical opinion as regards the practice to be followed in circumstances such as those which occurred. To the extent that the Lord Ordinary adopted Dr Miller's opinion, she adopted one which was silent concerning the usual practice and silent regarding whether Dr Busby-Earle had departed from it. It was submitted that the Lord Ordinary had erred in failing to make a finding regarding the usual practice. Paragraph 90 of her opinion was important, since it was there that she explained her preference for the evidence of Dr Miller over that of Dr Atkins. The first reason which she had given there possessed no force, since nothing turned on the issue in question. The Lord Ordinary had erred in finding the opinion of Dr Miller persuasive in relation to the question of whether Dr Busby-Earle's deviation from usual practice was consistent with the skill and care to be expected of a senior registrar in obstetrics of ordinary competence. The evidence supported the proposition that usual practice in the circumstances of a shoulder presentation, such as that diagnosed by Dr Busby-Earle between 7.58 and 8.00 pm was to perform an immediate Caesarean section. It was submitted that there was no body of opinion to a contrary effect. Upon the assumption that Dr Miller's evidence alone constituted such a body of opinion, it was unreasonable.

[21]     
In connection with the foregoing submission, counsel relied upon Bolitho v City and Hackney Health Authority [1998] AC 232. In that case, at page 241, Lord Browne-Wilkinson emphasised that a medical practitioner would not escape liability for negligent treatment just because he led evidence from a number of medical experts who were genuinely of opinion that the treatment given accorded with sound medical practice. It was necessary that the practice should be accepted as proper by a "responsible body of medical men". In the present case there was no body of opinion to justify Dr Busby-Earle's course of action; it was plain that Dr Busby-Earle did not appreciate what ought to have been done in the context of the presentation which she diagnosed. On a proper view of the evidence, Dr Atkins had testified that all responsible practitioners would have proceeded to Caesarean section at 8.00 pm. In connection with this part of his submissions, counsel for the pursuers and reclaimers relied on Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and the observations of Lord Scarman at pages 637-638. Reliance was also placed upon the textbook of Jackson & Powell (2002) page 63 paragraph 2.116.

[22]      The Lord Ordinary had considered the application of the appropriate test for professional negligence at paragraph 92 of her opinion. To the extent that she concluded that the wrong test had been put, she had erred. Her conclusion in that part of her opinion was formalistic and ignored the substance of what Dr Atkins had said. Furthermore, she had focused on what had been done by Dr Busby-Earle; she should have focused on what had not been done by her. In paragraph 92, the Lord Ordinary had erred by deciding an issue which she had not been asked to decide. In that respect she had misunderstood her function. In that connection reference was made to Strathclyde Regional Council v City of Glasgow District Council 1992 SLT 51. Reliance was placed in particular on the observation of Lord Justice Clerk Ross at page 54. As in that case, the Lord Ordinary here, in paragraph 92, had decided something which she had not been asked to decide.

[23]     
Counsel next turned to the issue of causation. In paragraph 98 of her opinion the Lord Ordinary had dealt with that aspect of the case. It was submitted that, as at 8.00 pm, there should have been alarm and concern over the plight of the second twin. The only evidence of the time lapsing between the decision to carry out a Caesarean section and the delivery of the second twin was that the period was 23 minutes. Had such a period commenced at 8.00 pm, the second twin would have lived. There was no dispute that that period was acceptable. Had the decision for Caesarean section been taken at 8.00 pm, the second twin would have been delivered at 8.23 pm. What the Lord Ordinary had done in paragraph 98 of her opinion was to engage in speculation as to what might have happened had a decision for Caesarean section been taken at 8.00 pm. She stated that she had not been satisfied that a decision taken in a non-emergency situation at 8.00 pm would have been followed by the same sequence or timing of events which actually occurred following the decision taken in a situation of emergency at 8.08 pm. To the extent that she had done that, she had engaged in speculation with no basis in the pleadings, the evidence or her own findings. Accordingly, the conclusion reached in paragraph 99 of her opinion was flawed.

[24]     
In paragraph 82 of her opinion, the Lord Ordinary had considered the approach of Dr Busby-Earle to a possible internal version. However, the acknowledged fact was that Dr Busby-Earle was not competent to perform internal version, nor did she call at 8.00 pm for the assistance of a senior practitioner who was. The Lord Ordinary had strayed into speculation regarding internal version and time. Looking at the evidence of Dr Busby-Earle, Dr Atkins and Dr Miller, the reality was that internal version was beside the point. At 8.08 pm a decision had been taken to undertake a Caesarean section.

Junior counsel for the defenders and respondents

[25]     
Junior counsel for the defenders and respondents began by explaining the structure of his submissions. There would be four chapters: (1) general observations on the grounds of appeal, as presented; (2) a brief outline of the applicable law; (3) the new grounds of appeal, involving an attack on the evidence of Dr Miller; and (4) the five original grounds of appeal.

[26]     
Dealing first with general observations on the appeal, it was explained that there were five in number: (i) The reclaiming motion, as presented, was less an attack on the opinion of the Lord Ordinary than an attempt to reformulate the case in a way in which it had not been presented to her. This court ought to be conscious of the fact that it had not had the benefit of hearing the evidence, or the original submissions. (ii) The reformulation of the case was particularly pronounced in the mounting of an attack of the evidence of Dr Miller. The very late introduction into the grounds of appeal of criticism of him was a reflection of the fact that hardly any attack was made on that evidence in the submissions to the Lord Ordinary. (iii) As regards extracts from medical textbooks, it was not an exaggeration to say that they had assumed a vital role in the reclaiming motion. Junior counsel for the pursuers and reclaimers had, in effect, delivered a lecture on medical practice, based on the extracts from those books. They had been portrayed as possessing the force of the Ten Commandments. It was right to contrast the prominent role now played by them with the very limited role that they had played at the proof. When the proof had started, the only extract from a medical textbook lodged was that from Dewhurst's Textbook of Obstetrics and Gynaecology for Post-Graduates, 1995. Even that had not been put to Dr Busby-Earle in examination in chief. However, after certain consultations with Dr Atkins, she had been further examined on behalf of the pursuers, cross-examined by the defenders and re-examined by the pursuers. Counsel for the pursuers had attempted to raise issues arising from Dewhurst in re-examination, but there had been an objection to that as something not arising from cross-examination. The extracts from the other four textbooks had been lodged on the last day of the evidence at proof. There had been an objection taken to that course, which was resolved after discussion, as could be seen from pages 656-688 of the transcript of the proceedings at the proof. That had happened in the course of the evidence of Dr Miller. The result was that Dr Atkins had never dealt with that material in his evidence. It was submitted that the court could not accept as evidence extracts from medical textbooks put or spoken to only by counsel. Thus the only evidence which had been given relating to these extracts had come from Dr Miller. (iv) No attempt had been made in the grounds of appeal or in submissions to challenge the Lord Ordinary's findings in fact on the critical issue of the position of the second twin. Dr Busby-Earle had given clear evidence regarding that. After she had given that evidence, there had been an adjournment to allow counsel for the pursuers to consult with Dr Atkins, who had heard her evidence. Dr Busby-Earle had then in effect been cross-examined on behalf of the pursuers. Her evidence regarding the position of the second twin had not been challenged. Yet when Dr Atkins gave his evidence, he had refused to accept her evidence as to the position of the baby and had insisted it must have been lower down than she had said it was, presenting in the pelvis. That was a material consideration. He had claimed the baby was probably "impacted" in the pelvis. Dr Miller had thought the point was of significance. If it had been impacted, stimulation by contractions induced by syntocinon would have been unable to move it, so that normal delivery would have been impossible. It was not clear how important Dr Atkins considered the position of the baby was. However, Dr Miller had thought that the position of the baby was material to his position. No alternative hypothesis of fact had been put to him. There was thus a dispute of fact on the issue of the position of the baby. Dr Atkins had been challenged on his account of the position of the baby, in cross-examination. Dr Miller also had been cross-examined. However, it had not been raised with Dr Busby-Earle. The Lord Ordinary had resolved this matter in favour of Dr Busby-Earle's evidence, as appeared from paragraph 28 of her opinion. It had been represented that Dr Atkins had understood the true position, but that was simply incorrect. He had listened to the evidence of Dr Busby-Earle, but on the critical issue of the position of the baby he had not accepted her account. He had given his evidence on the basis of a different version which had been rejected by the Lord Ordinary. In particular, Dr Atkins had proceeded upon the basis that there was a physical impossibility involved in what Dr Busby-Earle contemplated. In any event, the foetal disposition had been resolved by the Lord Ordinary's acceptance of Dr Busby-Earle's evidence. That conclusion had not been challenged in either the grounds of appeal or the submissions to the court. (v) The vital question for decision by the Lord Ordinary had been what Dr Busby-Earle had perceived and whether, in the light of that, her conduct had been negligent. The Lord Ordinary had heard two medical expert witnesses on the issue of culpability. One of these, Dr Miller had accepted Dr Busby-Earle's account of the facts and had given his supportive opinion on that basis. The other had refused to accept Dr Busby-Earle's evidence of fact and had given his evidence on a different hypothesis. Having accepted Dr Busby-Earle's account of the facts, it was not surprising that the Lord Ordinary had given more weight to the opinion of that expert whose evidence proceeded on the version of the facts which had been held to have been correct. Thus the first reason given by the Lord Ordinary for preferring Dr Miller's opinion, in paragraph 90 of her opinion, was entirely sound.

[27]     
Counsel for the defenders and respondents then moved to the second chapter of his submissions concerning the applicable law. He submitted that the relevant authorities were few in number and well known. The fundamental test for medical negligence was to be found in Hunter v Hanley at pages 204-206. The test had been considered and elaborated in Maynard v West Midlands Regional Health Authority; the observations of Lord Scarman between pages 637 and 639 were important. They emphasised the respect which ought to be given on issues of fact to the decision of a judge of first instance. Finally, the test had been further elaborated in Bolitho v City and Hackney Health Authority between pages 241 and 243. In this latter case it had been emphasised that it would very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert were unreasonable. It would only be where a judge could be satisfied that a body of expert opinion could not be logically supported at all that such opinion would not provide the benchmark by reference to which the conduct of a practitioner fell to be assessed.

[28]     
Counsel for the defenders and respondents next passed to chapter three of his submissions, relating to the attack now mounted upon the evidence of Dr Miller in the supplemented ground of appeal 2. Much of the criticism of Dr Miller's evidence appeared to be based on alleged inconsistencies between his evidence and that of Dr Busby-Earle. Accordingly counsel for the defenders and respondents proposed first to consider the evidence of Dr Busby-Earle; thereafter he intended to look at the evidence of Dr Miller with a view to showing consistency; thirdly he intended to show that that evidence was rational and considered; and, fourthly he intended to deal with certain specific criticisms of Dr Miller's evidence advanced on behalf of the pursuers and reclaimers.

[29]     
In relation to the first of these matters, two questions arose: (a) what was the situation with which Dr Busby-Earle had been faced at about 8.00 pm on the day in question? (b) What was Dr Busby-Earle endeavouring to do in the critical period from about 8.00 pm to 8.08 pm? As regards the first of these issues, counsel considered the evidence of Dr Busby-Earle relating to the position of the second twin. Reference was made to the evidence at pages 61-62, 97-98, 103-104, and 108-109 of the transcript. The head was just alongside the shoulder; nothing had come through the cervix. The head was apparently so close to the proper position for natural delivery that Dr Busby-Earle expected it would slip into the right place. The presenting parts were certainly above the cervix. The head was at most 5 to 10 degrees off the mid-line. There was no question of the shoulder being impacted; it was above the cervix. That position was confirmed at page 129 of the transcript of evidence.

[30]     
Moving on to the issue of what Dr Busby-Earle was endeavouring to do during the critical period, reference was made to pages 46-48, 62 and 66 of the transcript of evidence. That revealed that Dr Busby-Earle's purpose was to achieve natural delivery, with the assistance of the administration of syntocinon to stimulate uterine activity. Manual manipulation was to be applied to the hand beside the baby's head with a view to achieving its withdrawal.

[31]     
Counsel then proceeded to consider the evidence of Dr Miller. That witness plainly understood and accepted Dr Busby-Earle's findings on examination, unlike Dr Atkins. It was submitted that, in giving his opinion to the court, he also understood clearly what Dr Busby-Earle was seeking to achieve. In assessing the reasonableness or rationality of his evidence it was important to consider the way in which it was delivered to the Lord Ordinary. The examination in chief ran from page 547 to page 615. It was evident from Dr Miller's evidence that he expressed his opinion on the basis of a clear understanding of the facts. He took into account a range of factors, the relevance of which he explained; in expressing his views, he was conscious of the issue of risk and relative risk. Counsel then proceeded to make references to a series of passages in Dr Miller's evidence in chief to support his contentions. Among the particular points made by Dr Miller were the reasonableness of the administration of syntocinon in the particular circumstances in which Dr Busby-Earle found herself; the very efficient obstetric record of the first named pursuer, who had just been delivered of the first twin, which led to the justified assumption that only a very few contractions might have solved the problem; the fact that the presenting part of the baby lay at a relatively high level. Against this background, Dr Miller had disagreed with the position of Dr Atkins that there had been no realistic possibility of achieving a movement of the second twin into a lie in which it could have been delivered naturally. Furthermore, Dr Miller did not agree with the view of Dr Atkins that Dr Busby-Earle had, at the material time, been dealing with a case of obstructed labour. There was no question of the presenting part of the second twin having been applied to the cervix. It also had to be borne in mind that a Caesarean section presented a greater risk as compared with vaginal delivery; it was therefore desirable to avoid Caesarean section, if the baby could safely be delivered vaginally. Dr Busby-Earle had been correct in deciding that when the detection of the foetal heart rate problem emerged, attempts at a natural birth should be discontinued and Caesarean section undertaken, subject to her obtaining Professor Calder's advice. There were potential risks associated with the course of action adopted by Dr Busby-Earle, but, equally, there were certain risks associated with the execution of a Caesarean section. The various risks had to be assessed and a judgement made as to the best course. The judgement made by Dr Busby-Earle had been reasonable. Dr Busby-Earle had not been relying upon the possibility of "spontaneous reversion" to a longitudinal lie, referred to in Dewhurst, at page 362; she had taken steps to precipitate reversion. At pages 614-615 of the transcript of evidence, Dr Miller had expressed the opinion that Dr Busby-Earle's standard of care, in a difficult and rather unusual situation was very satisfactory; she had made a reasonable attempt to achieve an easy vaginal delivery, but did not persist with it unwisely.

[32]     
Counsel submitted that Dr Miller had addressed the issue of negligence in a clear manner and with the correct understanding of the primary facts. That had to be contrasted with Dr Atkins, who had proceeded upon facts rejected by the Lord Ordinary. Neither Dr Miller's credentials nor the sincerity of his views had been challenged. Factors of importance which he had identified were (1) the first named pursuer's parity; (2) her demonstrated obstetric efficiency; (3) the position of the second twin, including the position of the head; (4) the fact that, at the material time, there had been no contractions; (5) the fact that the cervix was not fully dilated at that time; (6) the relative desirability of vaginal delivery, as opposed to Caesarean section; (7) the reasonableness of Dr Busby-Earle's assumption concerning the presence of liquor; (8) the absence of any immediate risk in the whole circumstances; and (9) the cautious approach adopted to selection of the dosage of syntocinon. In all of these circumstances it was submitted that the Lord Ordinary was fully entitled to accept Dr Miller's evidence, as she had done.

[33]     
Counsel next proceeded to deal with the specific criticisms of Dr Miller's evidence which had been advanced by counsel for the pursuers, the fourth part of chapter three of his submissions. It had been contended that Dr Miller's evidence was inconsistent with certain passages of certain textbooks. However, the fact was that textbook material had not been dealt with properly at the proof, as already explained. Accordingly caution had to be exercised in drawing any conclusions from such material. Counsel for the pursuers had made much use of textbook passages, but that was not an appropriate approach. Textbooks could only possess a standing if they had been, in some way, incorporated into the evidence of witnesses. Largely that had not been done. In any event, as Dr Atkins had accepted, for a clinician in practice, matters were rarely as clear cut as they were portrayed in textbooks. Clinicians had to exercise their own judgement, in the face of the facts as known to them. In any event, there was a danger in lawyers seeking to interpret passages in medical textbooks for themselves. For example, it was submitted that the passage in Essentials of Obstetrics and Gynaecology, Hacker and Moore (1992), at page 239 did not describe the presentation of the second twin observed by Dr Busby-Earle. Accordingly the opinion expressed in relation to that presentation was irrelevant.

[34]     
It had been contended that Dr Miller's evidence was self-contradictory, and that he had sought to give the impression there was something unique about the first named pursuer's position. However, if Dr Miller's evidence were read fairly, it would be appreciated that it contained no significant contradictions. It was clear from a reading of Dr Miller's evidence as a whole that there were certain particularities in the first named pursuer's situation which had had to be taken into account.

[35]     
By way of criticism of Dr Miller it had been suggested that he had, in effect, reconstructed Dr Busby-Earle's evidence ex post facto. That was an unfair criticism. It had been said that there was no evidence that Dr Busby-Earle thought that there was sufficient liquor present to facilitate a repositioning of the second twin. However, that was not the case. She had assumed that the membranes had been ruptured after the delivery of the first twin, as appeared from her evidence at pages 43-44 of the transcript. That position was not inconsistent with what had been said by Dr Miller at page 576. It did not follow from the occurrence of the rupture that no liquor remained within the body of the mother, having regard to the fact that the first twin had been born at 7.52 pm.

[36]     
A further specific criticism of Dr Miller's evidence had been that his opinion had been founded on a misapprehension of fact. Reliance had been placed on the fact that it had been ascertained that there had been a single sac. However, what had been discovered following Caesarean section could not properly be used as a basis for criticism of Dr Busby-Earle's handling of the case. The most significant misapprehension of fact was that of Dr Atkins in relation to the position of the second twin. A further specific criticism of Dr Miller's evidence had been that he had been silent on certain critical matters. Particular attention had been paid to the matter of the withdrawal of the hand. However, that matter had not been founded upon at the proof at all. It was, of course, the case that Dr Busby-Earle had said that she had hoped that the hand would have been withdrawn. However, she had not suggested that its withdrawal was a sine qua non for her exercise. Looking at the various particular criticisms made of Dr Miller's evidence before this court, the fair conclusion was that they were without real substance. In all the circumstances the Lord Ordinary had been fully entitled to accept his evidence.

[37]     
Counsel then went on to consider the terms of the original grounds of appeal, prior to their supplement. As regards the point made in ground of appeal 1, which was focused on paragraph 82 of the Lord Ordinary's Opinion, it had been argued that that approach was erroneous, because, during the critical period, Dr Busby-Earle had not considered internal version. The true question, it was said, was whether Dr Busby-Earle had been negligent to wait in the hope that a natural delivery could be achieved. There had never been any dispute that Dr Busby-Earle was not qualified to undertake internal version. Furthermore, she had not decided to call upon a qualified colleague before calling on Professor Calder at 8.10 pm. That having been said, the reference in paragraph 82 to internal version was unexceptionable. In any event, it was plain that the Lord Ordinary had considered what was said to be the true question, that is to say whether there had been negligence in attempting to achieve natural delivery prior to 8.10 pm, as appeared from paragraphs 83-87 of her Opinion.

[38]     
Turning to the original ground of appeal 2, the criticism was based upon the contents of textbooks, with which the respondents' submissions had already dealt in general. However, counsel wished to emphasise four points. First, the textbooks in question had not been put to Dr Busby-Earle; the pursuers had failed to establish that the situation that she had faced fell within the parameters to which the textbook pronouncements related. Secondly, the issue before the court was not whether a shoulder presentation could be delivered vaginally; plainly it could not. The question was whether the registrar's attempt to correct the lie of the baby amounted to negligence. Thirdly, the textbooks relied upon did not prohibit the course of action taken by Dr Busby-Earle. Fourthly, it was not for the defenders to justify the conduct of Dr Busby-Earle by reference to textbooks, a fortiori if they had not been put to her; the onus of proving medical negligence remained with the pursuers.

[39]     
Elaborating these particular submissions on ground of appeal 2, counsel accepted that Dr Busby-Earle had acknowledged the relevance of the description "shoulder presentation" but it was not shown that she had accepted that the situation with which she had been faced was the same as that described as shoulder presentation in the textbooks. In this connection an important point was the position of the second twin in relation to the cervix. She had been given no opportunity to comment on the textbooks now relied upon other than Dewhurst. Thus it would have been essentially inappropriate for the Lord Ordinary to have formed a view critical of Dr Busby-Earle based on the texts.

[40]     
In relation to the second of the submissions on this part of the case there was agreement that there could not be vaginal delivery of a baby with shoulder presentation. That was not an issue. The true question was whether it had to be appropriate to take steps to try to achieve a correction of the baby's lie. It had been understood that textbooks could not deal with every possible set of circumstances that might emerge in the course of medical practice. What was plain was that they did not prohibit the course of action adopted by Dr Busby-Earle. No textbook stated that, in the situation in which she found herself, no time should be allowed for the baby to come into a deliverable alignment. It was dangerous to read the textbooks in the manner in which they had been read by counsel for the pursuers. While it was acknowledged that the Lord Ordinary had described Dr Busby-Earle's approach as not a "textbook response", it had to be recognised that the textbooks did not deal with the multifarious situations which could occur in medical practice. It was of no particular significance to say that a situation with which a practitioner had been faced was not one described in the textbook. That state of affairs had been appreciated by the Lord Ordinary, as appeared from paragraph 88 of her Opinion. Dr Miller had said in evidence that there was "at best a 50:50" chance of success in the enterprise undertaken by Dr Busby-Earle. It did not follow from that acknowledgement that to follow that course involved professional negligence. At 8.00 pm there had been no indications of distress or danger to the foetus. In the event of Dr Busby-Earle's efforts not being effective, the result would simply have been a failure to achieve natural delivery, not death or damage; Caesarean section remained an option and was indeed pursued at the first indication of foetal distress at 8.08 pm.

[41]     
The original ground of appeal 3 related, once again, to the Lord Ordinary's preference for the evidence of Dr Miller over that of Dr Atkins. If this ground were to succeed, the appellants would require to show that that preference was erroneous. In this ground of appeal it was averred by the appellants that the Lord Ordinary's preference was based upon mere suspicion. In relation to this matter the respondents would make three submissions: (1) it was legitimate for the Lord Ordinary to note that Dr Atkins had proceeded upon an inaccurate and incomplete picture of the facts; (2) it was clear from the Lord Ordinary's Opinion that that was only a secondary basis for preferring Dr Miller to Dr Atkins; the principal reason was what the Lord Ordinary considered was Dr Atkins' misconception of the position of the second twin, derived from Dr Busby-Earle's unchallenged evidence relating to that position; (3) in order to succeed, the appellants had to do more than persuade the Court that the preference of Dr Miller over Dr Atkins was erroneous; they had to show that the Lord Ordinary was not entitled to prefer Dr Miller's evidence.

[42]     
Counsel for the respondents went on to develop these submissions. As regards the first, he said that allowance had to be made for Dr Atkins refining his views in the light of Dr Busby-Earle's evidence as to the facts. It was less easy to excuse his reaching different conclusions in two different reports prepared from the same documentary evidence. At no time was it said that the earlier report was not intended to be relied upon. It had been sent to the respondents by the pursuers' agents. Dr Atkins' first report was described as a full report. Further, it was to be noted that the second report had been based on the same documentary evidence. Yet, at page 240 of the Appendix, that report contained an error. Dr Atkins' use of language in these reports was admittedly loose, in relation to presentation. That was a matter of concern in relation to a context in which the pursuers sought to make much of the precise terminology used in textbooks on obstetrics.

[43]     
Turning to the second submission on this aspect of the case, the principal ground for the Lord Ordinary's preferring Dr Miller was that Dr Atkins had expressed his evidence on the basis of a particular position of the second twin, which was different from the position described in Dr Busby-Earle's unchallenged evidence. In a nutshell, where there was a question of which two experts should be preferred, it was appropriate that the choice should be made on the basis of the accuracy of the facts underlying the opinions expressed. Dr Atkins had never spoken to negligence on the basis of the facts which he did not accept, spoken to by Dr Busby-Earle.

[44]     
Turning to the third submission on this aspect of the case, counsel for the respondents contended that, even if the court were persuaded that the Lord Ordinary's reasons for preferring the evidence of Dr Miller to that of Dr Atkins were unsound, that would not be enough to allow the appeal to succeed. The criterion by which medical negligence was to be established required that the pursuers should show a deviation from ordinary professional practice which no professional person of ordinary skill would have followed, if acting with ordinary care. Dr Miller categorically refuted any suggestion that Dr Busby-Earle had so deviated. It had not been suggested, either at the proof, or in this Court, that Dr Miller was not a competent medical expert. Nor had it been suggested at the proof that his views were other than genuinely held. Accordingly exception was taken to the suggestion made by counsel for the appellants that Dr Miller had been "doing his best to defend the girl". Such a suggestion was patronising and objectionable. The contention had appeared to be that Dr Miller had been less than impartial and objective. No such suggestion had been put to Dr Miller in evidence, or argued before the Lord Ordinary.

[45]     
The point remained whether it could be said that Dr Miller's views were incapable of logical analysis and therefore not reasonable or responsible. In this connection reference was made to the observations of Lord Browne-Wilkinson in Bolitho v City & Hackney Health Authority at page 243. It would be very seldom right for a judge to reach the conclusion that views genuinely held by a competent medical expert were unreasonable. In all of these circumstances the Lord Ordinary was quite entitled to find the evidence of Dr Miller persuasive and to prefer it to that of Dr Atkins.

[46]     
Counsel for the respondents went on to deal with the pursuers' ground of appeal 4. It was indicated that, in view of the fact that the submission concerned had not been made to the Lord Ordinary at the proof, the defenders conceded that Dr Atkins' evidence did amount to the giving of evidence of negligence according to the criteria set forth in Hunter v Hanley. However, it had to be made plain that that concession was limited to the hypothesis of fact upon which Dr Atkins' evidence was based. There remained the problem that Dr Atkins' evidence proceeded upon a perception of the position of the baby which was contrary to Dr Busby-Earle's unchallenged evidence, which had been accepted by the court. Dr Atkins had not been asked whether, if, contrary to his view, the court accepted Dr Busby-Earle's position of where the baby was lying, he would still be of the view that a Caesarean section was necessary at the earliest stage. He might have answered that question in the affirmative, but it was never asked.

[47]     
Counsel for the respondents next proceeded to consider the issue of causation, in connection with ground of appeal 5. He submitted that in order to have succeeded at the proof, it would have been necessary for the pursuers to persuade the court that Dr Busby-Earle had failed in her purported duty to proceed to Caesarean section immediately on diagnosing a shoulder presentation. However, a causative link would also have had to have been established; it would have had to have been shown that, had Dr Busby-Earle so acted, the second twin would have survived and have been capable of an independent existence. In view of the evidence of the neonatologists, that would have required the pursuers to show, on a balance of probabilities, that, had Dr Busby-Earle acted as they say she should, the baby would have been delivered at or before 8.24 pm. In fact, he was delivered at 8.31 pm, that is 23 minutes after the decision had been taken to proceed to Caesarean section at 8.08 pm.

[48]     
It was stated in ground of appeal 5 that the pursuers' case would have had to have proceeded on the basis that the time that it took to get the baby to theatre would have been the same as it took after the decision in favour of Caesarean section had been made at 8.08 pm. The Lord Ordinary had not been prepared to make that assumption. It was submitted that she was entitled to decline to do so. In that connection three points had to be made. First, delay was not an incidental aspect of the case; it was at the heart of it. Dr Atkins had clearly disapproved of the administration of syntocinon, because he thought it unlikely that it would bring about the desired result. However it was not suggested that it played any part in the death of the damaged baby; the case made at the proof was based on the delay caused by the administration of syntocinon. Secondly, matters of fine timing were critical to causation in this case. The neonatologists had agreed that, if the baby had been delivered at or before 8.24 pm, he would probably have survived. The time of 8.24 pm had come from the evidence of Dr Sinha. Professor MacIntosh related it to the foetal heart rate determined then, the last foetal heart rate determination before birth. There was no dispute that 8.24 pm was the key time. Yet that time was not what might be described as a hard borderline. Both of these witnesses agreed that delivery at or before 8.24 pm would have resulted in a baby capable of independent existence. So, if a decision had been taken for Caesarean section at 8.00 pm, 24 minutes would have been available. Thus delivery would have had to have been completed in the same time or faster than it was achieved after the decision taken at 8.08 pm. In ground of appeal 5 it was contended that there was no evidence upon which to conclude that the time lag would have been materially different. The respondents' submission was that there was no material on which to conclude that the period would have been similar. The Lord Ordinary had been unwilling, in a context where fine timing was so critical, to conclude that the process would have been completed in 24 minutes.

[49]     
Thirdly, it was submitted that there would have been more force in ground of appeal 5 if the circumstances in which an hypothetical decision to proceed to Caesarean section would have been taken were identical with those prevailing at 8.08 pm, when the actual decision had been taken. The fact was that they were not, as appeared from paragraph 98 of the Lord Ordinary's Opinion. At 8.00 pm, there was no apparent cause for alarm or concern. There was no reason to suspect or to expect that the baby might have been suffering from any form of asphyxia. Furthermore, there had been no evidence of any hypothetical timing; there had been only the evidence of the actual sequence of events starting at 8.08 pm. The pursuers' position was that an inference ought to be made that the timing would have been the same. Given that as short a period as one minute could have made the difference on causation, the Lord Ordinary's conclusion was justified. Dr Miller had stated that a figure of as much as 40 minutes might elapse in current practice between the taking of a decision to conduct a Caesarean section and the delivery of the baby. The Lord Ordinary had been criticised in this aspect of the case for indulging in speculation. That criticism was unfair. It was undoubtedly the case that the situation at 8.00 pm differed from that at 8.08 pm. What the Lord Ordinary had done was to refuse to engage in speculation in the pursuers' favour. That was not a legitimate basis for criticism.

[50]     
In this connection it was fair to comment on how matters had developed at the proof. Originally, the pursuers had averred that, had the second twin been delivered not less than 10 minutes prior to his actual delivery at 8.30 pm, it was probable that he would not have suffered brain damage. Thus originally, 8.20 pm had been the vital time. Only in the course of the proof had there been an amendment in this connection. Only after that amendment was it contended that a lapse of time up to that now mooted would have saved the child. It had to be recognised that the burden of proof of causation lay upon the pursuers, as appeared from the observations of Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority, at page 239. The necessary proof for the pursuers here consisted in an inference from what had occurred following the decision taken at 8.08 pm. If, as had been the case, the Lord Ordinary was not prepared to make that inference, then the pursuers' case failed.

[51]     
Summarising his position, counsel for the defenders said that, subject to the concession which had been made, all five grounds of appeal were ill-founded. It could properly be said that the reclaiming motion was less of an attack upon the opinion of the Lord Ordinary than an attempt to reformulate the pursuers' case in a way that had not been presented to her at the proof; thus it should be viewed with caution. The role of the judge of first instance, as explained, should be respected. If the court considered the evidence of Dr Busby-Earle and Dr Miller in its entirety, it would be obvious that the criticisms of the conclusions of the Lord Ordinary were ill-founded.

Submissions by senior counsel for the pursuers

[52]     
Senior counsel for the pursuers indicated he would make five submissions. These would be:

(1) On the evidence, the Lord Ordinary erred in failing to find in fact that there was a normal and usual practice for the delivery of a second twin in shoulder presentation, as the first named pursuer's second twin was at 8.00 pm, and that the Lord Ordinary also erred in failing to find as a fact that the course taken by Dr Busby-Earle deviated from normal and usual practice;

(2) In assessing whether the deviation constituted fault and negligence, the Lord Ordinary was not entitled to decide the matter as one of "judicial preference" for what constituted reasonable clinical judgment; on a proper approach, the evidence was insufficient to support the conclusion that the deviation was justified. Since the matter was open for review, a finding of negligence ought to be made by this court;

(3) In any event, properly directed, the Lord Ordinary was not entitled to find the evidence of Dr Miller persuasive;

(4) Separatim the Lord Ordinary had no sound reason for finding the evidence of Dr Atkins less persuasive in relation to that of Dr Miller; and

(5) The Lord Ordinary had misdirected herself in failing to be satisfied on the unchallenged and uncontroverted evidence of Dr Atkins that Dr Busby-Earle's omission caused the death of the second twin.

[53]     
Senior counsel went on to comment on the context of the case. He said that the loss of the second twin was a tragedy for the family involved, since the parents had sought an elective Caesarean section, but had been told that they could not have it. When one of the classic complications did arise, there had been a fatal delay because of a lack of skill on the part of the obstetrician. This was compounded because it had been on the cards from 1.15 pm that day that there might have to be a Caesarean section, since the second twin had been found to have been in an oblique lie, with his head against the right iliac fossa.

[54]     
Senior counsel would be replying to the respondents' submissions. These included a submission to the effect that if Dewhurst were consulted, at page 362 there was a passage which might be thought to support Dr Busby-Earle, but the fact was that there was no textbook support for her course of action, as was explained by Dr Atkins at pages 219-220 of the transcript. It was evident from Dewhurst that there did exist a practice in relation to the difficulties of second twins; Dr Miller had denied that. In this connection reference was made to the evidence of Dr Miller at pages 717-718 and 732-736 of the transcript. It was accepted however that Dr Miller's evidence did not contradict anything said in Dewhurst. It was also accepted that the court could not proceed to engage in the interpretation of textbooks standing alone; they acquired a status only by virtue of evidence given concerning them. Junior counsel for the pursuers had not intended to follow any different approach. It was submitted that Dr Miller's evidence was difficult to follow, particularly in the context of the criterion set forth in Hunter v Hanley. It had been a matter for comment that certain textbook material had not been put to Dr Busby-Earle; however, no material prejudice had resulted from that failure.

[55]     
Senior counsel then went on to elaborate his first submission in detail. He pointed out that the Lord Ordinary had found as a fact that at 8.00 pm Dr Busby-Earle had diagnosed a shoulder presentation of a second twin. In paragraph 82 of her opinion, the Lord Ordinary had found that there was a normal and usual practice in relation to such a situation, although it was not to proceed to immediate Caesarean section. It involved the consideration and exploration of the possibility of internal version. However, Dr Busby-Earle had not contemplated internal version being carried out by her, since she was not qualified to perform it. It was something considered by Professor Calder at 8.10 pm. However, it was submitted, on a proper view of the evidence, not going to the theatre at 8.00 pm was a departure from the normal practice, since both internal version and Caesarean section required the administration of a general anaesthetic. What Dr Busby-Earle had done was to adopt what might be called a third way, which was not part of normal practice. The Lord Ordinary had found that Dr Busby-Earle had had an option of calling upon a senior colleague and that accordingly there was no normal practice, as postulated by the pursuer. That position was illogical. The proper practice was the composite one involving (1) internal version; which failing (2) Caesarean section. Dr Busby-Earle had closed an option by waiting as she did. What was open to criticism was the introduction of a third way which held up the possibility of putting the foregoing two options into practice.

[56]     
The Court should make a finding of normal and usual practice, on the basis suggested, where there was a second twin to be delivered, in an oblique presentation. Paragraph 82 of the Lord Ordinary's Opinion was unclear; she had not made plain exactly what she was saying. It appeared that Dr Busby-Earle at 8.00 pm considered that the course which she followed was the right one. She did not seek the advice of a senior colleague at that time. However, the result of her actions was fatal delay. In this connection reference was made to Bull and Another v Devon Area Health Authority [1993] 4 Med LR 117, a case concerned with the failure of a health authority to establish an efficient system for suitably qualified medical practitioners to be on call to attend a medical emergency. In the present case, Dr Busby-Earle had failed to consider what would happen if her scheme failed to achieve delivery. If it were accepted that there was a usual and normal practice for the delivery of a second twin in an oblique lie, it must be held that Dr Busby-Earle departed from it and that the Lord Ordinary was bound so to find, in respect that the first named pursuer had not been taken to the theatre at 8.00 pm.

[57]     
It was evident from paragraph 83 of the Lord Ordinary's Opinion that if, contrary to her view, it were to be taken that there had been a usual and normal practice from which Dr Busby-Earle had departed, she had not been satisfied that the course adopted was one which no ordinarily competent obstetrician and gynaecologist acting with reasonable care and skill would, in the particular circumstances, have adopted. Yet, the Lord Ordinary had not considered in detail the question of deviation. There should have been a finding of deviation.

[58]     
Senior counsel went on to elaborate his second main submission. In assessing whether a deviation from normal practice constituted negligence, the Lord Ordinary had not been entitled to decide the matter as one of judicial preference. On a proper approach, the evidence had been insufficient to support the conclusion that the deviation was justified. Furthermore, in paragraph 92 of her Opinion, the Lord Ordinary had erred by misconstruing her function. In this connection reference was made to Strathclyde Regional Council v The City of Glasgow District Council, at page 54. The question was whether a responsible body of obstetric opinion would have supported a deviation from normal practice, such as Dr Busby-Earle followed. The test was objective, although it took into account the knowledge and skill of the practitioner involved. In this connection reference was made to Maynard v West Midlands Regional Health Authority, at page 638. The facts of that case were however distinguishable from those of the present, since there had been a deliberate and calculated view taken. Reliance was also placed upon Whitehouse v Jordan [1981] 1 WLR 246. The Lord Ordinary, in paragraph 86, had erred; the first sentence in that paragraph was wrong. It was not enough for a practitioner who had departed from the orthodox course of treatment, simply to say that the decision was based on clinical judgement. It was necessary to enquire whether the practitioner took all proper factors into account and whether the departure from the orthodox course could be justified on the basis of those factors, as appeared from Clark v MacLennan and Another [1983] 1 All ER 416. The Lord Ordinary had not found that the departure from practice was justified; she had held that there was no applicable practice. The fact of the matter was that Dr Miller's evidence did not provide a cogent justification for Dr Busby-Earle's departure from normal practice.

[59]      Senior counsel turned next to elaborate his third main submission. It was focused upon paragraph 90 of the Lord Ordinary's opinion. The criticism made was that Dr Miller's evidence could be seen as representing an ex post facto justification for the conduct of Dr Busby-Earle, which imputed a thought process to her to which she did not speak. In this connection reference was made to Dr Miller's evidence at pages 810-811, 812, 823-824, 828, 829, 862-863, 947-948, and 964-965 of the transcript. In these passages Dr Miller attributed to Dr Busby-Earle things which she herself did not say. In that connection reference was made to Dr Busby-Earle's evidence at pages 299-300, 314-317, 364-365, 390-391 and 394 of the transcript. On the other hand, Dr Atkins had addressed Dr Busby-Earle's actual thought process and had rejected its validity. In all these circumstances, the Lord Ordinary was not entitled to find Dr Miller's evidence persuasive.

[60]     
Senior counsel then proceeded to elaborate his fourth main submission which also was focused on paragraph 90 of the Lord Ordinary's Opinion. She stated there that she had two reasons for finding Dr Atkins' evidence less persuasive than that of Dr Miller: (1) an erroneous perception on the part of Dr Atkins on the position of the baby; and (2) a mistaken perception on the part of Dr Atkins of the presentation. In response to these reasons of the Lord Ordinary, it was submitted that there was no evidence that, once a shoulder presentation had been diagnosed, the height of the presenting shoulder was relevant to the outcome. Furthermore, the difference in perception in reality did not exist. The views of the Lord Ordinary as regards this were not supported by the details of the evidence. In connection with this submission reference was made to a number of passages in the evidence.

[61]     
If any of the second and third submissions made were accepted, the matter of deviation from practice was open for review. On such a review, the appropriate finding was that negligence had been established. The pursuers had discharged the evidential onus on them. The defenders had not shown that there was any clinical judgement to deviate, or that the circumstances warranted it. Such evidence as there was to the effect that the course of action adopted by Dr Busby-Earle was competent could not be taken to satisfy the test in Hunter v Hanley. There were two reasons for this. First, Dr Miller had said that Dr Busby-Earle was proceeding in a competent way. However he had not been talking about the administration of syntocinon. What he had said could not satisfy the competent practitioner test, since he had emphasised that what happened here had not happened to any other practitioner. The management of this set of circumstances was unique. It had been done by a practitioner who did not profess to know the normal and usual practice. However, it did not matter whether the negligence was ignorant or informed. The old maxim spondet peritiam artis operated. The want of knowledge and skill was to be accounted as a fault. In this connection reference was made to Commentaries on the Law of Scotland, 6th Ed. G. J. Bell (1858) I.4.7.

[62]     
Senior counsel then proceeded to elaborate his fifth submission. The matter of causation was dealt with by the Lord Ordinary in paragraph 98. The question was what would a competent practitioner have done at 8.00 pm. The answer was make arrangements for an immediate Caesarean section. There were only two categories of such procedure, elective or emergency; there was no third category. The Lord Ordinary had misdirected herself in holding that she was being asked to speculate; that was not the case. What the Lord Ordinary herself had done was to engage in speculation. The only evidence available as to the period of time which Caesarean section would take was that derived from the time actually taken following the decision to proceed in that way made at 8.10 pm. The matter was explained by Dr Atkins at pages 296-297 of the transcript of evidence.

Senior Counsel for the Respondents

[63]     
Introducing his submissions, senior counsel for the respondent said that, on one view, this case might be characterised as straightforward as regards witnesses and evidence. Dr Miller had been supportive of Dr Busby-Earle. He was an acknowledged expert, whose evidence the Lord Ordinary had found acceptable. She had no basis for rejecting his evidence. On that view, she had no basis for applying the criterion of Hunter v Hanley in such a way as to reach a conclusion adverse to the defenders. On that approach, the defenders sought refusal of the reclaiming motion.

[64]     
It was instructive to note the bizarre turns taken by this case. Originally, on paper, the pursuers' case had been predicated upon an alleged failure to detect foetal distress before 8.00 pm. That element had now disappeared from the case. The evidence of Dr Busby-Earle had been led for the pursuers. Plainly that had created a difficulty for counsel, but the task had been performed methodically. There had been an adjournment for the pursuers' counsel to discuss Dr Busby-Earle's evidence with Dr Atkins. Following upon that, Dr Busby-Earle had been, in effect, cross-examined as an hostile witness by counsel for the pursuers. Certain things had not been put to her for comment. The respondents took issue with the allegation that Dr Atkins' evidence was not at odds with that of Dr Busby-Earle on fact, particularly in relation to the height of the baby in the pelvic cavity. The Lord Ordinary had been entitled and did accept the evidence of Dr Busby-Earle as to the facts of the events under consideration. What had not been put to Dr Busby-Earle was the passage from Dewhurst. However she was plainly aware of the matters with which it dealt. Equally the literature had not been put to Dr Atkins. No real criticism had been made of the evidence of Dr Miller before the Lord Ordinary. The submissions made by the pursuers at the proof did not foreshadow the contents of paragraph 90 of the Lord Ordinary's Opinion. However, the Court should be slow to overturn the Lord Ordinary's decision as to her preference for one source of evidence over another. Nevertheless, it was accepted that the evaluation of the evidence of experts was a somewhat different matter from that of witnesses of primary fact. In paragraph 82 of her opinion the Lord Ordinary had found that there was established no applicable practice. In that connection Dr Atkins himself had accepted that textbooks do not tell the whole story in all circumstances. Reference was made to page 531 of the transcript. There had been some difficulty in the diagnosis of the lie of the child; Dr Busby-Earle had not encountered this particular situation before. Accordingly her training and experience did not assist her. Further, it had to be realised and was realised by her that Caesarean section was a major abdominal surgical procedure. Unless there was a sound medical reason for it, it should not be undertaken. In that context, Dr Busby-Earle had formed the view that another procedure should be attempted. In the event, no contractions had been generated by the administration of syntocinon. At that stage, evidence of foetal distress had emerged. Accordingly a decision had then been taken to proceed to theatre for either a Caesarean section, to be performed by Dr Busby-Earle, or, internal version, if possible, of which Professor Calder was to be the judge.

[65]     
It was quite plain from the evidence that Dr Busby-Earle was fully aware of the options available. Her actings overall showed the appropriate knowledge, but also a high degree of care; unfortunately, in the event, the second twin died. That outcome did not, however, assist the Court. It was of significance that when the first named pursuer was taken to the theatre, Professor Calder did not proceed immediately to Caesarean section, but explored the alternative option. There had in fact been a nine minute period between Professor Calder's first and second vaginal examinations.

[66]     
If the whole of Dr Busby-Earle's evidence was considered, what emerged was that, although she spoke of manipulation of the fingers of the baby, as well as the administration of syntocinon, she knew very well what the purpose of that procedure was. The aim was cervical dilation and uterine contraction which were two sides of the same coin. She was seeking to bring about a few contractions in order to nudge the head into a position where natural delivery could occur. Dr Busby-Earle's thought processes were explained by her at page 46 and the following pages of the transcript. That was what Dr Miller had considered, at page 614 and the following pages of the transcript. Unfortunately the administration of syntocinon did not bring about contractions; that, together with the information which emerged concerning the foetal heart rate, demanded a different approach, which was then adopted. The original course of action adopted by Dr Busby-Earle was realistic. The shoulder of the second twin had not been impacted in the cervix; there was thus the possibility of movement. Dr Busby-Earle's actions were not unthinking, but were rational and had a realistic purpose, which Dr Miller supported. Senior counsel then went on to refer to numerous passages of evidence from Dr Busby-Earle and Dr Miller, which, he contended, supported his submissions.

[67]     
Senior counsel went on to consider Dr Atkins' evidence. The Lord Ordinary had given two reasons for its rejection in paragraph 90 of her Opinion. In Dr Atkins' evidence there was a recurrent theme, involving the witness having to correct himself for a loose use of language. That was a relevant factor in the evaluation of his evidence. It was a wider consideration than those relied upon by the Lord Ordinary. If this Court considered that it was free to review the matter, that was one of the main points which should be considered; in short, Dr. Atkins had not been a very good witness. In addition, when a witness provided a report and appended to it an extract from literature relating to a prolapsed arm and subsequently abandoned that material, one was forced to ask questions as to the reliability of the evidence of the witness concerned.

[68]     
Senior counsel then proceeded to consider in detail the evidence of Dr Atkins in relation to the position of the baby at 8.00 pm. He contended that the evidence of Dr Atkins showed that he had not been prepared to accept what Dr Busby-Earle had said concerning the position and presentation of the baby, yet the Lord Ordinary had been prepared to accept Dr Busby-Earle's evidence on this matter. No criticism of that part of the Lord Ordinary's decision had been advanced. Particularly at pages 267-272 of the transcript, Dr Atkins had advanced an erroneous view of the facts, which did not consist with the evidence of Dr Busby-Earle. This aspect of the matter was of great importance, since Dr Atkins had thought that the baby was impacted and that consequently there was no realistic prospect of it being moved to facilitate a natural delivery. Furthermore, there were a number of passages in Dr Atkins' evidence which demonstrated that he had used language and terminology in a loose manner, giving rise to ambiguity and confusion. On many occasions he had been compelled to correct himself. While the Lord Ordinary did not give that aspect of his evidence as a reason for preferring the evidence of Dr Miller, if the court were in the position of reviewing the evidence of these witnesses, the testimony of Dr Atkins was not impressive.

[69]     
At this point in his submissions, senior counsel commented upon certain authorities. First, the manner in which the test for professional negligence had been conceived and set out by the Lord President in Hunter v Hanley at pages 204-206 had stood the test of time. That test was apposite in the context of this case. One of the features of it was the question of whether there was a usual and normal practice applicable to the circumstances in which Dr Busby-Earle had found herself at 8.00 pm. It was submitted that the pursuers had not established that the Lord Ordinary had erred in rejecting the contention that there was such a practice. If that were correct, then the pursuers' case must fail. However, the third element of the test was important in the context of this case. The fact that no one could point to a recognition of the procedure carried out by Dr Busby-Earle in relation to the second twin did not assist the pursuers. That did not satisfy the third part of the test, which was to the effect that it had to be established that the course the doctor adopted was one which no professional person of ordinary skill would have taken, if they had been acting with ordinary care. Plainly Dr Miller had supported the course followed by Dr Busby-Earle; accordingly, to succeed, the pursuers had to undermine the Lord Ordinary's decision on the issue of practice and also show why Dr Miller's evidence should be discarded. The pursuers had failed so do to.

[70]     
The case of Maynard v West Midlands Regional Health Authority was of assistance in the context. The facts, it was accepted, were very different from those of the present case. The passage in the speech of Lord Scarman at pages 636-637 indicated the proper approach to be taken by an Appeal Court to findings of fact in a case such as this. In addition, there were more recent cases in the same vein, that is to say Barbour v Somerset County Council [2004] 1 WLR 1089 and Simmons v British Steel plc 2004 SLT 595.

[71]      It was submitted that, even having regard to the Lord Ordinary's first reason for preferring the evidence of Dr Miller to that of Dr Atkins, her decision was not open to criticism. However, if the Court were to reject both of the Lord Ordinary's reasons for her preference, then it would have to make its own decision concerning the evidence of these two witnesses. On the basis of the submissions already made about the quality of Dr Atkins' evidence, that of Dr Miller should be preferred.

[72]     
Reverting to Simmons v British Steel plc, senior counsel drew particular attention to the observations of Lord Hope of Craighead at paragraph 9 and Lord Rodger of Earlsferry at paragraphs 41-51. Also Maynard v West Midlands Regional Health Authority related to a considered course of action taken by two medical men. Lord Scarman said at page 638 that it was not enough to show that there was a body of competent professional opinion which considered that their decision was a wrong decision, if there also existed a body of professional opinion, equally competent, which supported the decision as reasonable in the circumstances. Having regard to that view, it was submitted that the alternative body of professional opinion did not require to be identified to avoid negligence. In the realm of diagnosis and treatment, negligence was not established by preferring one respectable body of opinion to another. What was necessary to show negligence was failure to exercise the ordinary skill of a doctor.

[73]     
In Bolitho v City and Hackney Health Authority, the issue was one of causation. However at pages 238-243 there were certain observations made in relation to competing bodies of expert opinion. It was submitted that those strictures applied in the present case where there were two expert witnesses only. Here Dr Miller had expressed an opinion supportive of Dr Busby-Earle, which opinion had not been demonstrated to be irrational.

[74]     
Summarising his position, senior counsel invited the Court to reject the pursuers' five propositions. There had been excessive emphasis in the pursuers' argument on the contents of text books, which had not been spoken to by witnesses. That was an illegitimate approach. As regards the pursuers' second proposition, while it was agreed there could not be a judicial preference as such, there was sufficient evidence to justify the view taken by the Lord Ordinary.

[75]     
As regards the question of causation, the submissions made by junior counsel were adopted. It was for the pursuers to show a causal connection. There were a number of uncertainties in the circumstances of this case. A minute's difference one way or another could affect the issue of life or death. Looking at all of the factors, it had been open to the Lord Ordinary not to infer that a decision which might have been taken at 8.00 pm to undertake a Caesarean section would have resulted in a procedure of identical length with that performed, following the decision made at 8.10 pm. In that regard the Lord Ordinary had not erred.

The Decision

The law relating to

(1) Professional fault and negligence

[76]     
In the course of the debate before us, no controversy emerged in relation to the law of professional negligence in the context of medical practice. The classic exposition of the law is to be found in Hunter v Hanley, in the judgment of Lord President Clyde between pages 204 and 206. There the Lord President said:

"But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear-cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care - Glegg, Reparation, (3rd Ed.) page 509. ...

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 a 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 the doctor 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. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated."

[77]     
In relation to the second part of the passage just quoted, where the Lord President sets out three facts which he says require to be established, we think it appropriate to emphasise the nature of the context in which it was said that that required to be done. The context was "where deviation from normal practice is alleged". Clearly Lord Clyde is not saying in the passage quoted that professional negligence cannot be established where the claim arises out of circumstances in which no normal medical practice is proved to exist, since the Lord President himself stated at an earlier stage:

"The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

As Lord Clyde pointed out, it is the third of his three facts which is of crucial importance, that is "that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care". Accordingly, for this reason we cannot agree with what the Lord Ordinary said in the last sentence of paragraph 82 of her Opinion. Before parting with this aspect of the case, it is right to note that Lord President Clyde's formulation has stood the test of time. In Maynard v West Midlands Regional Health Authority, at page 638, Lord Scarman in the House of Lords, in discussing the criterion for medical negligence, said: "I do not think that the words of Lord President Clyde in Hunter v Hanley can be bettered ..."

(2) The proper approach of an Appeal Court to findings of fact

[78]     
Since much of the discussion before us in this appeal was focused upon the decision taken by the Lord Ordinary to prefer the evidence of Dr Miller to that of Dr Atkins, it appears to us to be appropriate to restate the position of an Appeal Court in relation to findings of fact. While that matter was authoritatively discussed in Thomas v Thomas [1947] AC 484, the matter was again the concern of the House of Lords in Maynard v West Midlands Regional Health Authority, in a context of allegations of medical negligence. At page 636-637 Lord Scarman said this:

"In English law the appeal process is a rehearing of fact and law. But the limitations upon an appellate Court's ability to review findings of fact are severe, and well-established. Lord Thankerton stated the principles in Watt or Thomas v Thomas [1947] AC 484; and recently the cases and the principles have been reviewed by this House in Whitehouse v Jordan [1981] 1 WLR 246, itself a medical negligence case. It is, therefore, unnecessary now to restate them. I would, however, draw attention to some observations by Lord Bridge of Harwich in the Whitehouse case and by Brandon L.J. in a Court of Appeal case, Joyce v Yeomans [1981] 1 WLR 549, since they are directly relevant to the problems facing your Lordships in this appeal. Lord Bridge of Harwich said, at pages 269-270:

'I recognise that this is a question of pure fact and that in the realm of fact, as the authorities repeatedly emphasise, the advantages which the judge derives from seeing and hearing the witnesses must always be respected by an appellate court. At the same time the importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate Court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision.'

The primary facts in this case are undisputed. But there are gaps in our knowledge of some details of the medical picture due to a loss of hospital notes. These gaps occur in the critical period during which the two doctors made the decision which is said to be negligent. The gaps have to be bridged by inference. In this task, the trial judge, it must be recognised, had the advantage of seeing and hearing the two medical men whose professional judgement, reached during that period, is impugned. We are not, therefore, at the extreme end of Lord Bridge's 'wide spectrum', though we are near it. There is room for a judgement on credibility for the reasons given by Brandon L.J. in Joyce v Yeomans, at page 556. Speaking of expert evidence, the learned Lord Justice made this comment:

'There are various aspects of such evidence in respect of which the trial Judge can get the "feeling" of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in a witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the transcript, although plain to the trial judge. I mention only two aspects of the matter, but there are others.'

These are wise words of warning, but they do not modify Lord Thankerton's statement of principle in Watt or Thomas v Thomas [1948] AC 484, nor were they intended to do so. The relevant principle remains, namely that an appellate court, if disposed to come to a different conclusion from the trial judge on the printed evidence, should not do so unless satisfied that the advantage enjoyed by him of seeing and hearing the witnesses is not sufficient to explain or justify his conclusion. But if the appellate court is satisfied that he has not made a proper use of his advantage, 'the matter will then become at large for the appellate Court'".

[79]      This area of law has been recently considered again by the House of Lords in Simmons v British Steel plc 2004 SLT 595. In paragraph [9] of his opinion, Lord Hope of Craighead reaffirmed the status to be accorded to the opinion of a Lord Ordinary in relation to matters of fact. He said:

"They (the Second Division) seem not to have appreciated that the advantage which the Lord Ordinary had because he saw and heard the witnesses was not confined to an assessment of their credibility. As Lord Shaw of Dunfermline pointed out in Clarke v Edinburgh and District Tramways Company Limited 1919 SC(HL), page 37, the privileges enjoyed by a trial judge extend not only to questions of credibility: see also Thomas v Thomas 1947 SC(HL) 55 per Lord Thankerton. In this case there were questions of reliability too that had to be considered, especially in regard to the crucial issue as to the timing of the appearance of the pursuer's symptoms after the accident. As everyone knows, the personality and demeanour of witnesses which printed words alone cannot capture plays a large part in an assessment of their reliability. It was the duty of the appellate court to defer to the Lord Ordinary's judgement on the issue of timing, unless the conclusion which he came to was plainly wrong."

[80]      We consider that all of the foregoing observations, particularly in so far as they relate to the assessment of expert evidence, are of importance in the context of the present case, where much of the discussion before us was focused upon the Lord Ordinary's assessment of and decision in relation to the evidence of the expert witnesses, Dr Atkins and Dr Miller. We consider that it is necessary for us to follow the approach described above.

(3) The use of textbooks

[81]     
In the course of the hearing before us much use was made by counsel for the pursuers of extracts from textbooks on medical practice. Indeed, at times, the submissions made to us came to resemble lectures on medical practice. We think it right to emphasise certain points regarding the use of textbooks in the context of a case relating to medical negligence. In the first place, it has to be recognised that a medical textbook, dealing with accepted medical practice, however authoritative it may be and however distinguished the author or authors may be, of itself, possesses no evidential value. Its subject-matter will not be within judicial knowledge. However, a passage from such a book may acquire evidential value to the extent that it is adopted by a witness as representing his opinion, or otherwise dealt with in the evidence of a witness. In the second place, as a result of what has just been said, in the context of an appeal from a decision of a judge of first instance, it is vain to attempt to make use of textbooks which have not been put to witnesses in the case before that judge, so that they may thus acquire evidential status. In the present case, while certain passages from textbooks were put to certain witnesses, others were not, yet they were sought to be relied upon. In the third place, in the course of the hearing before us, discussion developed even in relation to the interpretation of certain passages in these textbooks. We consider that it would be utterly wrong for us to embark upon the business of interpreting the meaning or scope of propositions to be found in medical textbooks. Such matters as that must be the exclusive responsibility of expert medical witnesses, to whom the passages concerned have been put in evidence. In this connection we refer generally to Davie v The Magistrates of Edinburgh 1953 SC 34, per Lord President Cooper at p. 41.

The Approach of the Lord Ordinary to Controversial Matters

(1) The expert testimony of Dr Atkins and Dr Miller

[82]     
In paragraph 90 of her Opinion, the Lord Ordinary explained her approach to the evidence of Dr Atkins and Dr Miller. She there said:

"Having carefully considered their evidence, I ultimately found Dr Atkins' opinion to be less persuasive than Dr Miller's, for two reasons. Firstly, Dr Atkins appeared to have based his views upon his perception of how low in the pelvic cavity the baby must have been. His perception on this matter differed from that of the main eye-witness, Dr Busby-Earle (whose description of the baby's position was not challenged in evidence). As I accepted Dr Busby-Earle's evidence, it follows that I find Dr Atkins' opinion less relevant and less persuasive than it might otherwise have been. Secondly, Dr Atkins was understandably not aware of the full circumstances of Sandy's delivery until he heard Dr Busby-Earle's evidence in court. Dr Atkins' reports dated 15 July 1997, number 7/1 of process and 20 April 2001, number 6/4 of process were based purely on the medical records. These reports suggest that Dr Busby-Earle had diagnosed a compound presentation, and criticise her alleged failure to recognise a shoulder presentation. However Dr Busby-Earle in evidence described findings and a diagnosis amounting to a shoulder presentation. Further, Dr Atkins' report of 20 April goes on to refer to 'a shoulder presentation with a prolapsed arm'. While Dr Atkins disavowed any intention of giving a picture of an arm protruding from the cervix into the vagina (which all the medical witnesses agreed would require a Caesarean section), the wording of Dr Atkins' reports give rise to at least a suspicion that Dr Atkins might have formed a certain view on the basis of a necessarily incomplete and possibly inaccurate factual picture, and that his earlier view might have coloured any subsequent assessment of the case. In the result, therefore, I found Dr Miller's evidence more persuasive".

The conclusion of the Lord Ordinary, expressed in this paragraph, was the subject of extensive criticism, which involved a detailed examination of the evidence of Dr Atkins and Dr Miller. It will be seen that the second reason given by the Lord Ordinary for her preference of the evidence of Dr Miller over that of Dr Atkins is related to the terms of the two reports provided by Dr Atkins before he had heard the account of Dr Busby-Earle's findings given by her. Furthermore, it will be seen that, in the Opinion of the Lord Ordinary, the wording of those reports gave rise to certain suspicions that Dr Atkins might have formed a certain view on the basis of incomplete and possibly inaccurate factual material. As it is stated, that reason appears to us to be based, at least in large part, on conjecture. No doubt for that reason, counsel for the respondents did not attempt to justify the Lord Ordinary's conclusion in this regard, which was, in effect, abandoned by them. In the light of that position and also of the terms in which that second reason has been stated, we consider that it cannot constitute a sound reason for her decision to prefer the evidence of Dr Miller.

[83]     
The first of the Lord Ordinary's reasons is, however, in a different position. Since Professor Calder was not a witness at the proof and, in any event, came to be involved only after the removal of the first named pursuer to the anaesthetic room, the only witness who was able to give evidence concerning the position of the second twin at all material times was Dr Busby-Earle. The Lord Ordinary dealt with her evidence in paragraph 78 of her Opinion, where she observed that, in her view, Dr Busby-Earle was particularly well-qualified and well-positioned to describe and define the position of the baby. As she records, Dr Busby-Earle carried out a vaginal examination and also used an ultrasound scanner; furthermore, she conducted the Caesarean section operation and, not only saw the position of the baby in the course of the operation, but also physically lifted him out in a manoeuvre which was described at page 73 of the medical records, number 6/3 of process, as "easily delivered". The Lord Ordinary records that Dr Busby-Earle gave evidence that the baby was above and some distance back from the cervix and was neither engaged in the cervix, nor impacted in the pelvis. At the proof, her credibility and reliability were not challenged. In this situation, the Lord Ordinary felt able to accept her evidence and to find it established, on a balance of probabilities, that, at the time of Dr Busby-Earle's diagnosis of a shoulder presentation and her decision to administer syntocinon, the presenting part of the baby was near to but above the pelvic brim and was not applied to, nor engaged in, the cervix, nor impacted in the bony pelvis. It should be recorded that, in the submissions made to us, no attempt was made to suggest that those findings of the Lord Ordinary were unsound. Accordingly it is appropriate for us to proceed on the basis that they are correct.

[84]     
Dr Atkins dealt with this matter at pages 267-272 and at 287 of the transcript of evidence. It appears to us from those and other passages that Dr Atkins was, quite simply, unprepared to accept Dr Busby-Earle's own evidence in relation to the matter. At page 287, Dr Atkins said that he considered that the baby was impacted. On the other hand, Dr Miller's position was quite different. In his evidence, he was prepared to accept the description given by Dr Busby-Earle of the position of the second twin, as appears from his evidence at pages 566-570 and in other parts of the transcript.

[85]     
The position of the second twin at the time when Dr Busby-Earle decided to administer syntocinon was, as we understand it, crucial to any analysis of her decision, since, if the baby was impacted, the exercise which she undertook would almost certainly have been vain, whereas, if it were not, according to the evidence of Dr Miller, the course of action which she took was a reasonable one. In any event, the Lord Ordinary, after having heard these two witnesses decided to prefer the evidence of Dr Miller upon a basis including her first reason. Having regard to the respect which is to be accorded to the assessment of the evidence by the judge of first instance, who saw and heard the witnesses, with which we have already dealt, we are not persuaded that it would be proper for this court to interfere with her decision in that regard. To use the language of Simmons v British Steel plc, it is impossible for us to say that the Lord Ordinary's preference of Dr Miller's evidence over that of Dr Atkins is "plainly wrong". Indeed, on the contrary, it appears to us from our examination of the evidence concerned that her decision was sound.

[86]     
In the course of the debate before us, a series of criticisms was made of Dr Miller as a witness. Having reached the conclusion that the Lord Ordinary was entitled to prefer the evidence of Dr Miller to that of Dr Atkins, and having regard to the fact that, accordingly, this court is not in the position of itself conducting a review of the evidence of those two witnesses with the object of reaching its own conclusion on the matter, we find it unnecessary to deal with those criticisms. In any event, we consider that we must bear in mind the warning contained in the judgment of Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority at page 243. There he said:

"I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgement which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."

[87]     
Having considered the evidence of Dr Miller and the position which he adopted in relation to the action taken by Dr Busby-Earle, we are quite unable to conclude that his position cannot be logically supported. Upon the assumptions made by him, which were accepted by the Lord Ordinary, on the contrary, his assessment of the situation appears to us to be rational and coherent.

(2) The finding in paragraph 82 of the Lord Ordinary's Opinion of "No Practice".

[88] In paragraph 81 of her Opinion, the Lord Ordinary narrated that the usual and normal practice for which the pursuers contended in the circumstances faced by Dr Busby-Earle at 8.00 pm on 23 June 1996 was that those circumstances fell to be "treated as an indication for immediate Caesarean section, with all appropriate steps being taken there and then, without delay". As she there observes, the immediacy of the response was fundamental to the pursuers' contention, since it was the delay of some eight minutes in the decision to proceed to Caesarean section which was ultimately criticised. Against that background, in paragraph 82 of the Opinion, the Lord Ordinary concluded:

"Having considered the evidence, I am not satisfied that such a practice has been established. Both Dr Atkins and Dr Miller mentioned internal version as a possible alternative which an obstetrician faced with the rather unusual presentation of the second twin would be entitled to consider and explore. Dr Atkins agreed that a senior registrar such as Dr Busby-Earle, recognising that she had neither the training nor the experience to attempt internal version, would be entitled to call in a more experienced senior colleague. That colleague, having arrived in theatre and having been advised of the situation, might examine the baby's lie, and then might perform an internal version under general anaesthetic, thus achieving the hoped-for vaginal delivery. Alternatively, the colleague might, after examination, form the view that internal version was not feasible, and recommend that a Caesarean section be carried out. Against that background I am unable to accept that there was a usual and normal practice that an obstetrician should treat the circumstances prevailing at 8.00 pm as an indication for immediate Caesarean section. It follows that the first pre-requisite of professional negligence as set out in Hunter v Hanley has not been satisfied, and the defenders fall to be assoilzied".

[89]     
It was contended to us that the Lord Ordinary's findings in this paragraph were not in accordance with the weight of the evidence and that, the evidence showed that a decision to undertake Caesarean section should have been made at 8.00 pm, as opposed to eight minutes later. In reaching our own conclusion on this contention, we think it right to make certain observations about the Lord Ordinary's findings and conclusions in paragraph 82. In the first place, it is necessary to recognise exactly what practice the Lord Ordinary is saying she is not satisfied has been established. The practice to which she refers in paragraph 82 is that said to have been desiderated on behalf of the pursuers in paragraph 81, that is to say, a practice requiring an immediate Caesarean section in the circumstances faced by Dr Busby-Earle at 8.00 pm. It seems clear to us that, in paragraph 82, the Lord Ordinary is not holding that there was no practice to the effect that a Caesarean section might be necessary, in due course, in the event of the steps taken by Dr Busby-Earle not achieving a natural vaginal delivery. Dr Busby-Earle herself dealt with these matters at pages 138-141 of the transcript. She recognised that Caesarean section would be the usual practice in certain circumstances, but that the circumstances which she had found differed from those. She considered that, having regard to the lie of the second twin, with stimulation of the baby's upper limb and some cervical dilation there was a reasonable prospect that the head would fall into the proper place for vaginal delivery. Dr Miller dealt with the matter from page 712 onwards. His view was that normal management would involve a Caesarean section, if the lie of the baby could not be made to be longitudinal. He considered that clinical medicine involved looking at what he described as a living situation and seeing if it was possible to influence it within the bounds of safety and proper practice. He considered that that was what Dr Busby-Earle had done. If, however, an oblique lie could not be corrected and thus natural delivery would be impossible, plainly a Caesarean section was necessary. However, continuing clinical evaluation of the situation was consistent with proper practice.

[90]     
Having regard to the evidence which we have summarised, we consider that the Lord Ordinary was entitled to reach the conclusion which she did that the practice desiderated by the pursuers had not been established. In paragraph 82, the Lord Ordinary refers to the possible use of internal version by an obstetrician faced with the rather unusual presentation of the second twin diagnosed in this case. While we recognise that Dr Busby-Earle herself was not qualified and experienced in performing such a procedure, to the extent that it may have been a recognised option in the situation existing, we consider that it may be seen as a factor undermining the pursuers' contention that there was a practice for immediate Caesarean section in the circumstances existing at 8.00 pm. Finally, at this stage, it is appropriate for us to reiterate that we cannot agree with the deduction made in the last sentence of paragraph 82, for the reasons which we have already explained arising out of the dicta of Lord President Clyde in Hunter v Hanley.

(3) The Lord Ordinary's interpretation of the evidence of Dr Atkins

[91]     
In paragraph 92 of her Opinion the Lord Ordinary reached a view of the evidence of Dr Atkins to the effect that she was not satisfied, on a careful reading of Dr Atkins' evidence, that he had gone so far as to categorise Dr Busby-Earle's acts or omissions as ones which no ordinary competent registrar in obstetrics and gynaecology, exercising reasonable care and skill, would have carried out or permitted to occur. We were informed by counsel for both the pursuers and the respondents that this interpretation of Dr Atkins' evidence was not one which the Lord Ordinary had been asked to adopt. Accordingly, so far as they were concerned, it amounted to a conclusion at which she had arrived on her own account. It was submitted by counsel for the pursuers that, in this regard, the Lord Ordinary had misapprehended the scope of and limitations upon her judicial function and that she should not have erected this conclusion into a basis for her decision. In this connection reference was made to Strathclyde Regional Council v City of Glasgow District Council and the judgment of the Lord Justice Clerk at pages 53-54. In any event, it was conceded on behalf of the respondents that, properly interpreted, the evidence of Dr Atkins did in fact amount to an opinion that the course of action adopted by Dr Busby-Earle at 8.00 pm was one which, to quote Lord President Clyde's words at page 206 in Hunter v Hanley, "no professional man of ordinary skill would have been taken if he had been acting with ordinary care". For all these reasons, we consider that the Lord Ordinary's conclusions in paragraph 92 of her Opinion cannot be supported.

(4) Causation

[92]     
In paragraph 98 of her Opinion, in relation to the matter of causation, the Lord Ordinary said:

"In my view, if the decision to proceed to Caesarean section had been made at 8.00 pm, that was a time at which there was no apparent cause for alarm or concern. There was no reason to suspect or to expect that the baby might be suffering from any form of asphyxia. The evidence established that it is accepted medical practice in the United Kingdom that a not insignificant period of time - often 40 minutes - may lapse between a decision to proceed to Caesarean section and ultimate delivery of the baby. Dr Atkins' view was that he would be disappointed if the time-lapse between decision and delivery were allowed to exceed 25 minutes. Even taking into account Dr Atkins' preferred timetable, I was not satisfied that a decision taken in a non-emergency situation at 8.00 pm would have been followed by the same sequence or timing of events which actually occurred following the decision taken in a situation of emergency at 8.08 pm once an alarm had been raised in the form of difficulty (in) detecting the foetal heart. In other words, I was not satisfied that a decision to proceed to Caesarean section taking at 8.00 pm would, on a balance of probabilities, have resulted in the delivery of Sandy at 8.24 pm or earlier, thus avoiding his death".

In paragraph 99 the Lord Ordinary continues:-

"In the circumstances therefore I was unable to conclude on a balance of probabilities that, had a decision to proceed to Caesarean section been taken at 8.00 pm, Sandy's death would have been avoided. For this reason also the defenders are in my view entitled to absolvitor".

It was contended to us that the Lord Ordinary's decision in relation to this aspect of the case was perverse and involved her indulging in speculation, unsupported by evidence. With that criticism we have come to agree. The facts here were that the second twin was delivered at 8.31 pm, the decision having been made to proceed to Caesarean section at 8.08 pm; thus the period between the making of the decision and the delivery of the baby was 23 minutes. It is true that in evidence there were references to a period of up to 40 minutes which might elapse between a decision to proceed to Caesarean section and ultimate delivery; also Dr Atkins did indeed express the view that he would be disappointed if the time lapse between decision and delivery were allowed to exceed 25 minutes. However, this material was of a general nature and not related to the particular circumstances in the hospital in which the first named pursuer was being treated. There was no direct evidence to suggest that, had the decision to proceed to Caesarean section been taken at 8.00 pm, in the circumstances then existing, as opposed to 8.08 pm, in the circumstances then existing, the sequence of events which would have been followed would have differed from that which actually occurred, following the decision at the later time. In the absence of such evidence we are forced to conclude that the Lord Ordinary's conclusion in paragraph 98 is based upon conjecture and therefore cannot stand.

Conclusions

[93]     
As it was finally presented, the pursuers' case in this action on appeal was to the effect that the delay between 8.00 pm and 8.08 pm, at which later time the decision to proceed to Caesarean section was made, was crucial and had brought about the death of the second twin. The case of negligence against Dr Busby-Earle was that she should not have spent that period of 8 minutes as she did, but should have decided to proceed to Caesarean section at 8.00 pm and given effect to that decision. In these circumstances, in reaching a decision as to the soundness of the pursuers' case, it is necessary to consider what course of action was undertaken between 8.00 pm and 8.08 pm and to consider whether that course was "one which no professional man of ordinary skill would have taken if he had been acting with ordinary care", to use Lord President Clyde's words once more. What was being done during that period was the subject of findings by the Lord Ordinary in paragraphs 84-87 inclusive of her Opinion. We simply refer to the Lord Ordinary's findings in those paragraphs. As she observes, the situation was one requiring Dr Busby-Earle to make a clinical judgment, after weighing up the perceived risks and benefits on the information available. There were both benefits and risks associated with the course of action which she selected, described in paragraph 86 of the Lord Ordinary's Opinion. Dr Busby-Earle's own thinking on the matter is to be found at pages 46-48 of the transcript of evidence. At the time when this course of action was selected, there was no particular emergency; in particular, there was no problem regarding the foetal heart rate. When concern did emerge about the health of the foetus, the procedure was discontinued and a decision made to proceed to Caesarean section. Having regard to the circumstance that the Lord Ordinary has not held proved the practice desiderated on behalf of the pursuers, in our opinion the sole question arising is whether the course adopted by Dr Busby-Earle was one which no professional person of ordinary skill would have taken, if he or she had been acting with ordinary care. In paragraph 91 of her Opinion, the Lord Ordinary concluded:-

"In view of Dr Miller's evidence, and bearing in mind my reservations in relation to Dr Atkins' evidence, I am not persuaded that the course of action adopted by Dr Busby-Earle was one which no ordinarily competent senior registrar in obstetrics acting with reasonable care and skill would have adopted. For this reason also the defenders are entitled to absolvitor".

We have come to be of the opinion that the Lord Ordinary was quite entitled to reach that conclusion on the evidence before her, which she regarded as acceptable. Looking to the evidence of Dr Miller, which the Lord Ordinary accepted and which she was entitled to accept, there was ample support for the conclusion she reached in paragraph 91. In this connection we refer to pages 571, 572, 615, 714, 715, 725, 751, 758, 759, 761, 762, 775-778.

[94]     
For all of these reasons, we have not been persuaded that the result reached by the Lord Ordinary was unsound and accordingly the reclaiming motion must be refused.


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