Scott v Lothian University Hospitals NHS Trust [2006] ScotCS CSOH

Decision
Legal issues
[33 ] Counsel for the pursuer referred me to Hunter v Hanley 1955 SC 200, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296, Hucks v Cole [1993] 4 Med LR 393, Bolitho v City and Hackney Health Authority [1998] AC 232 and my unreported decision in Honisz v Lothian Health Board [2006] CSOH 24. Counsel for the defenders also referred me to those cases and also to Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. There was no material dispute as to the law; parties differed on how I should apply the law to the facts established by the evidence.

[34] Where, as in this case, the pursuer alleges deviation from normal medical practice, he must prove (i) that there was such a usual and normal practice at the relevant time, (ii) that the doctor had not adopted that practice and (iii) that the course which the doctor adopted was one which no professional person of ordinary skill would have taken if he or she had been acting with ordinary care: Hunter v Hanley, Lord President Clyde at p.206. It is not disputed that in this case the relevant standard of professional person is the standard of a senior registrar in obstetrics.

[35 ] In this case there was conflicting expert medical evidence as to the existence of a normal practice in 1990 and also in 2005 and as to the acceptability of Dr Cooper's decision to attempt the roational forceps delivery in the labour room. As parties referred me to my opinion in Honisz as an accurate summary of the relevant law, I take the easy course of citing what I said in that case:

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

[40] An example of such a rare case is that of Hucks v Cole [1993] 4 Med L R 393, which Lord Browne-Wilkinson discussed in Bolitho. In that case a general practitioner failed to give penicillin to a lady in a maternity ward who had a septic spot and as a result she developed fulminating septicaemia. The defendant knowingly took the risk that the lady could develop puerperal fever because the risk was small and he was supported in his decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the Court of Appeal upheld his decision, Sachs LJ holding that there was a lacuna in professional practice and that the defendant knowingly took an easily avoidable risk which elementary training had instructed him to avoid. As, in the court's judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk."

[36 ] The case of Edward Wong Finance, which Lord Browne-Wilkinson discussed in Bolitho, is consistent with this approach. Professional practice is not conclusive evidence of the prudence of a course of action where that practice, which a profession has adopted as a matter of its own convenience, involves risks that are foreseeable and readily avoided.

Whether the Pursuer has established negligence
[37 ] In this case, there was no dispute between the experts as to the appropriateness of attempting a rotational forceps delivery in the circumstances of Mrs Scott. Their disagreement was as to where that delivery should be attempted. That in turn depended in large measure on their assessment of the risks involved.

[38 ] I do not accept Mr Johnson's assertion that in 1990 there was no school of thought among competent obstetricians that would have sanctioned an attempt to deliver a baby by Kiellands forceps in the labour room rather than in the operating theatre where the baby's head was ROP and the leading part of his head at the S + 1 position. In that regard I accept the evidence of Dr Cooper and Professor Murphy who explained that there were many competent obstetricians who would have attempted a rotational delivery in the labour room in the circumstances which existed in Mrs Scott's case and that they would still do so. I have considered the literature that Mr Johnson produced in support of his views. Those textbooks vouch the danger of failed forceps, advise that forceps be attempted in theatre if the clinician is in any doubt and express views that most occurrences of failed forceps are the result of fundamental mistakes in technique, inexperience or disobeying the ground rules. See, for example, Dewhurst at p.430, Hibbard at p.508, and Turnbull & Chamberlain at pp.847-848. But the failures listed in those texts, such as not recognising a disproportion between the mother's pelvis and the size of the baby, acting before the mother's cervix was fully dilated or failing to observe that the foetus's head was in the OP position, do not apply in this case. It appears that Dr Cooper did not make any of the mistakes identified in the textbooks and it is not clear why Robbie's head did not rotate.

[39 ] I have to add that I was concerned about Mr Johnson's insistence on the accuracy of the diagram referred to in paragraph [22] above and his assertion that there was no obstetrician of any seniority who would agree with Professor Murphy that it was inaccurate. It was evident from the text of the textbooks referred to in paragraph [27] above and Mrs Stacey conceded in her submission that the diagram was inaccurate, as Dr Cooper and Professor Murphy had said. While Mr Johnson had considerable experience as an expert witness, I detected that he had a tendency to assert that his views were shared by the entire obstetric discipline, without putting forward material to support that assertion. In the case of the diagram he was demonstrated to be wrong. In relation to his opinion on the central question of negligence, he spoke of Dr Cooper having broken the rule that if there is any doubt about the success of a forceps delivery, one performs it as a trial in the operating theatre and referred to the textbooks in support of this view. But he accepted that there is never absolute certainty in the delivery of babies and ultimately rested his view on the proposition that while, without the benefit of hindsight, it was more likely than not that Robbie Scott would be delivered safely, there was not sufficient certainty (which he set at over 90%) of that outcome so as to justify an attempt outside the operating theatre. The difference between him on the one hand and Professor Murphy and Dr Cooper on the other was in their assessment of the likelihood of success of the rotational forceps delivery in Robbie Scott's case.

[40 ] I have also had regard to the 2005 RCOG guideline. In section 5.2 it identifies operative vaginal deliveries where the foetus is in the OP position and where there is a mid-cavity delivery or when the foetal head is one-fifth palpable per abdomen as cases which should be treated as a trial and conducted in a place where immediate recourse to Caesarean section can be undertaken. In most cases such a place will be the operating theatre. While taking account of the circumstances which Dr Cooper and Professor Murphy explained were the background to the 2005 RCOG guideline (see paragraphs [17] and [31] above), it appears that there is emerging a normal practice that rotational deliveries of foetuses in the OP position and in mid-cavity are performed in theatre and the clinician who performs such a delivery in the labour ward will require to justify departure from normal practice. Professor Murphy accepted that an obstetrician carrying out such a delivery in the labour room now would require to have a good reason for doing so. She suggested that there were three good reasons: first, where the foetus had already suffered a severe bradycardia, in which case the benefits of speedy delivery would outweigh the risks of failure; secondly, where the mother is pushing well, the baby is relatively small and the clinician knows she can rotate and deliver it; and, thirdly, where the baby is a second twin. Nonetheless, I accept Professor Murphy's evidence that the views which are now expressed in the 2005 RCOG guideline have emerged over time and that there was no such normal practice in 1990. I also accept that in 1990 and now, there were and are responsible and experienced obstetricians who will attempt rotational mid-cavity delivery of a foetus who is in the OP position outside the operating theatre.

[41 ] As I accept that there was a responsible body of medical opinion which would have attempted such rotational delivery in the labour room rather than in the theatre, the central question in this case becomes whether this is an exceptional case where the practice which distinguished medical practitioners have maintained cannot be supported when subjected to rational analysis.

[42 ] As Professor Murphy stated, birth is the most dangerous journey that a human being makes. The vast majority of babies arrive at the end of that journey unharmed. But cerebral palsy is one possible result and it can be a very severe outcome. The task of the obstetrician is to attempt to reduce morbidity in both mothers and babies.

[43 ] In view of potentially catastrophic consequences of prolonged bradycardia, it is understandable that a responsible obstetrician would hold the opinion in more difficult cases that a trial of forceps avoids unnecessary risk and that rotational delivery should not be attempted in the labour room. But it appears to me that another responsible obstetrician may properly balance his or her legitimate confidence of succeeding in a forceps delivery (where he or she has the necessary experience and skill), the expressed wishes (if any) of the mother, the obstetrician's wish to avoid unnecessary emotional trauma where parents are afraid of the operating theatre and the remoteness of the risk against the gravity of the outcome should that risk eventuate. In my opinion these are all factors to be taken into account in the exercise of professional judgement. In this case I am satisfied that Dr Cooper and Professor Murphy were aware of the risks and benefits. This is not a case as in Hucks v Cole where a medical practitioner failed to act in a way that he had been instructed to act in his elementary training nor is it a case like Edward Wong Finance where the practice was adopted simply for the convenience of the professionals. I am unable to conclude that there is no rational basis for the practice which Dr Cooper adopted.

[44 ] Accordingly, I do not consider that Dr Cooper was negligent in her care of Robbie Scott.

Causation
[45 ] I have discussed Professor Murphy's and Dr O'Regan's evidence about the cause of Robbie's cerebral palsy in paragraphs [10] and [11] above. It is necessary now to consider causation in law.

[46 ] Professor Murphy explained in her report that there is a clinical standard, which is not always met, that an emergency Caesarean section should be completed within thirty minutes of the decision to operate and deliver the baby. She referred to the article by Tuffnell and Others mentioned in paragraph [30] above. Mr Bell QC sought to persuade me not only that the defenders were not under a legal duty to deliver Robbie Scott in under thirty minutes but also that it had not been established that he would have been delivered more quickly, so that the damage which he suffered would not have occurred, if Dr Cooper had attempted the rotational forceps delivery only as a trial in the operating theatre. The pursuer does not argue that the time taken to deliver him once the attempted rotational forceps delivery had failed was excessive. But, as Professor Murphy acknowledged, the recommendation of thirty minutes is a standard for the purpose of auditing performance and babies can suffer irreversible damage within that time. In an emergency, such as the one which Robbie Scott suffered, where there is effective circulatory collapse, the task of the obstetrician is to deliver the baby as quickly as possible.

[47 ] I am satisfied that on balance of probabilities the catastrophic collapse in Robbie's oxygen supply occurred at the time and as a result of the attempt to rotate his head with the Kiellands forceps. Professor Murphy, while emphasising that there was no certainty, considered that it was plausible that an acute cord accident, such as a tightening on rotation, caused the bradycardia. Mr Johnson considered that there was a causal link between the rotation and the bradycardia. I am also satisfied that if Mrs Scott had been taken to the operating theatre for a trial of forceps and if the foetal bradycardia occurred during that trial, it is more likely than not that Robbie Scott would have been delivered more quickly than in fact occurred. It is important to recall that the reason that it is recommended that a trial of forceps be carried out in the operating theatre is in order to minimise the time between any failure of the attempted forceps delivery and the eventual delivery by Caesarean section. While Mr Johnson's suggestion, that the time would only have been five minutes, may have been optimistic, I consider it likely that delivery would have been completed in considerably less time than the twenty to twenty-four minutes that passed between onset of Robbie Scott's acute bradycardia in the labour room and his delivery in the operating theatre. Professor Murphy in her report suggested that there might have been a saving of ten minutes. Mr Johnson suggested that the saving would have been in excess of fifteen minutes. As the damage to a foetus from an acute hypoxic insult tends to increase over time, it is likely that the time lost in this case because the attempted forceps delivery was not a trial in the operating theatre made a material contribution to the severity of the brain damage that Robbie Scott suffered.

[48 ] Mr Bell QC submitted that Bolitho supported his position that there was no proof of a causal connection between any negligence in attempting to deliver in the labour room and the adverse outcome which Robbie Scott suffered. In my opinion, Bolitho does not assist his submission. In that case, where the doctor was negligent in failing to respond to a nursing sister's phone call by attending the patient, the issue of causation gave rise to two separate questions. The first question was what the doctor would have done if she had not been negligent and had attended her patient. It was held in answer to that question that she would not have intubated the child and thus would not have prevented his circulatory collapse and cardiac arrest. As a result, the second question arose, namely whether a decision not to intubate would have been negligent. The second question arose because the defendants could not escape legal liability by saying that the damage would have happened in any event because the doctor would have committed another breach of duty. In the present case, once the emergency had arisen in the labour room, it was not negligent for the defenders to take between twenty and twenty-four minutes after the onset of the acute bradycardia to deliver Robbie Scott. But that is not the issue as it is looking at the situation which in fact occurred (ex hypothesi after a negligent act) and not the hypothesis of what would have occurred if there had been no negligence. Here what is relevant is the first question. On the hypothesis that it was negligent not to perform a trial of forceps in the operating theatre, the question would be: what, on the balance of probabilities, would the outcome have been if that trial of forceps had been undertaken and had failed? And I give my answer to that question in paragraph [47] above.

[49 ] If, therefore, I had concluded that Dr Cooper had been negligent in attempting a rotational forceps delivery in the labour room instead of proceeding immediately to a trial of forceps, I would have held on balance of probabilities that that negligence caused or materially contributed to Robbie Scott's cerebral palsy.

Quantification of damages
[50 ] Parties agreed in a Joint Minute that, if the defenders were found liable in reparation to the pursuer, the damages should be £900,000 net of any liabilities that the defenders might have in terms of section 6 of the Social Security (Recovery of Benefits) Act 1997, inclusive of interest to the later of (a) the date of payment or (b) 31 December 2005. It was also agreed that the sum of £900,000 included £50,000 in respect of past solatium and 70,000 in respect of past services which Mrs Caroline Scott provided the pursuer. Provision was also made for the award of interest on the sums of £50,000 and £70,000 in the event that a determination that the defenders were liable to make reparation to the pursuer was made only after 31 December 2005. As I have not made such a determination, I do not need to say anything else.

Conclusion
[51] As the pursuer has not proved that Dr Cooper was negligent in her care for him at the time of his birth, his action fails. I therefore repel the pursuer's pleas-in-law, sustain the defenders' 2^nd and 3^rd pleas-in-law and assoilzie the defenders from the conclusions of the summons.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v Lothian University Hospitals NHS Trust [2006] ScotCS CSOH_92 (13 June 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_92.html Cite as: [2006] CSOH 92, [2006] ScotCS CSOH_92

Scottish Court of Session Decisions