Author: Miles McCollum, 12KBW Pupil This is a Scottish birth injury case in which the meaning of the applicable NICE guidelines, once again, is reviewed, interpreted and determined by the Court. The case also provides a salutary reminder for the parties to apply the clinical standards applicable at the material time.
On the face of it, the facts of this case disclosed delays in midwifery and obstetric care leading to the birth of a child with avoidable injuries. But two simple findings of fact unravelled each strand of the Pursuer’s case and not a single breach of duty was found. The Pursuer’s error: allowing knowledge of an adverse outcome to influence the analysis of the reasonable standard of care. What was crucial instead was a prospective interpretation of the facts as they arose before the treating clinicians on the pivotal day in question over 15 years ago. This case will serve as a reminder to practitioners prosecuting clinical negligence cases that their scientific evidence must be robust enough to convince the court to apply the Bolitho exception, even in circumstances where adverse findings of fact have been made.
The Pursuer relied on Ms Jean McConville (expert midwife) and Dr Philip Owen (expert obstetrician) and the Defendant relied on Prof Julia Sanders (expert midwife) and Prof Deirdre Murphy (expert obstetrician).
Midwifery care
On 11 September 2010, the Pursuer was 40 weeks pregnant. She was advised on the phone to attend hospital after confirming her waters had broken, and she arrived at the Triage desk of the Royal Infirmary of Edinburgh at around 23.35. She was first assessed by a midwife at 02.15 the next morning, almost three hours after her arrival. “Light meconium” was observed on her maternity pad, at which point cardiotocograph (CTG) tracing of the fetal heart rate and maternal contractions was commenced. The CTG was non-reassuring, and the Pursuer was transferred to the labour ward for monitoring at 02.55.
These facts set the scene for the first dispute in this case. The Pursuer alleged that the Defendant was under a duty to assess her within 15 minutes of her arrival at the hospital, or in any event that the wait of nearly 3 hours was a breach of duty.
A “sharp” dispute of fact lay at the centre of this all – when did the Defendant find out that the Pursuer was presenting with meconium (an indicator of fetal stress)? The Pursuer maintained that: (i) she had told the clinical support worker (CSW) over the phone before arriving at hospital; and (ii) she continued to pass large amounts of black meconium as she waited to be assessed. The Defendant disagreed with these assertions along straightforward lines: (i) the CSW was not qualified to give medical advice, so did not ask medical questions and would have passed any clinical information onto a midwife; and (ii) the medical experts were in agreement that the observation of “light meconium” at 02.15 made heavy, black meconium before this point very unlikely.
The Court preferred the evidence of the Defendant as it had a stronger, more objective basis. And with that finding, the argument that the Defendant should nonetheless have expedited the assessment of the Pursuer was untenable, as there was no guideline applicable in 2010 which supported such a course of action. Though the Pursuer argued that the presence of meconium should have been ascertained sooner by the Defendant in any event, Lady Hood stated in response:
“To ask only whether particular symptoms which were ultimately identified as important might have been looked for at an earlier moment, may involve the application of hindsight.”
The Pursuer failed to establish that the timeframe for initial assessment was below the reasonable standards of maternity care in 2010.
Obstetric care
After the Pursuer had been transferred to the labour ward, the CTG was recommenced at 03.15. Between 03.48 and 04.10, the CTG presented a handful of late decelerations along with reduced variability and small accelerations. By 06.10, the CTG was satisfactory overall and syntocinon was commenced. At 06.42, there was a late deceleration followed by a bradycardia. The syntocinon was stopped and the baby was born by emergency caesarean section (C-section) at 07.31.
The Pursuer alleged that the Defendant’s clinicians had caused delay in the child’s delivery by failing to order an emergency C-section sooner. The allegation rested on the proposition that the CTG should have been classed as pathological from 04.10 onwards.
This complex allegation, on which many days of evidence were heard before the court, largely boiled down to a single question of fact: the correct interpretation of the 2007 NICE Intrapartum Care Clinical Guideline 55, Table 6. In short: did the CTG show enough late decelerations for them to be classed as “repetitive”?
The Pursuer’s expert firstly argued that many sections in the CTG trace could be classed as “shallow” late decelerations. To this the Defendant had a simple response: the notion of “shallow” decelerations was not formally introduced until 2022. The Pursuer also contended that even if there had only been two late decelerations on the CTG (which the Defendant admitted), this was enough for them to be deemed “repetitive”. The Defendant replied that this was not the ordinary meaning of the word.
Again, the Court found for the Defendant on these points. And once the true meaning of the NICE guidelines had been decided, the Claimant’s case on breach of duty evaporated. In reality, a clinician would be reading the CTG prospectively with consideration of the risks of ordering a C-section which was not strictly required. While the CTG was non-reassuring, it remained an option available to the reasonable clinician to keep observing. The Court stated that the Pursuer’s expert was “somewhat dogmatic” and that:
“[his] evidence did at times give the impression of a search, with the benefit of hindsight, for a point when it might be said that the threshold for a caesarean section being indicated had been met.“
The burden on Pursuers in clinical negligence cases is a heavy one. It is only in exceptional cases that a court will reject a defendant’s expert evidence on the basis that it does not stand up to rational analysis (Bolitho). This case was not exceptional.
