Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 73
A394/07	OPINION OF LORD MENZIES in the cause MARJORY CAMPBELL (A.P.) Pursuer; against BORDERS HEALTH BOARD Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: O'Brien QC; Speir; Morisons LLP (for Messrs Bannerman Burke, Solicitors, Hawick)

Defender: Ferguson QC; Haldane QC; NHS Central Legal Office

5 May 2011

Introduction

[1] The pursuer lives in Galashiels with her husband Ian Campbell and their son Nathan. Mr and Mrs Campbell were married in 1991. In 1997 the pursuer became pregnant. This was her first pregnancy. An early ultrasound scan estimated the date of delivery of her baby as
18 November 1997. No material medical complications were apparent during the course of her pregnancy. She had no significant past medical history and no family history of genetic or neurological disorders. She did not smoke or drink.

[2] On
22 November 1997 the pursuer went into the early stages of labour. At
9.16 pm on that day the pursuer telephoned Borders General Hospital ("BGH") and spoke to a midwife. The contents of this telephone conversation ("the first call") remain in dispute between the parties. The pursuer remained at home after this call. Thereafter she began to experience increasing discomfort and pain. At
3.08 am on
23 November 1997 she made another telephone call to BGH ("the second call"). She spoke to a different midwife on this occasion. Again the contents of this conversation are in dispute between the parties. The pursuer remained at home after this call. At
4.42 am on
23 November 1997 the pursuer made a third telephone call to BGH, and spoke again to the same midwife as the midwife who took the call at
3.08 am. Very shortly after this third call, Mr Campbell drove the pursuer to BGH, where she was admitted at about
5.45 am. She was noted to be draining meconium stained amniotic fluid. A cardiotocograph (CTG) was abnormal, showing a raised fetal heart base line and a variable deceleration. She was transferred to the labour ward where she was seen by Dr Faye Rodger, an obstetrician, at about
6 am or
6.10 am. After Dr Rodger had had a telephone discussion with a consultant, at
6.20 am she decided that the pursuer should have an emergency caesarean section. At about
6.50 am the pursuer was transferred to the operating theatre, and at
7.20 am Nathan was delivered by caesarean section. Nathan has subsequently been diagnosed as suffering from spastic tetraplegic cerebral palsy and neo-natal encephalopathy.

[3] In the present action the pursuer, as parent and guardian of Nathan, seeks damages from the defenders. She avers four grounds of fault and negligence - first, fault of the midwife who took the first call; second, fault of the midwife who took the second call; third, fault of the obstetrician Dr Rodger; and fourth, fault of the defenders in failing to operate and maintain a proper system. The defenders deny liability. The matter came before me for proof before answer. Parties were agreed that at this stage proof should be confined to the issue of negligence, and that issues of causation and quantum should be dealt with (if necessary) at a later stage.

The evidence

[4] I heard evidence from nine witnesses. In addition, a joint minute was lodged (No. 25 of process).

[5] The pursuer stated that in 1997 she was living with her husband at an address in Hawick. This was her first pregnancy; it was uneventful. She had routine attendances with her general practitioner and the nurse at the GP practice, and she also attended at BGH for antenatal visits and classes. She had no relatives with any genetic disorder. She attended for her first ultrasound scan at about sixteen weeks and was told that there was no cause for concern. In October 1997 she attended at BGH because her blood pressure was raised, but she was not required to stay overnight, and she was sent home having been told that everything was fine. She was told that it was anticipated that her baby would be born on about 18 November 1997.

[6] That date passed without incident, and there were no signs of her going into labour for some days thereafter. On Saturday 22 November she had a normal day; she went shopping, and she felt fine. In the evening she was sitting at home watching television. At about
9 pm she went to the bathroom. Having passed water, she noticed some green sticky stuff on the toilet tissue, so she telephoned BGH. This was the first call. She thought that she had the telephone number handy, because she was organised for going into hospital. She thought that she had dialled the general switchboard first and was put through to the labour ward. She told the lady at the other end who she was, that she had been to the toilet, and she had noticed this green sticky stuff. The lady told her that it was a show, and anything could happen in the course of the next week. She did not remember the lady asking any questions. Her husband was in the same room when she was telephoning, and he said that he wanted to bring her into the hospital; the lady at the other end of the phone must have heard this, because she said that there was no point in coming in as they would not look at the pursuer. At this time the pursuer was not suffering any pain - it was only the presence of the green sticky stuff which caused her to telephone the hospital. Her husband was present throughout the call, which ended with the lady telling the pursuer that she should not come in, but if anything happened she should phone back. The pursuer assumed that the lady knew what she was talking about, although she was a bit disappointed as she thought that at last something was happening.

[7] At about
10 pm that evening the pursuer began to develop some pain in her back, which stretched down to the tops of her legs. It gradually grew worse as the night went on - it was not coming and going, but just getting worse and worse. She remembered walking about the house a lot and having the television switched on to distract her from the pain. She did not see any more of the green sticky stuff. Eventually at
3.08 am she telephoned the hospital again, because of the increasing pain in her back and at the tops of her legs; she wanted to find out if anything was going to happen. This was the second call. At the time she did not know if it was the same person that she had spoken to earlier, or not. She explained who she was and explained about the pain in her back and at the tops of her legs. The lady that she spoke to advised her quite a few times to go for a bath, but the lady was not keen for the pursuer to come into hospital, although she did say that she could come in if she wanted to. The pursuer thought that perhaps she was being a nuisance, so she "backed down" and took a bath. She did not remember being asked any questions, although she accepted that it was possible that this had happened. This call was longer than the first call, but still lasted under five minutes. She did not remember if she was asked during this call if there had been any fluid at any time, nor whether her waters had broken. On this occasion she did not volunteer any information about the green sticky stuff, because she had not seen any more of it.

[8] The pursuer's husband had gone to lie down and so was not present during the second call. The pursuer told him that she had phoned the hospital again, and he helped her into the bath. After the pursuer had taken a bath, she found that her pain had not eased at all; it was constant. She told her husband that she was going to telephone the hospital again, and he went out to borrow his father's car. The pursuer telephoned the hospital at
4.42 am, and said that her pain had not diminished and she was going to come into the hospital. Her pain was getting stronger and she was struggling to cope with it. Her husband arrived with the car shortly after she telephoned, and they drove immediately to the hospital, a distance of about
18 miles. They parked the car in the hospital car park, and walked quite a distance to the hospital; when they arrived at the main entrance a lady porter fetched a wheelchair, placed the pursuer in it, and took her in the lift to the area of the labour ward. She was taken to a small room; she stated that she felt quite damp underneath. A midwife (the pursuer thought that it was the same lady she had spoken to on the third call) put her on a bed, removed her tracksuit bottoms and examined her. The pursuer then returned to her wheelchair while remaining in the small room, and the midwife went out of the room for a time. The pursuer's husband came in, and the pursuer told him to get her suitcase from the car because she thought that she would be staying. The midwife then returned; the pursuer was very uncomfortable and did not remember the details of her conversation. She had heard of meconium, but she could not remember if it was mentioned at that time. She was then taken to another room, put in a bed, and a monitor was attached to her stomach to measure the baby's heartbeat. She was referred to her medical records (page 21 of No 7/1 of process) where it was stated that "On removing clothing fresh meconium noted on pad"; she did not remember this, but she agreed that it could be right. She did not remember anyone talking about meconium or leakage, nor did she think that she could have said that meconium had been draining for several hours. She was referred to page 26 of the notes, where a retrospective note dated
20/12/97 records that "On admission Marjorie told us that the meconium had been draining for several hours but she thought that this was a show and not abnormal". She totally disagreed with this record - she knew that she had not told them that meconium had been draining for several hours, and she had never told them that she had had a show - it was the lady who spoke to her at the first call who told her that it was a show.

[9] The pursuer remembered being told something about the baby's heartbeat being raised, and that the decision had been taken to give her an emergency caesarean section. There was "a lot of coming and going" but she was quite relaxed - there did not seem to be any panic going on, and there was no worry or rush.

[10] The pursuer remembered being transferred to another room and given an epidural and then wheeled away again. As she was being taken to theatre the trolley got jammed and she required to be transferred to another one. She described her memory at this time as clear in patches, but once she was in the hospital she let everyone else take over. After Nathan was delivered, he did not cry, and she kept on asking why he was not crying. She saw him very briefly and he was then taken away. Later that day the pursuer and Nathan were transferred to Edinburgh Royal Infirmary, from where she was discharged on 2 December. Nathan was returned to BGH, and was allowed to return home to the pursuer on
23 December 1997.

[11] In cross-examination the pursuer stated that her husband ran to get the car while she was making the third call, and he returned just after she had finished it. Her suitcase was packed and ready at the door, and it took them no more than thirty minutes to drive to the hospital. They arrived at the hospital car park at about 5.20 or 5.30 - despite the time of 5.45 noted in the hospital records, it did not take them as long as an hour to reach the hospital.

[12] In the course of her pregnancy the pursuer attended antenatal classes at the Teviot Medical Centre in Hawick; she did not remember being given a paper headed "Signs of Labour" (number
7/4/4 of process) but the contents of this were discussed at antenatal classes and also on
3 November 1997. She was also given two books, one of which was the "New Pregnancy Book", a copy of which is No 7/15 of process. She was given this by her GP, about six weeks into her pregnancy, and she and her husband read it. She was referred to page 88 of this book; she did not remember reading this page specifically before Nathan was born, but she did remember reading the book. The pain which she experienced on 22/23 November 1997 was different from what was described as Braxton Hicks contractions on that page - the pain was in her back and at the top of both legs, but never extending below the knees. She had no nausea, vomiting or diarrhoea. The antenatal classes were given by Kate McGillivray on the same afternoon each week, and she attended all of them. The pursuer confirmed that she had heard the word meconium before she went to hospital, but she could not remember when, it might have been something she read in the book.

[13] At about
9 pm on
22 November 1997 she was watching television and felt that she had to go to the toilet. After she had finished, she noticed green sticky stuff on the tissue paper. She described this as quite a dollop - a golf ball size, flattened across the tissue. It was only on the tissue, nowhere else. She accepted that if this was meconium, her membranes must have burst or ruptured; she understood this at the date of the proof, but at the time she had not given any thought to this. It was put to her that when she was in the toilet, this was her membranes rupturing, and she observed that it didn't feel any different from just urinating - there was not a lot of fluid.

[14] After she was admitted to hospital she was undressed, and she felt damp at that time. She did not remember the midwife saying anything about meconium at that time, nor did she remember the midwife asking when this happened. It was put to her that she was asked this, and that she replied "That's my show", but the pursuer vehemently denied this - she never used the word "show". She told the midwife that she had telephoned because of the green sticky stuff; she did not mention a show in hospital. She did not remember telling the midwife who removed her clothing and who saw a discharge that it was this discharge which caused her to phone the hospital in the first place.

[15] When she first saw the green sticky stuff at home, she could not remember whether she spoke to her husband about it or showed it to him. When they first went to see a lawyer her husband said that he had seen green sticky stuff on her hand and some trickling down her leg, but she did not remember this herself. She thought it was her decision to make the first call. The telephone was in the hall; her husband came through to the hall with her and was with her when she telephoned. She did not remember showing him anything, but he was possibly correct. She didn't think that her labour had started - she had no pain, and the only reason she made the first call was the green sticky stuff. She did not know if the woman at the other end of the phone was a midwife or not, but she spoke confidently. The pursuer told her that she had been to the toilet and had seen this green sticky stuff, and the lady said it was her show and anything could happen. The pursuer was very positive that she did not mention a show - this was raised by the lady on the other end of the phone. The pursuer was not in any pain and she did not know if her membranes had ruptured. Although she did not remember being asked about these matters, she assumed that she was.

[16] The pursuer was shown page 39 of No. 7/1 of process. She confirmed that she was not bleeding at the time, that the midwife must have asked about this, and that she replied that she was not. She assumed that the midwife had asked her if she had any contractions; at this stage she was not in pain, so the note that there were no contractions was correct. She could not remember if the midwife asked if her waters had broken, but she assumed that she did ask, hence the note "0 SRM". The word "show" was not a word used by the pursuer. She told the lady that she had this green sticky stuff after she had been to the toilet; the lady said this was a show, and anything could happen in the next week. The pursuer did not mention a show during any of her calls to the hospital nor when she came into the hospital. She did not accept that it was possible that all she had described in the first call was a discharge: she was positive that she told the lady it was green sticky stuff.

[17] The second call was made after her husband had gone to bed. It was her recollection that the pain started at about
10 pm, and it gradually became worse throughout the night. In the course of the second call she was advised to have a bath - this advice was repeated on a few occasions. She did not remember any mention of paracetamol. The lady told her that she could come into hospital if she wanted to, but the pursuer gained the impression that she was being a nuisance - it was obvious that they didn't want her to go in, so she backed down. She did not say that her pain was coming and going - it was constant. The pursuer was keen to come in - it was the lady at the other end of the phone who was not keen to let her do so. She agreed to phone back if she had any worries. The pursuer was asked if the lady refused to allow her to attend hospital, and she replied that she did not, but she did not encourage the pursuer to attend. The pursuer was shown a copy of the original letter from the solicitors then acting on her behalf intimating the present claim in December 2004 (No. 7/6 of process); she could not remember exactly what she said to her solicitors, but she agreed that the lady did not refuse to allow her to attend at the hospital.

[18] Eventually the pain became too much for her and she made the third call; the note of this call at page 39 of 7/1 of process is accurate. The pursuer accepted that there was no fourth call - it had been her recollection that she had phoned the hospital four times, but on checking her telephone records after the present action was raised it was established that her recollection on this was wrong.

[19] After the pursuer arrived in the hospital, she was transferred from the small room to another room for a CTG, and from there to receive an epidural, after which she was taken to theatre. She accepted that she might be wrong in her recollection of only having had a CTG scan in the second room - her memory of events in hospital was a bit hazy at times. She did not remember an abdominal examination, but she did remember an internal examination and being told that she was not much dilated. She told her husband to get her suitcase from the car before she was transferred from the first room. He was with her in the second room when the CTG monitor was on. She remembered signing a consent form, and confirmed that the signature on the form which was page 34 of number 7/1 of process was hers. She remembered being shaved and getting an epidural but she did not remember going to the toilet, she did not remember a tube being put in the back of her hand nor being put into a theatre gown. She remembered the trolley jamming on the way to the theatre and she thought it had jammed on rails on the floor, although she didn't see the rails because she was flat on her back. They were trying to push the trolley, and she assumed that it was jammed on something on the floor. She had no reason to dispute the record regarding the trolley jamming. She was sure that she was not attached to the CTG monitor until she went into the second room. She remembered the belt being put on her once and taken off once, and the unit sat on her stomach with the machine beside her.

[20] In re-examination she observed that if she had been asked during the first call if she had had a show, she would have said that she had this green sticky stuff after she had been to the toilet, and what was it? If the midwife had asked her whether the discharge was a sticky pink mucus, mixed with a little blood, she would have replied that it was not, it was green and sticky. It was difficult to describe the colour of green - it wasn't light or dark, but more towards a middle to dark colour of green. She was one hundred percent confident that she told the midwife during the first call about the green sticky stuff - she said "I know that's what I told her".

[21] Mrs Margaret Anne Davidson was aged 53 and a senior midwife in the labour ward at BGH. She qualified as a midwife in 1982 and obtained a BSC in midwifery in about 2004. She had been the midwife in charge of the labour ward at BGH since 1988. In 1997 there were about 950 babies born at BGH; by 2011 this figure had risen to about 1200 babies per annum.

[22] The layout of the labour ward in 1997 was one admission room and five labour rooms. The admission room had one bed. A woman arriving at the labour ward would come to the admission area and press a bell; she would be taken into the admission room where a history would be taken from her, a vaginal examination carried out, and a CTG scan routinely carried out. Thereafter she would be taken to a labour room (or if appropriate, sent home). In 1997 if a woman telephoned the labour ward because she thought she might be going into labour, there were three places at which the call might be taken - at the front desk, or at the midwife station, or at the Sister's office. There was no system whereby a specified midwife dealt with phone calls - a midwife or maternity care assistance or doctor would answer the call, depending who was available at the time. On each shift there would be three midwives on duty (which figure included Mrs Davidson herself); if there were more than three deliveries happening at one time, a midwife from the postnatal ward would be called in to help.

[23] Mrs Davidson had no knowledge of the pursuer before
22 November 1997. She answered the pursuer's first call, which she thought would have been on a direct line to the labour ward (although looking at page 12 of the medical records, she accepted that perhaps the call came through the central switchboard). She had no recollection of this call, because it was so long ago. She could not tell what was said in the course of it, although she made a note of what was said. She confirmed that the first part of page 39 of the medical records was in her handwriting and was her note. Those parts relating to the second and third calls were not in her handwriting. She could not remember where she was when she took the call. She was asked if she was busy at the time, and she replied that, having looked at her notes, the labour ward was not busy - there was only one lady in labour and one postnatal case. She could not remember anything about the entries which she made on this form, nor what made her write down these symptoms; she could not remember if someone handed her the phone or she picked it up herself, nor could she remember if she had the pursuer's records to hand. She would normally fill in the patient's address on this form, but she did not do so on this occasion. From looking at the note, she believed that she would have asked the pursuer if she was suffering contractions, whether her membranes had ruptured and whether she had any bleeding. The word 'show' was an indication that the pursuer had a show, and the fact that the word was placed in quotation marks indicated that this was confirmation from a conversation which Mrs Davidson had concluded that she had had a show, or else that the pursuer had told her that she had had a show. From the notes, she concluded that she had suggested that the pursuer should stay at home. Mrs Davidson was not involved in either the second or third calls.

[24] It appeared from the medical notes that the pursuer arrived at the labour ward at
05.45 am; Mrs Davidson was not initially involved, but became involved at about
05.55 am. She did not remember the pursuer, and her evidence relied on the notes. She did not remember if the pursuer reported to anyone that meconium had been draining for several hours. When Mrs Davidson first saw the pursuer she was in the admission room. Mrs Davidson reviewed the CTG scan, moved the pursuer to a labour room, and asked the registrar, Dr Rodger, to attend. Dr Rodger did attend - Mrs Davidson remembered this. Dr Rodger reviewed the CTG scan, examined the pursuer, decided that the pursuer should undergo a caesarean section, and phoned the consultant; the CTG was non-reassuring, the pursuer was not in labour, and she was draining fresh meconium. Dr Rodger came back into the room and said it was to be an emergency caesarean section; this was the doctor's decision.

[25] Mrs Davidson helped prepare the pursuer for theatre, but was not involved after she was taken to theatre.

[26] None of the notes on page 21 of the medical records were made by Mrs Davidson, but she thought that the timings were probably correct because midwives are very good at documenting times. Most of the notes on page 25, dated
10/12/97, were in Gaynor Thomson's handwriting, although some (under the time 06.10) looked as if they might have been written by Dr Rodger. Mrs Davidson did not hear what happened after the pursuer left the labour ward, and to the best of her knowledge there was no perinatal meeting some days later. Under reference to the last entry on page 26 of the notes, she stated that she did not remember the pursuer saying anything about meconium having been draining for several hours, nor did she remember the pursuer saying that she thought it was a show.

[27] The telephone records relating to the first call indicate that it lasted one minute and 24 seconds; Mrs Davidson was asked to comment as to whether this was quite a short call in these circumstances, and she replied that there is a set of routine questions which are asked of women when they telephone asking if labour has begun, and once answers are given a decision is made. She could not remember whether she had asked the pursuer if she had felt any fetal movement, although it would be routine to do so; she would normally record this, and she did not do so on this occasion. She could not remember whether she made this note while the pursuer was speaking to her on the telephone, but she would usually do so. She was asked to explain the discrepancy between the agreed time of the first call, i.e. 21.16, and the time which she noted on the form, i.e. 21.30; she answered that she may have taken the call in the Sister's office, where there is no clock on the wall, and midwives do not wear watches, or she may have been called away for an urgent matter so the note may have been written later (but not as late as 22.00, because it would not take her that long to help another midwife or give advice).

[28] If a patient telephoned and said that she had some kind of discharge, Mrs Davidson stated that she would ask what it looked like - she would ask the woman to describe it. She would be looking to see if this was a show. A show can be a clear mucus discharge, which may have speckles of old blood or little specks of fresh blood. If the woman said that she had a green discharge, Mrs Davidson would ask if her membrane had ruptured, and would ask her to come into hospital; this was a routine question in 1997. If a woman said that she had a green discharge and she was not told to come into hospital, Mrs Davidson agreed that this would be absolutely unacceptable.

[29] In cross-examination Mrs Davidson stated that in 1997 there were three small car parks at BGH, the furthest of which was about four minutes walk from the hospital. On arriving at the main doors, a patient would walk about
100 yards along a corridor to a staircase or lifts; the labour ward was on the third floor, about 30 seconds walk from the lift. Any woman who might be in labour would be assessed in the admission room (unless she was in the very advanced stages of labour); there was a CTG machine in the admission room, and one in each of the labour rooms. To reach the operating theatre from the labour ward it was necessary to walk down a corridor, past the lifts and along the main corridor - a distance of about
100 yards.

[30] Mrs Davidson was asked to review the pursuer's CTG trace at about 05.55; she saw the pursuer in the admission room, before Dr Rodger saw her. Mrs Davidson was involved with the pursuer's care from 05.55 until the pursuer left the labour ward for theatre at 06.50. She could not remember whether the CTG machine was moved from the admission room to the labour room with the pursuer, but she thought not - it was probably disconnected and the pursuer was attached to a different machine in the labour room.

[31] Dr Rodger took the decision that the pursuer should have an emergency caesarean section because she was not in established labour - her cervix was
2 centimetres dilated, the CTG trace was not reassuring and she was draining meconium. The definition of being in established labour in 1997 was when the cervix was dilated 3-
4 centimetres. On abdominal palpation, the baby was noted as "long lie" (i.e. not oblique or cross lie), cephalic (i.e. the head was presenting), 2/5s palpable (i.e. the head had not descended fully) and the head was "ROP" (i.e. right occipital posterior). The ideal position is occipital anterior; ROP can cause problems for the mother, labour can be very long and can cause pain in the lower back and into the mother's legs. The CTG scan showed a tachycardic trace - i.e. the fetal heart rate was faster than it should have been.

[32] Mrs Davidson stated that as at the date of the proof she had been practising as a midwife for almost 29 years. She started nursing training at Queen Elizabeth Hospital, Gateshead in 1972, and carried out her midwifery training at Sunderland Royal Infirmary in 1981/82. After a year as a community nurse/midwife in Hawick, she was a nursing sister from 1984 and moved to BGH in 1988. She had answered telephone calls such as the pursuer's first call often - many hundreds of such calls over the years. She trained regularly and teaches other midwives; she runs three obstetric emergency study days every year.

[33] Mrs Davidson reiterated that she did not remember her telephone conversation with the pursuer at all. She inferred from her notes of the first call that she asked some questions of the pursuer. She was asked why she placed the word show in inverted commas, she replied that she would have asked "Have you had a show?" and that would be a confirmation from the mother. She would put it in brackets, she would deduce it was a show. She would write "to stay at home" because she would have discussed this with the pursuer, and the pursuer would have assented to it. She would have asked if the pursuer had had any bleeding; if the pursuer had replied that she had, she would have asked how much, but if she said no, that would be an end of it. She would ask if the pursuer's membranes had ruptured, or had her waters gone; if the pursuer replied confidently in the negative, she would note this. As a result of her experience Mrs Davidson was able to get an impression from the way a woman answered these questions of her level of confidence and understanding of the questions. If she was unsure that the woman understood the questions, Mrs Davidson would have a conversation in depth to be sure that she understood.

[34] Mrs Davidson was asked how she would question a woman about a show; she replied that she would say "Have you had a show?". She could not remember how the pursuer answered, but she deduced from the fact that she had placed brackets around the word show that she had had a show. She would be satisfied that the pursuer understood what was being talked about, which is why she bracketed the word; if she had not been satisfied, she would have asked more questions in depth. In 1997 expectant mothers were given information about labour - they were given a book (number 7/15 of process), they were offered parent classes, and the community midwife would normally describe the signs of labour to them. She agreed that this process of education allowed expectant mothers to understand the questions which she was asking them, and to give her an informed answer. If she asked an expectant mother if she had had a show, she would expect her to know what was being talked about. If there had been anything different to a show, she felt sure that she would have noted it. If the pursuer had reported finding a green sticky substance on the toilet tissue having gone to the toilet, Mrs Davidson was sure she would have noted it, and asked her about the colour, quantity and consistency. She would want to know if it was meconium. Without any shadow of a doubt she would invite the lady to come in to hospital - a green mucousy sticky discharge was important, because it meant that the membranes had ruptured and was potentially meconium. If this had been reported by the pursuer, Mrs Davidson would have documented it and asked further questions, and invited her to come into hospital. There was no reason why the pursuer should not have come to hospital - the midwives never refuse a mother who wants to be checked over, and they would have welcomed the pursuer.

[35] Mrs Davidson helped with the preparation of the pursuer for theatre. These preparations included making sure that her blood pressure was within satisfactory limits, inserting a cannula in her arm, making sure that she was not in labour, partially shaving her and catheterising her, getting the father ready for theatre and placing the mother in a theatre gown. Consent to surgery required to be obtained by medical staff. Medication had to be administered - both sodium citrate and ranitidine. The anaesthetist also required to ask the patient if she had any relevant history, and carry out checks before anaesthetic was administered.

[36] In re-examination Mrs Davidson confirmed that if a woman telephoned and had no contractions and had a show, the normal advice would be to stay at home. Her evidence was based on what she would normally say, and on what she would normally document. It was put to her that the pursuer told her about the green sticky stuff, and she replied that if that was the case she was sure that she would have documented this - she knew the difference between a show and a ruptured membrane/green discharge.

[37] Timothy John Regan was aged 42 and had practiced as a midwife since 1992. Since April 2006 he had been employed as a midwife/sonographer by the radiology department of Withybush Hospital, Pembrokeshire. In 1997 he was delivering babies and was able to speak to the standards of practice to be expected of midwives at that date. His curriculum vitae was number 6/14 of process, and he spoke to his report number 6/10 of process.

[38] Mr Regan was shown the record of the first call (at page 39 of number 7/1 of process) and observed that it would be normal to take a note of the woman's address, date of birth and contact number. He would expect a note such as this to be made at the time of the call, or within five or ten minutes after it. It would be a standard question to ask if the woman had had any type of vaginal loss, even if the woman did not volunteer this information. If the woman said that she had had a show, or described what was clearly a show, it would be quite proper advice to tell her to stay at home. If the midwife was satisfied by the description that this was a show, it would be quite acceptable simply to write "show", but he would expect the midwife to ask questions about the colour and consistency of the discharge, particularly with a first time mother. This is something which should be explored, particularly if there was a description of green discharge. An ordinarily competent midwife knowing that a woman was losing green discharge in late pregnancy would advise her to attend the maternity unit for review.

[39] Mr Regan was of the opinion that the pursuer's waters broke probably just before the first call. He reached this view partly because of what the pursuer said about the green discharge, and partly because a baby in the occipital posterior position commonly results in the waters breaking before contractions start. The note on the maternity services postnatal card (Appendix 3 to his report) to the effect that the period from rupture of membrane to delivery was 1 hour 35 minutes was unlikely to be correct.

[40] Turning to the second call, Mr Regan noted that there was nothing on the note of the call to indicate that the pursuer was asked about vaginal loss. This was a routine question which should have been asked - the second midwife should have asked the same set of questions as the first midwife, and should have recorded answers about vaginal loss, SRM, bleeding and fetal activity. There was no record of any of these questions being asked or answered.

[41] The midwife's notes after the pursuer was admitted to the labour ward (at page 21) record the pursuer's cervix dilated 1-
2 centimetres; this means that she had not reached the stage of active labour, which was defined as the cervix being dilated by more than
3 centimetres. The note recording "fresh meconium draining" suggested a green discharge, freshly passed by the fetus (old meconium being usually brown). Mr Regan was shown the book, number 7/15 of process, and confirmed that this was routinely given to pregnant women. It extended to some 136 pages - some women read it and understood it, and some did not. He was shown the report by Margaret Leonard (number 7/16 of process); he agreed with the view expressed at the first bullet point on page 8 of that report, and also with the expression of normal practice in the second bullet point of section 6 of the report on page 8.

[42] In cross-examination Mr Regan stated that he was familiar with NICE clinical guideline 55 - intrapartum care (number 7/24 of process) which was issued in September 2007. He agreed that it was arguable that the pursuer had not even reached the latent first stage of labour, as her cervix had not dilated up to
4 centimetres and there was no evidence of painful contractions; she had certainly not reached the active stage. Mr Regan agreed that since he qualified all his experience had been in one hospital, and that since 2004 he had worked mainly in ultrasound sonography, but he had continued to be involved in the delivery of babies infrequently since then. The hospital where he worked was not a big hospital, and he worked as a band 7 midwife - there were three midwives more senior than him at his hospital, and he was not at managerial level. Before 2004 he worked mainly in a labour ward. He had prepared one or two medico-legal reports each year since 1998, and always for pursuers. He had read Professor Elder's report before he had completed his own report. He agreed that in his experience women could confuse spontaneous rupture of membranes with urination and it was possible that the pursuer did so, but seeing meconium must mean that the membranes have ruptured. In the course of a telephone call, if a midwife asks a woman if she has had a show and the woman says yes, and the midwife is satisfied that the woman knows what she is saying, there was no need to investigate that matter further. In his experience if an expectant woman reported a green discharge to an experienced midwife, this would be noted - given its potential significance, Mr Regan agreed that it was extremely unlikely not to be noted. If the midwife has noted "0 SRM" in addition to "show" he agreed that this would allow the midwife to exclude the possibility of meconium, depending on the woman's understanding, because the two are incompatible.

[43] Turning to the second call, Mr Regan agreed that the second midwife would be entitled to assume that her senior midwife had asked the correct questions at the first call, and that her note accurately reflected the discussion and showed that the first midwife was satisfied as to the pursuer's understanding of the questions put to her. A complaint of constant pain could not be contractions; pain in the back coming and going could be caused by contractions, but not necessarily so. It was usual to note negative findings on a second call such as this; it would be consistent with good practice for the midwife who took this call to ask if there was any SRM, but Mr Regan would have expected her to note the response, even if it was negative.

[44] In re-examination Mr Regan stated in relation to the first call that for a first time mother phoning to the labour ward, if a woman said that she had had a show, the midwife would normally ask what colour it was. If the woman said that she had a discharge, the midwife would ask her what was its consistency and colour. It would not be proper for the midwife to assume that the woman had read the booklet on pregnancy which had been provided to her, because not all women do read this. It would be acceptable for the midwife to record the woman as having had a show if the woman stated that the discharge was clear and slightly bloodstained, but it would be necessary for the midwife to find out the colour and consistency of the discharge, otherwise she could not be certain that the woman knew what she was talking about. To fail to do this would not be proper practice. If there had been a discussion about what a show was, it was unlikely that the woman would agree that a green discharge was a show. He would not expect a woman to confuse a green discharge with a pink one.

[45] Regarding the second call, Mr Regan would expect the midwife to ask the woman about any further vaginal loss and fetal activity; if she failed to ask these questions, this would fall below the standard of care to be expected of a competent midwife. If she did ask these questions, he would expect the answers to be noted, even if they were in the negative. In this case the fetal presentation was consistent with pre-labour rupture of the membranes, and this supported the pursuer's version of events. If the pursuer did not volunteer information about the qualities of her discharge, Mr Regan would expect the midwife taking the first call to ask about these, and he would also expect the midwife taking the second call to ask about these.

[46] Professor Murdoch Elder was aged 73. He had been emeritus Professor of Obstetrics and Gynaecology at Imperial College School of Medicine, London, since 1998, when he retired from active practice. Between 1978 and 1998 he was Professor of Obstetrics and Gynaecology, University of London at the Royal Post Graduate Medical School: Institute of Obstetrics and Gynaecology, Hammersmith Hospital and Imperial College School of Medicine. His curriculum vitae is number 6/15 of process. He retired from active practice in 1998 and last delivered a baby in that year, but he was actively involved in delivering babies in 1997 and was in a good position to speak to hospital procedures and practice in that year. In 1997 the number of babies delivered in Hammersmith Hospital was just under 2,000, but in terms of complicated deliveries and problem cases this was more equivalent to a hospital with 6,000 deliveries per annum.

[47] Professor Elder spoke to his report (number 6/9 of process). The information contained at paragraph 3.4 came from the pursuer - Professor Elder spoke with her at some length about ten years before the proof. Professor Elder had given lectures to midwives, and was in a position to state what an ordinarily competent midwife should have said in the course of the first and second calls, particularly when this involved such basic fundamental obstetric practice. With regard to the period after the pursuer was admitted to hospital, Professor Elder explained that CTG traces normally show a drop in fetal heart rate at the time of a contraction, caused by the baby's head being squeezed. He was referred to pages 40-42 of the notes, which showed a late deceleration in fetal heart rate after contraction. He stated that this indicated that the cardiac centre in the baby's brain stem was not getting adequate oxygen and responding sluggishly; this was quite a good indication of early problems of shortage of oxygen.

[48] The decision to deliver by emergency caesarean section at 06.20 was correct; the combination of meconium stained liquor together with a late deceleration in fetal heart rate indicated that the baby was distressed and needed to be delivered as soon as possible. However, the elapse of one hour from the decision to carry out this procedure to the time of delivery, in the situation of a distressed fetus, seemed an unnecessarily long time to him - the current advice was that thirty minutes should be the maximum between decision and delivery. A paper published in 2004 concluded that thirty minutes should still be the guideline for maternity units where a baby needs to be delivered quickly. This guideline was in place in 1997 - he was not sure if it was written down in black and white, but obstetricians in practice observed a maximum of thirty minutes from decision to delivery where there was urgency. In a case like this he was in no doubt that in 1997 thirty minutes would be the maximum. Professor Elder stood by the observations which he made at paragraph 5.11 of his report regarding the note in the medical records dated
20/12/97, which he continued to maintain indicated "passing the buck onto the patient"; perinatal meetings were notorious for one side blaming the other for any problems. This was a public "washing of hands" of the problem.

[49] Professor Elder was referred to paragraph 6.4 of his report, in which he observed that:

"Fetal distress was diagnosed promptly after admission but a delay of thirty five minutes to decide what to do and a further one hour before delivery for fetal distress took place was a third serious breach of duty of care. Normally competent obstetricians of a junior or senior level would not take one hour thirty five minutes from admission to delivery for a case of obvious fetal distress unless there were mitigating circumstances, which did not seem to be present in this case apart from the minor episode involving the operating table".

He explained that the obstetrician had responsibility because the obstetrician drove the nature and speed of the care. It may not have been Dr Rodger's fault - perhaps he was being over critical - it may have been other factors beyond her control which caused the delay. In a well run unit, there will be a complete scheme with everyone having his or her own responsibility, but Professor Elder described the obstetrician as the "captain of the ship". If she pressed the button and nothing happened because of delays beyond her control, this would be the fault of the system, and the hospital managers. The person primarily responsible was the obstetrician, but if she was pushing for a caesarean section to be carried out as a matter of urgency one would look to the management for an explanation. In this case, the elapse of one hour between the decision to operate and the time of delivery was not an acceptable passage of time, unless a reasonable explanation was given. Professor Elder confirmed that he had read the reports from Mr Regan and Professor Sir Sabaratnam Arulkumaran, and he agreed with the conclusions of both of these.

[50] In cross-examination Professor Elder confirmed that he was first instructed to give an opinion in this matter in about 2000, and he met both the pursuer and her husband together in a solicitor's office at about that time. The pursuer did most of the talking, with he husband remaining fairly quiet. Professor Elder's understanding of what was said during the phone calls came solely from the pursuer, and her husband gave no independent account of any of the calls - Professor Elder did not know if Mr Campbell heard what the pursuer was saying in the first call, and did not remember him saying that he had heard this or that. Mr Campbell told Professor Elder that he thought that his wife should have been admitted to hospital after the second call as she was in pain - on the balance of probabilities Professor Elder thought that he was not fast asleep in bed at this time. Professor Elder remembered the pursuer telling him that she first noticed a green sticky discharge when she went to the toilet, wiped herself and saw a green discharge on the tissue; he could not remember if she said that she had told her husband. It was the presence of this discharge which prompted her to call the hospital, and she told him that they were not interested - he remembered her telling him "They just gave me the brush off".

[51] It appeared from the note of the first call that the midwife had elicited some information from the pursuer. The writing down of "show" amounts to a diagnosis, which can only be made from information regarding the colour and consistency of the discharge. If the midwife is going to write "show" on the note, she would have to ask the colour of the discharge; if she was told that this was green, she should not tell the woman to stay at home. Professor Elder was concerned about the brief duration of the first call - he did not believe that 84 seconds was enough to elicit the necessary information from the pursuer, consider it and give the necessary advice, although he would defer to a midwifery expert on this point and agreed that the views of a midwife on this point were preferable to those of an obstetrician. He agreed that the hospital in which he had practised from 1966 until his retirement in 1998 was a regional referral centre and a centre of excellence for both obstetric and neonatal care. By 1997 he was at the peak of his career, he was dealing with the most difficult cases and had a "high risk practice". He accepted that this was different from BGH, although he had had experience earlier in his career of practice in comparable hospitals; in any event, the diagnosis of a show is so basic that he was well able to express an opinion on it. He was referred to the advice for expert witnesses in cases of cerebral palsy at pages 10/11 of number 6/18 of process, and he agreed that this was generally quite sound advice. He had given expert evidence in court on five occasions since 1998, and was familiar with the English protocol on expert witnesses. Although he had not referred to any learned papers in support of his views, the matters on which he had expressed an opinion in his evidence were so basic that there was no need for him to do so - Professor Symonds in his work "Labour Ward Management" says that thirty minutes is what should be aimed at. He was referred to an extract from pages 500/501 of "Best Practice in Labor Ward Management" (number 6/16 of process) which was published in
2000 in which it is stated that "It is generally accepted that if delivery by caesarean section is necessary, a time lapse of thirty minutes in which to organise the anaesthetist and the theater is acceptable"; he observed that he had this book in his own possession and it was a very good guide for advising practitioners. He accepted that this related to a time lapse between decision and going to theatre, and that it followed that the time lapse from decision to delivery would be longer than thirty minutes, but not by very much. The reference at page 99 of number 7/15 of process to the operation taking about thirty to forty minutes is not to the time of delivery, but to the conclusion of the whole operative procedure including suturing. Professor Elder was absolutely certain that in 1997 it was universal accepted practice to be below thirty minutes from decision to delivery where the baby needs urgent delivery.

[52] Professor Elder was referred to "Good Practice Number
11" dated April 2010, published by the Royal College of Obstetricians and Gynaecologists ("RCOG") and a paper published in the British Medical Journal in March 2004 "National Cross Sectional Survey" (numbers 7/22 and 7/23 of process); although the former described a decision to delivery interval ("DDI") for caesarean section for fetal compromise of thirty minutes as a "target" and as "an audit tool", and the latter concluded that it was not an absolute threshold for influencing baby outcome, Professor Elder took from these papers that a DDI of thirty minutes for cases of fetal compromise was a highly desirable thing to aim at. The latter paper recorded the opinion of the authors that "The thirty minute DDI should remain as the benchmark for service provision for caesarean sections of grade 1 and grade 2 urgency". Although the standard being considered in this paper was formulated in 2001, this was merely a reaffirmation of the standard which had been in place since the 1960s when Professor Elder was training. The classification of caesarean sections in 1997 into "elective" or "emergency" was different from the classification set out in the April 2010 Good Practice paper, but applying the more modern classification to the circumstances of this case he would classify the degree of urgency in this case as category 2. In the old classification, it was an emergency, but not a "crash". He accepted that a great deal depended on the nature of each case.

[53] Professor Elder agreed with the conclusions on negligence stated in Professor Arulkumaran's report. When the pursuer told him the circumstances of this case, she said that the trolley taking her to theatre got stuck in a door, but she made no mention of rails on the floor. Professor Elder agreed that the conclusions in his report depended on the court accepting the pursuer's version of events, and he agreed that the question of whether the standard of midwifery fell below the acceptable standard is a matter for a midwife. He was influenced by the pursuer saying that she had got "brushed off", and the duration of the first call was so short that it suggested to him that the midwife had not obtained the basic information.

[54] Professor Elder was referred to NICE clinical guideline 55 (number 7/24 of process) and he agreed that there are three stages of labour, and that each of the first and second stages could be divided into passive and active labour. At the time of the first call the pursuer was not in labour. When she was examined in hospital she was in the latent first stage of labour, and she never got beyond that stage. He was asked to justify his assessment, in paragraph 5.7 of his report, that "On the balance of probabilities the unpredictable problem with the operating table would not take more than five minutes to sort out", and he replied that he was assuming that the table had been wedged; he had been in a situation where a table had become stuck, and it took much less time to unstick it. He accepted that the last sentence of paragraph 5.11, with its reference to professionals passing the buck onto the patient, may be "a little out of order"; he had no evidence of collusion, but it was an extraordinary thing to write in the case notes. He thought that the last entry on page 26 of number 7/1 of process was a fabrication, passing the buck - he did not think for one minute that the pursuer was draining meconium for hours at home. He had never heard of a midwife ignoring a report of a green discharge which could be meconium, and he agreed that this was pretty elementary. The period with which he really took issue was the time from 06.20 to 07.20; although the start time was noted at
07.00 in the intra-operative nursing record (page 62 of the notes) it depended on what they were starting at that time. He agreed that all the procedures set out on page 61 took some time, and in addition the pursuer would need to be prepared for the anaesthetist and anaesthetic would require to be administered.

[55] In re-examination Professor Elder confirmed that DDI ends when the baby is delivered, which could be as soon as two minutes after the operation started. Once the anaesthetic is in place and everyone is ready, it should take five minutes at the most until delivery. He reiterated that it was unlikely that meconium had been draining for hours; if this had happened, the pursuer's clothing would be soaking wet. The record of the examination at 05.45, at the top of page 21 of the notes, is entirely consistent with the pursuer's description of a small leakage of meconium. Professor Elder conceded that he had no proof that Dr Rodger's note on page 26 of the records is an attempt at a cover up, but it gave him grounds for suspicion. He emphasised that he was quite independent from the party instructing him - of about three hundred medico-legal reports that he had prepared, about 60% had been for pursuers and 40% for defenders. He confirmed that when he spoke to Mr and Mrs Campbell in 2000, the pursuer did most of the talking, while her husband sat in the corner and interjected occasionally, but Professor Elder did not question him or interview him. Categorizing a green sticky discharge as a show is such a basic mistake that he felt able to comment on it. He observed that midwives can slip up, they may be tired, they may be working under pressure.

[56] Under reference to the first paragraph of the introduction in number 7/23 of process, Professor Elder confirmed that the present case was certainly a case of suspected or confirmed acute fetal compromise. The standard practice in 1997 was to aim for a thirty minutes DDI as the maximum. This was the standard he would have taught his students in 1997, and it was the figure regarded as the standard in the 1960s and 1970s. If it took longer than thirty minutes, they were dragging their feet and this was not acceptable; if the obstetrician was the cause of the delay, this would be very bad, but if there was some other reason for the delay beyond his/her control, this would be excusable provided that he/she had done everything possible to sort matters out. If the reason for the delay was outwith the control of the competent obstetrician, it would be the responsibility of the anaesthetist or probably the management of the hospital. Although the focus is on thirty minutes, the real object was to deliver the baby as soon as possible - the longer the baby was in utero, the worse things will get.

[57] Mrs Gaynor Terris was aged 42 and practised as a midwife. She qualified in 1996, and in 1997 was working as a midwife at BGH; at that time about 900 babies per annum were delivered there. Since 1999 she had been employed as a midwife at the Simpson Maternity Pavilion of Edinburgh Royal Infirmary.

[58] Before
23 November 1997 Mrs Terris had no knowledge of the pursuer. She was not present when Mrs Davidson took the first call, because she was looking after another woman in labour. She took the second call, at 03.08 on
23 November 1997, at a desk in the corridor outside the labour rooms. She remembered the call, although she could not remember all the details. She described it as a very amiable chat - the pursuer was friendly and not distressed. Mrs Terris gave the pursuer the choice of coming into hospital, but the pursuer said that she was coping - she had pains in her back and at the top of her legs, but she did not want to come in just yet. She made no mention of any green sticky stuff. Mrs Terris said that she would have asked the pursuer questions, but she could not remember exactly what - the information would be on the call sheet. She was referred to page 39 of number 7/1 of process and confirmed that the handwriting in red ink was hers. She would be writing this during the phone call. The notes of the first call were already written on the same slip. She would have had the pursuer's file available, although she could not remember if she had this in front of her at the time. She also took the third call at 04.45, and the note of that call on page 39 is also in her handwriting. Mrs Terris told the pursuer to come into hospital, although the pursuer was reluctant to do so.

[59] When the pursuer arrived at hospital, Mrs Terris took her into the admission room. The pursuer told her she felt a trickle, and Mrs Terris helped her to remove her clothing. She saw meconium on the pursuer's underwear and asked her when this happened, to which the pursuer replied "That's my show". Mrs Terris helped her onto the bed, palpated her abdomen to discover which way the baby was lying, and commenced CTG. She could see that the baby had fetal tachycardia, the heart rate being about 170. The pursuer's pulse, temperature and blood pressure were normal. All of the contents on page 21 of the notes were written by Mrs Terris; she thought that she wrote down everything as it happened. She summoned Dr Rodger, who attended. Mrs Terris took the pursuer to labour room 4 - she was not in established labour, and her cervix was very unfavourable so Mrs Terris started to get her ready for caesarean section.

[60] The top line of page 25 of the notes was not in Mrs Terris' handwriting, but she did write the passage beginning "Written in retrospect". This was not written until
10 December 1997 because the notes accompanied the pursuer to the operating theatre, and Mrs Terris then went off duty, and on her return the notes had been transferred to Edinburgh with Nathan. The top eleven lines of page 26 were written by Ann Forrest, who took over at the end of Mrs Terris' shift. Mrs Terris had asked Ann Forrest to leave a space in the notes so that she could complete her notes retrospectively. The lower part of page 25, below Mrs Terris' signature (her maiden name being Thomson) was completed after she had inserted her note written in retrospect on
10 December 1997. Mrs Terris accompanied the pursuer to the operating theatre and was present at delivery.

[61] With regard to the second call, neither Mrs Terris nor the pursuer made any mention of a show. Mrs Terris did not ask the pursuer if she had had any vaginal discharge; she could not remember if she had asked her if her waters had broken. If she had asked these questions, she would have noted them on the form. She thought that these points had been clarified in the course of the first call. She would normally ask if there was fetal movement, but she could not remember whether she did so on this occasion.

[62] Mrs Terris described her telephone routine when talking to women approaching labour as follows. She needed a good few minutes with the woman on the phone. She would ask her if she had had a mucousy discharge, and would ask her what colour it was. (She no longer uses the word "show" because many women do not understand what she is talking about). She would ask details about the baby's movements, contractions, pain, have the waters gone, and how did the woman feel she was coping. She confirmed that in 1997 she would routinely ask if the lady had a mucousy discharge, and if she got an affirmative answer, she would ask what colour it was. If it was bloodstained, it sounded like a normal show; if it was green, this would alarm her because it was a possible sign of meconium stained liquor. In the course of the second call Mrs Terris concluded that the pursuer was in early labour. She did not go over questions about show or SRM, but just asked the pursuer how she was coping. She did not agree that the pursuer was keen to come into hospital at that time - it was a friendly chat, she asked if the pursuer would like to come in and the pursuer replied that she was coping and would rather stay at home. She could not remember if she suggested to the pursuer that she should take a bath, but this was quite likely.

[63] When the pursuer arrived at hospital her husband came into the room with her; he was in the corner of the room but he did not speak at all. Mrs Terris did not remember him leaving the room for any reason - she did not know if he went to get the pursuer's suitcase. She remembered seeing the meconium, which was dark green; it looked as if it had been there for a while, as it was not wet. When she examined the pursuer, fresh meconium drained onto her glove. The pursuer did not say that she had been draining meconium - Mrs Terris asked her when this happened, and the pursuer replied "That's my show". Mrs Terris was sure that she said that word. This seemed to Mrs Terris to be very pertinent, as what she saw was meconium.

[64] Mrs Terris was asked about the entry at the foot of page 26 of the notes, completed by Dr Rodger. She observed that she was not present at the perinatal meeting to discuss Nathan. On admission the pursuer did not tell her that the meconium had been draining for several hours, nor did she say to her that it was not abnormal; all that she said was "It's my show". Mrs Terris was quite unaware of this note. Perinatal meetings usually occur within one week of delivery; she could not remember the practice with regard to such meetings at BGH, but she was not invited to attend them there. It was usually the medical staff who attended them.

[65] In cross-examination Mrs Terris confirmed that the handwriting on the CTG trace at page 40 was hers. She would have completed palpation before she attached the CTG. She contacted Dr Rodger by going to the same phone as she had used for the second call, and paging her - she was out of the room just for moments, and then returned to transfer the pursuer to the labour ward. The CTG machine remained in the admission room, together with the belts which attached it, and the pursuer was attached to a new CTG machine with different belts when she arrived in the labour ward. Mrs Terris did not check the timings or calibrations on either machine.

[66] Mrs Terris had never experienced an outcome such as happened to Nathan in her career, before or since this occasion. Looking at page 25 of the notes, she did not think that the notes by Dr Rodger on the bottom one third of the page were there before she completed her retrospective notes, although they might have been there - she could not remember.

[67] Ian Campbell was the husband of the pursuer. In 1997 he was employed as a yardman, although now he cares full-time for Nathan, and works part-time in an old peoples home.

[68] Everything seemed to be fine with the pursuer on
22 November 1997. She was watching television, and went to the toilet. She then shouted through to him, and he came to the doorway of the bathroom. The pursuer had her trousers down and he saw green stuff running down her leg. He had no idea what this was and the pursuer made the first call to the hospital from the telephone in the hallway. This was prompted by the green stuff on her leg. At first Mr Campbell did not hear what was said at the other end of the telephone, but he heard his wife say that she had green sticky stuff running down her leg. She then turned to him and said that the midwife had told her that this was just a show, everything was fine, and everything was happening as it was supposed to happen. Mr Campbell said "To hell, I'm going to get the car", whereupon he heard the lady at the other end of the phone shout down the phone "No no, everything is fine, and if you come you won't be examined, it will just be a waste of petrol".

[69] Later, at the back of ten, the pursuer got pains and she was pacing up and down. Mr Campbell went for a lie down, and the pursuer later said that she would phone the hospital again. He did not hear what was said on this occasion, but the pursuer came back and told him that the midwife did not want her to come into hospital, and told her to take a bath. Mr Campbell helped his wife into the bath, and then returned to bed. He noticed that she still had staining there, but nothing running down her leg.

[70] Later the pursuer came back through and asked him to get the car because she was in so much pain that she wanted to go into hospital. He went off to collect the car, and when he returned the pursuer had made the third call. He drove her to hospital, and when they got to the front door of the hospital somebody put the pursuer in a wheelchair and took her to the labour ward. He waited outside the room while she was examined; when the midwife left the room, the pursuer asked him to get her case from the car, as she would be staying in because of the meconium. Mr Campbell had never heard of meconium before.

[71] When he returned with the suitcase the pursuer had been transferred to another room. He stayed with her there until they said that they were going to prepare her for surgery. He thought that at about 06.15/06.20 someone came into the labour suite and said something to the effect that we are to prepare for a caesarean, I think it's a really bad one. At about 06.35 Mr Campbell asked why everything was taking so long; the nurse went away and then returned and said everything was fine. At about 06.55 the pursuer was taken away, and at about 07.10 Mr Campbell was told that he could go into theatre. He did so, and was present when Nathan was delivered.

[72] In cross-examination Mr Campbell stated that he arrived in theatre about ten minutes before Nathan was delivered. After the decision was made to carry out a caesarean section, someone told him that his wife was fine and they were getting ready. He asked "What the hell are they doing?" and she went to check, and returned and said that everything was fine. Later, she checked again and again came back and said everything was fine. When his wife was watching television that evening, she was wearing a top and jogging bottoms. She did not change her jogging bottoms, and he was not aware that she changed her top. He was in the living room when she went to the toilet; she called him through, and she was standing at the doorway and he saw meconium running down her leg. Her trousers were about her knees. He did not see what she did with the green sticky stuff, but as far as he could recollect she kept the same trousers on. It was his suggestion that she should call the hospital - he said "We had better phone the hospital just to check". He was beside his wife when she made the call, but he could not hear what the midwife at the other end was saying until she made the remark about not coming to hospital as it would be a waste of petrol. He heard this remark because it was shouted. He had said to his wife that he was going to get the car, and the midwife shouted words to the effect of "No no, tell your husband no - there's no point coming over, what's happening is supposed to happen. If you come over, you won't even be let into hospital, it will just be a waste of petrol." The pursuer said nothing in response - she just told Mr Campbell that the midwife said everything was fine, so they calmed down. The midwife never spoke directly to him.

[73] When they reached the hospital they parked at the top car park, about
200 yards from the main entrance. When they arrived at the main door, a person got a wheelchair for the pursuer and wheeled her up to the second floor - not the third floor. He accompanied her in the lift. He did not go into the admission room, but sat outside on his own. When the midwife came out of the room, the pursuer walked over to the doorway which was already open, and asked him to go and get her case. He never saw the pursuer with any machine attached to her, nor did he see any belts around her abdomen. The pursuer said she thought she was staying because they think it's meconium - this was the first time that he had heard this word. It meant nothing to him at all, but he remembered her saying it. He did not remember ever going to an antenatal class, but he did attend an open night at the doctor's surgery.

[74] He remembered meeting Professor Elder about nine years ago, and he supposed he discussed what happened with Professor Elder. He asked the Professor if what happened should have happened, but he could not remember giving the Professor any factual history or telling him anything such as seeing the green stuff on his wife's legs. He could not remember if Professor Elder asked him what he remembered of that evening. Since then, he had not discussed with the pursuer in great detail what had happened that evening. However, he was adamant that he had seen green stuff on his wife's leg, and that the midwife shouted down the phone that his wife would not be let into the hospital and that it would be a waste of petrol. He went to lie down at about
2 am, having been with his wife for about four hours while she was in pain and pacing up and down.

[75] Dr Faye Rodger was aged 43 and was a consultant obstetrician and gynaecologist at BGH. In November 1997 she was working in her second year as a senior house officer there. About 1,000 babies are delivered there each year, and she thought the figure was similar in 1997.

[76] Dr Rodger's first involvement with the pursuer was when she was called to see her at about
6 am on
23 November 1997. The CTG scan showed fetal tachycardia, with late deceleration which was often related to fetal hypoxia. She decided that the CTG trace was non-reassuring, and in the context of ruptured membranes and meconium, she decided that a caesarean section was appropriate. The pursuer's cervix was dilated by 1 to
2 centimetres, which was inadequate. She confirmed that none of the handwriting on page 21 of the notes was hers; the lower one third of page 25 was in her handwriting, and only the last four lines of page 26 were in her handwriting. She could not remember if she was told about meconium drainage at home by the pursuer or by the midwife. She performed the caesarean section on the pursuer and delivered the baby at 07.20.

[77] Dr Rodger was asked if she was personally responsible for the elapse of one hour between 06.20 and delivery at 07.20; she replied that it was not her intention that there should be any delay, but yes, this was her responsibility as attending obstetrician. It was put to her that delivery should have occurred within thirty minutes of 06.20, when the consultant decided to confirm her decision to proceed with a caesarean section; she was aware that this target was used in some legal cases, but the medical profession was aware of some problems if the procedure was carried out too quickly. There were routine steps which may be bypassed, for example in cases of life threatening maternal haemorrhage. She agreed that in
1997 a DDI of thirty minutes was a bench mark, but she observed that in 2000 most hospitals were not meeting that.

[78] Dr Rodger was asked why she had written the last four lines on page 26 of the notes on
20/12/97 and she explained that this was the date of a monthly perinatal meeting, at which Nathan's case was discussed and she volunteered information to the meeting. The consultant suggested that she should write something in the notes immediately. She could not remember if the pursuer told Dr Rodger herself, or others, that the meconium had been draining for several hours. She could not remember the exact words which the pursuer used, and it was unlikely that she used exactly the words noted. However, she did remember the pursuer saying to her that she thought it was a show.

[79] In cross-examination Dr Rodger confirmed that when she first saw the pursuer she had the whole of the CTG trace at page 40 of the medical notes available to her, but only the early part of the trace at page 41. She confirmed that this trace continued through page 42, starting at 06.18, and stopping at page 43 at just before 06.48. She was referred to tables 5 and 6 of NICE Clinical Guideline 55 (No 7/24 of process) and she observed that this was not published in 1997; at that date the term "non-reassuring" was not as categorical as it is now stated in the guideline.

[80] When Dr Rodger was called to see the pursuer she was in the on call room. Her recollection of the order of events was not clear, but her normal practice would be for the midwife to give her the background, and she would have had the midwife's notes (page 21 of No 7/1). Dr Rodger herself had noted at page 25 that she was asked to see the pursuer at 06.10. Her note recorded that this was the pursuer's first pregnancy and that she was at term plus five days. She could not remember if the information "SRM at home → meconium" came from the pursuer or from the midwife. She did not think that she examined the pursuer - the midwife was experienced, the pursuer was very uncomfortable and Dr Rodger saw no reason to do so. A patient's consent to undergo an operation was always taken by a doctor; the consent form in this case (page 34 of the notes) was not signed by Dr Rodger, but the signature might have been that of Lesley Armstrong who assisted her in the operation. The operative findings on page 30 of the notes were recorded by Dr Rodger. The cord was around the neck three times, there was thick meconium, the cervix was 1 to
2 centimetres dilated (so there had been no significant progress since the pursuer's admission). Dr Rodger did remember that there was a problem with the theatre bed, but she could not remember exactly what the problem was. The notes record that it became jammed and would not go up or down, but in any event another bed had to be obtained. She did not remember how much delay this caused, but it would not have been very long.

[81] Dr Rodger was asked about the thirty minute DDI benchmark, and she observed that although she had no data, in her experience it was extremely unlikely that this was being met in Scotland in 1997. It was something one tried to achieve in some very urgent cases, but a degree of common sense was necessary - an operation can be too rushed. She did not think that in 1997 obstetricians were striving to deliver within thirty minutes of a decision to perform a caesarean section, leaving aside "crash cases". Then, as now, she would expect obstetricians to use common sense - to expedite delivery, but to take other considerations into account. She did not consider that it would be necessarily negligent if a DDI exceeded thirty minutes; she was shown the paper entitled "National Cross-Sectional Survey" (No 7/23 of process) and stated that her views accorded with this. Research indicated that surgery could be carried out too quickly. Thirty minutes was the time scale to be aimed at, but seventy five minutes was the crucial period. There was no thirty minute deadline if it was not a "crash case", and she did not consider that it would be thought negligent to take longer than thirty minutes from decision to delivery.

[82] In re-examination Dr Rodger reiterated that No 7/23 identified thirty minutes as an arbitrary threshold, but she accepted that ideally delivery should be accomplished within thirty minutes. She agreed that Nathan's case would be categorised as grade 2 urgency under the more recent categorisation, and that the benchmark for grade 1 and 2 urgency was thirty minutes in 1997. It was put to her that any obstetrician of ordinary competence would have sought to achieve that benchmark at that time, and she replied that this would not reflect clinical practice at that time. They attempted to achieve delivery of Nathan as quickly as possible, because there was no reason to delay. The main indicator of urgency in this case was the background of meconium, and the trace findings which were indicative of possible fetal distress.

[83] Dr Rodger was shown page 25 of the notes, and in particular the fifth line from the bottom of the page, which is in paler ink than the lines above and below; if this was not written at the time that she wrote the rest of the notes, it would have been inserted shortly after this time. She accepted that there were clear indications of fetal distress. It was not correct to suggest that she thought there was no urgency - if there had been no urgency, she would have had breakfast and gone to the bathroom before performing the operation. She was keen to have the pursuer delivered quickly, but not to cut corners to expedite that. She was waiting in theatre for the pursuer to be ready; she did not know what caused the delay, but it was not her. She could not comment on the cause of the delay. Her aim was not to have the baby delivered as fast as possible, but as fast as safely possible. She confirmed that the distance from the labour ward to the theatre was not significant - perhaps two or three times the length of the courtroom.

[84] Professor Sir Sabaratnam Arulkumaran was aged 63, and was Professor and Head of Obstetrics and Gynaecology at St George's Hospital Medical School, University of London. He was president of the Royal College of Obstetricians and Gynaecologists from 2007 to 2010, and was knighted for his contribution to health services in 2009. His distinguished curriculum vitae, extending to some 55 pages, is set out at No. 6/6 of process. His own clinical practice was concerned particularly with fetal maternal medicine, and he continued to be actively involved in obstetric practice. In 1997 he was a consultant obstetrician and gynaecologist at Derby City General Hospital. He spoke to the terms of his report dated
20 December 2010 (No. 6/5 of process).

[85] Having regard to the CTG traces in this case, Professor Arulkumaran was in no doubt that a caesarean section was necessary. The combination of meconium and tachycardia with late decelerations suggested that the baby was having difficulty, and there was no chance that the pursuer would deliver normally within a short time. It was quite important to deliver the baby as soon as possible. It was always possible that the baby's heart rate would suddenly drop; the sooner the delivery, the better. He would certainly expect that delivery in 1997 would have been earlier than thirty minutes after the decision to perform a caesarean section. If the decision to perform a caesarean section was taken at 06.20, delivery should have occurred before 06.50 - that was the accepted norm. The general understanding in 1997 was that one should try to deliver a baby within thirty minutes from the decision to operate, but this aim was for a group of babies, not an individual case. In a case of fetal abruption, ideally the baby should be delivered within twenty/twenty five minutes - as soon as possible. In such a case procedural corners would be cut in order to save the baby. Nathan's case was between category 1 and category 2; in such a case he would expect delivery within thirty minutes from the decision.

[86] Delay usually occurs in the course of transfer from the ward to theatre. In this case the clinical notes record that the decision was taken at 06.20, and the pursuer was not taken to theatre until 06.50. Professor Arulkumaran was asked who was responsible for this delay and he replied that it was system error - the whole team, midwife, anaesthetist and surgeon had to work together. He was asked if thirty minutes was the outside deadline, and he replied that this was the recommendation. Standing Nathan's symptoms, he considered that a DDI of one hour amounted to inadequate practice. He agreed with the view expressed by Professor Elder at paragraph 6.4 of his report (No. 6/9 of process). The delay from 06.20 to 06.50 he described as a system error, not an error of the obstetrician.

[87] In cross-examination, Professor Arulkumaran stated that if Dr Rodger was called to see the pursuer at 06.10 and spoke to her consultant at 06.20, this was an acceptable timescale. With regard to the thirty minute DDI, this was recommended practice and has now become an audit tool. In 1997 as now it was accepted as the standard for delivery when there was fetal compromise; however, not all hospitals achieved this standard. Thirty minutes was "what people were encouraged to achieve". It was put to him that Dr Rodger did not fall below the standard of an obstetrician of ordinary competence exercising reasonable skill and care, and he replied that she was part of the responsible team. As an individual, he would say that she did fall below this standard - he would not have stood in theatre waiting for a patient for thirty minutes, he would have gone to see what had happened to her. Each member of the team has responsibility; the doctor has to make sure that the patient is in theatre in time. This may not be solely her problem, but she is the head of the team - it was not just her responsibility as an individual, but her responsibility as head of the team.

[88] The Professor accepted that there might be many reasons why it might take longer than thirty minutes from decision to delivery; there could be problems with the anaesthetic, or the mother might be in distress, there might be difficulties with porters or with the bed. He accepted that there could be a host of potential problems, but it was still substandard care. He could not ascribe fault to one individual, but the system on this occasion had failed Nathan, simply because it took more than thirty minutes from decision to delivery. He accepted that in 1997 there were no specific guidelines regarding the thirty minute DDI timeframe, but this was the general view of a body of obstetricians. The elapse of time had to be judged in the circumstances of each individual case; in the present case, standing the findings of fresh meconium and the CTG trace, DDI should have been below thirty minutes, so this should be considered as substandard care.

[89] In re-examination Professor Arulkumaran was referred to the "National Cross-Sectional Survey" paper (No 7/23 of process), which he interpreted as indicating that there may be a spectrum of acceptable DDI periods, and an individual decision must be taken in each case; the present case was between category 1 and category 2, so the recommendation of thirty minutes would apply. He was asked whether this could be described as the benchmark, or the ideal goal, and he stated that this was correct. There were no recognised or published audit papers in 1997 relating to the interval between decision and delivery; the aim was to improve systems. He was asked if, on the basis that the only fact known is that there was a delay between decision at 06.20 and delivery at 07.20, he could conclude that no reasonably competent obstetrician exercising reasonable skill and care would have failed to effect delivery within thirty minutes of 06.20; he answered that in his opinion it was primarily the responsibility of the obstetrician, but she had to rely on others - we have to look to how the system can be improved. The mere fact of a one hour delay was substandard practice, but this was not solely the blame of the individual practitioner, the system also had to take the blame.

[90] Professor Alan Cameron was aged 53, and was currently a consultant obstetrician and specialist in maternal and fetal medicine at the Southern General Hospital Glasgow, and Professor of Fetal Medicine at the University of Glasgow. His curriculum vitae was No 7/11 of process. In 1997 he was a consultant obstetrician at the Queen Mother's Hospital. He had prepared three or four medico-legal reports each year for the last fifteen years, both within and outwith Scotland, for both pursuers and defenders. He spoke to his report dated
18 October 2010 (No 7/21 of process).

[91] There were no published guidelines as to what was an acceptable DDI in 1997; the Royal College of Obstetricians and Gynaecologists first published guidelines in 2001. He was not aware of any guidelines in Scotland in November 1997 recommending a timescale to be aimed at for DDI. The profession was becoming more focused on classifying degrees of urgency, although at that time the classification was simply between an elective caesarean section and an emergency caesarean section. A "crash caesarean section" was a real emergency, and a sub-category of an emergency caesarean section. As at the date of the proof, there were four classifications of urgency, as set out in figure 1 of No. 7/22 of process - although these are not clearly defined categories. Category 1 would be a "crash section". In category 2, there is more time to prepare the woman for surgery; there is a risk to the mother if surgery is carried out too quickly, and it was important not to focus only on the fetus. Aspiration can result if anaesthetic is administered very quickly and this can be fatal. In 1997 there was not a target DDI of thirty minutes.

[92] The CTG traces of the pursuer taken in October 1997 (pages 47 and 48 of the notes) were normal and showed no significant uterine activity; they were what Professor Cameron would expect at 36 weeks gestation. The CTG traces of the pursuer on
23 November 1997 (pages 40 to 43 of the notes) were not normal; they showed fetal tachycardia with variable deceleration. This was not reassuring, and taken together with a finding of meconium, the mother should not be allowed to continue in labour. Professor Cameron did not take issue with the decision to proceed to caesarean section at 06.20. The CTG trace should be a guide to the obstetrician as to the urgency of delivery - if there was a deterioration in the fetal heart rate, or a non recoverable deceleration, this would be an indication for a "crash section". Examples of such a trace are to be found at page 14 of Professor Arulkumaran's report (which traces do not relate to the present case). Trace 9 shows a terminal brachycardia. This would be an indicator for a "crash section".

[93] The purpose of the research outlined in the paper "National Cross-Sectional Survey" (No 7/23 of process) was to look at whether DDI had any bearing on neonatal outcome; three different intervals were considered, and it was concluded that a DDI of thirty minutes is not an absolute threshold for influencing baby outcome. Professor Cameron agreed that thirty minutes remained an aspiration and a target, notwithstanding that the underlying science indicated a longer timetable.

[94] Professor Cameron was asked, against the background that the pursuer was a first time mother five days after the expected date of delivery, who found fresh meconium at 21.15 on the previous evening and again on her admission to BGH, and with the non-reassuring CT scans, could it be said that in failing to deliver Nathan sooner, Dr Rodger fell below the standard of an ordinarily competent obstetrician exercising ordinary skill and care. He replied that he was not of that opinion. Meconium was quite common, and there was not such a degree of urgency on the CTG to put this case into category 1 - there was some time in which to deliver the baby safely. He was asked whether in failing to deliver the baby before 06.50 Dr Rodger fell below the standard of an ordinarily competent obstetrician exercising ordinary skill and care; he stated that he was not of that opinion. The information before Dr Rodger did not present such an acute problem. He considered that the time taken was acceptable practice in 1997. He was asked whether in Scotland in 1997 hospitals invariably delivered babies by caesarean section within a DDI of thirty minutes, and he replied that in his opinion they did not. The basis of his opinion was his experience. He conducted a small audit in his own hospital and found that they did not achieve this time scale. This was a consistent finding. There was a failure to achieve a DDI within thirty minutes in about 30-40% of cases.

[95] In cross-examination Professor Cameron observed that the paper "National Cross-Sectional Survey" (No 7/23 of process) followed on a large audit of caesarean sections carried out by the RSOG over a three month period in 2000, which resulted in the 2001 guidelines. The paper did not consider the professional standard of obstetricians, but rather whether the standard should be changed. He agreed that other publications have hinted at a thirty minute DDI being appropriate, and indeed it was noted at page 4 of this paper that a DDI for emergency caesarean section within thirty minutes was the international standard for fetal compromise. The four categories of urgency were not in place in 1997 - at that time, there was a crude distinction between elective and emergency caesarean sections. It was put to him that in 1997 the accepted international standard for emergency caesarean sections was thirty minutes, but he did not agree. He was of the opinion that this had become the international standard by 2004, as a result of the guidelines published in 2001; it was not the position in 1997. He did not consider that a DDI of thirty minutes was normal practice in 1997. If Professor Elder had expressed the view that it was a well established professional norm in 1997 that an obstetrician would deliver within thirty minutes of the decision in cases of fetal distress, he would not agree with that opinion. He disagreed that this was taught in the 1960s - there was no absolute DDI of thirty minutes. Professor Cameron was never taught that there was a maximum thirty minute DDI in cases of fetal distress. In really acute "crash sections" it was possible to deliver a baby in fifteen minutes, but in 1997 for an emergency caesarean which was not a crash section he would expect a DDI of more than thirty minutes if a spinal anaesthetic was used. Anaesthetists have a strong preference for spinal anaesthetic because it is safer for the mother, but it takes at least ten minutes preparation, and further time to work. Even today, a caesarean can be done with a spinal anaesthetic within thirty minutes, but it would be very close towards the thirty minute DDI.

[96] Under reference to "Good Practice No
11" published by the RCOG in April 2010 (No 7/22 of process) Professor Cameron agreed that thirty minutes was now the accepted DDI practice for a case of category 1 urgency; this was a target set by the RCOG for its own obstetricians, but it was not a target for hospital management. Although NICE guidelines often adopt the recommendations of the RCOG, it can take up to three years for NICE to produce a guideline, and the role of NICE is very much advisory, not mandatory.

[97] Professor Cameron was asked what would be the appropriate advice to be given by a midwife to a first time mother past term who reported by phone a dollop of green sticky stuff; he considered that if the midwife was concerned, she should advise the woman to come to hospital. The midwife would have to ask questions of the woman to clarify what was being spoken about. When the woman arrived at hospital the midwife should check for meconium and start a CTG trace; if this was normal, there would be no cause for concern. In the present case he agreed that the CTG trace was non-reassuring and the presence of meconium was significant. He agreed that the decision to carry out a caesarean section was correct. The fetus would not survive a labour of some ten to twelve hours, and the risk to the baby grew with the passage of time.

[98] Professor Cameron did not agree that it could be inferred from the medical notes that nothing was happening between 06.25 and 06.50. The pursuer was still in the labour ward but was being given general preparations for theatre. She would be shaved, catheterised, her consent would be obtained, the anaesthetist would see her, and there were numerous preparatory steps required. It was put to him that no competent obstetrician, knowing the risks to the baby, would have failed to deliver within thirty minutes of 06.20, but he did not agree with this. This was not a category 1 urgency case; there was no need to carry out a "crash section". Although the CTG trace was not reassuring, it was not so bad that there was no time to prepare the mother. Although the categories were not in place in 1997, Professor Cameron would say that this was a category 2 case. He disagreed with Professor Arulkumaran's opinion that delivery should have been within thirty minutes of 06.20, and repeated that the CTG trace was not so concerning as to warrant a "crash section".

[99] If Professor Elder was of the view that no ordinarily competent obstetrician would have failed to deliver within thirty minutes of the decision to operate in this case, Professor Cameron did not agree with this view. The audit shows that many cases did not result in delivery within thirty minutes. Although he accepted that the obstetrician might usually be regarded as the captain in charge of the ship, there may be causes of delay or other emergencies which are outwith the control of the obstetrician. The theatre might be in use, or the anaesthetist might be unavailable - responsibility was shared, everything was done as a team, and it was not the sole responsibility of the obstetrician. The obstetrician would normally be responsible for getting an emergency caesarean patient to theatre, but if there was a failure by a team member this would be potentially a management failure. However, clinical risk management was not in place in 1997.

[100] It was put to Professor Cameron that the responsibility was on Dr Rodger to carry out this caesarean section within thirty minutes of 06.20 because of the risk to the fetus; he agreed that there was a degree of risk to the fetus, but it was not so great as to require a DDI of thirty minutes - this was not the type of CTG trace which would require this woman to be rushed to theatre. Of course there could have been a collapse in the fetal heart rate such as shown in the example at page 14 of Professor Arulkumaran's report, but the CTG in the present case was not as bad as this and the risk was not so high - there had been no real change in the CTG trace over time. Delivery at or after thirty minutes does not generally affect the long term outcome for the baby. Fetal distress is always a matter of urgency, but a caesarean section in a case such as this should not be carried out as fast a possible, but within a reasonable timescale. There are more urgent cases than the present. No doubt a caesarean section could have been performed at BGH within thirty minutes, but he did not agree that no ordinarily competent obstetrician would have failed to do this in the present case, because the categorisation of risk did not justify this. Dr Rodger did not need to perform this operation straight away - the pursuer should have been prepared for theatre in the normal way. This can result in a DDI of one hour, and very frequently does in labour wards around the country. Professor Elder worked in a London teaching hospital which may have had a particular interest in achieving the thirty minute standard in 1997, but Professor Cameron did not believe that this was a universal standard at that time. He did not believe that it was normal practice to effect delivery within thirty minutes of decision in cases of fetal distress in 1997. In a category 1 case, the standard was still thirty minutes, but he would hope to achieve a quicker delivery in cases of particularly urgent fetal distress. Fetal distress is a global term, which contains a huge range within it. He did not agree that in the circumstances of this case it was necessary to achieve delivery within thirty minutes of the decision to operate.

[101] In re-examination Professor Cameron reiterated that he did not believe that the risk to this baby was so acute, as appeared from the CTG trace, that he had to be delivered within thirty minutes. This was not a case in which the baby had to be delivered within thirty minutes, which failing the obstetrician would be negligent, even though the CTG trace was non-reassuring. He did not agree with Professor Arulkumaran's assessment that the pursuer was in active labour before this operation; active labour only began when dilatation had reached 3 to
4 centimetres, but in this case the cervix was never dilated by more than
2 centimetres. Moreover, there were at most three contractions in a ten minute period. However, subject to these observations relating to the last sentence of the top paragraph of page 9 of Professor Arulkumaran's report, Professor Cameron agreed with his analysis of the sequence of events.

Submissions for the parties

[102] Senior counsel for each party helpfully provided written submissions - those for the pursuer form No. 26 of process, with an addendum relating to Professor Cameron's evidence which is No 28 of process, and those for the defenders form No 27 of process. I do not seek to repeat these submissions in detail, but I have taken them fully into account (together with senior counsels' submissions made at the bar).

Submissions for the pursuer

[103] Senior counsel relied for her general propositions of law on Hamilton v Fife Health Board 1993 SLT 624, Vowles v Evans 2003 1 WLR 1607, Wilsons and Clyde Coal Co Limited v English
1958 AC 57 and Baker v T E Hopkins and Son Limited 1958 3 All ER 147. The standard of foresight is that of the reasonable man - Glasgow Corporation v Muir
1943 AC 448, and relative inexperience on the part of the defendant is not a reason for a lower standard - Wilsher v Essex Health Authority 1987 QB 730,
1988 AC 1074. (Senior counsel for the defenders accepted in the present case that nothing turned on the grade or relative inexperience of Dr Rodger). The risk that baby Nathan would sustain injury if not delivered as early as possible was clearly foreseeable on the basis of Professor Arulkumaran's evidence.

[104] Separately from their vicarious liability for the acts or omissions of Dr Rodger, the defenders have a common law duty to provide a safe system of work, which extends not just to employees but to others - Stokes v Guest Keen and Nettlefield (Bolts and Nuts) Limited 1968 1 WLR 1776; Barbour v Somerset County Council [2004] UKHL 13, 2004 1 WLR 1089. It should be noted in the present case that Dr Rodger, as obstetrician in charge, admitted that there was delay. Approved codes of practice, NHS or NICE guidelines were not relied on by either side in their written pleadings, and they cannot be relied on by either side, no notice of them having been given.

[105] Examples of liability for an unsafe or inadequate system being maintained by the hospital are Bull and another v Devon Area Health Authority [1993] 4 Med LR 117, and Robertson v Nottingham Health Authority [1997] 8 Med LR 1 (particularly at page 13). From these authorities senior counsel drew the proposition that the defenders owed a non-delegable duty of care towards the pursuer to maintain a safe and adequate system. In a hospital the size of BGH, which both trained and employed obstetricians and midwives, the only inference which could be drawn from the evidence was that there was no adequate system in place, or that this system failed in the present case. Senior counsel did not suggest that res ipsa loquitur applied in the present case, but the pursuer had made out a relevant case of delay, and the onus shifted to the defenders to prove that this delay was caused otherwise than by their faulty system. Dr Rodger stated that she was scrubbed up in the theatre and ready to go, but that something caused delay. There was a clear inference of system failure. The duty of candour on the defenders entailed their giving a much fuller explanation in their pleadings than had been done. The defenders have not proved what happened in the interval between 06.25 and 06.55, and the onus was on them to show that this was consistent with a safe system. There was such a significant delay that the onus of proof shifted to the defenders - Gunn v McAdam and Son 1949 SC 31, per Lord President Cooper at 38/40.

[106] Even if, contrary to the above submission, the onus of proof had not shifted in this case, the pursuer has proved a significant and unexplained delay despite a known risk to the baby and the requirement for urgency, and after the obstetrician has reached a decision to deliver Nathan as a matter of urgency. Although senior counsel was not suggesting that this case was in the category of a "crash section", the clinician has decided that the operation should be carried out as a matter of urgency; it was sufficiently urgent that she had no breakfast and did not go to the toilet before the operation; her decision has to inform the question whether proper professional practice was followed. It was not for Professor Cameron to decide afresh whether this was or was not an urgent case; his evidence did not address the correct question.

[107] Senior counsel accepted that the standard of care is to be judged on the basis of scientific and technical knowledge at the time of the negligence - in this case, 1997 (Roe v Ministry of Health 1954 2 QB 66). The test for professional negligence is set out in Hunter v Hanley 1955 SC 200; see also Gerrard v Royal Infirmary of Edinburgh NHS Trust, 2005 CSIH 10, 2005 SC 192, and Bolam v Friern Hospital Management Committee[1957] WLR 582. Where, as here, there are conflicting opinions of medical practitioners as to the appropriateness of a particular practice, 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 [1998] AC 232; Honisz v Lothian Health Board, [2006] CSOH 24, 2008 SC 235. See also the article in the Stair Memorial Encyclopaedia on Medical Law (re-issue) beginning at paragraph 162.

[108] Senior counsel made detailed submissions with regard to the evidence in respect of each of the grounds of fault relied on; these submissions followed closely the written submissions at pages 17 to 43 of No 26 of process, and the addendum (No 28 of process), and need not be repeated here. Senior counsel invited me to find negligence established on all four grounds set out in the Closed Record, which failing on any one or more of these grounds.

Submissions for the defenders

[109] Senior counsel for the defenders moved me to sustain the defenders' first and third pleas-in-law and to assoilzie them from the conclusions of the summons on the basis that the pursuer has failed to prove negligence on any of the four grounds advanced by her. Senior counsel began by considering the pursuer's averments of fault in the Closed Record, on the basis that these averments set the parameters for the inquiry, and are the only case which the defenders have to meet - Morrison's Associated Companies Limited v James Rome and Sons Limited 1964 SC 160. This remains good law and is binding on the court.

[110] The averments of fault against the midwives are predicated upon the following facts - (1) that the pursuer told midwife Davidson in the first call that she had passed a "large amount of green sticky substance" vaginally, (2) that midwife Davidson erroneously told her that this was a "show" and that the birth could be up to a week away, and (3) that midwife Davidson should have recognised the description given as indicative of the possible passage of meconium meriting admission to hospital. Senior counsel accepted that if the court held these three facts proved on a balance of probabilities, it would be entitled to hold that midwife Davidson's actions fell below the standard to be expected of the ordinarily competent midwife exercising ordinary skill and care, and a proof before answer on causation would be required.

[111] Senior counsel analysed the particular duties said to have been incumbent on midwife Davidson and midwife Terris in Article 5 of Condescendence, which I do not rehearse here. A single duty was said to have been incumbent on Dr Rodger, namely "to have carried out said caesarean section not more than thirty minutes from the time of the decision to carry out said procedure". The system case depended on only one averment, made on an esto basis -

"Esto the attending obstetrician, having appropriately decided on an emergency section at about 06.20, was not herself responsible for the delay until delivery....The defenders had a duty to devise and maintain a safe system, whereby the clinician's decision to deliver Nathan as an emergency would be carried out within thirty minutes."

[112] Senior counsel submitted that there were three reasons why the system case could not succeed. First, no duty of care exists. Second, if a duty of care does exist there are no averments as to what a safe system is and how any system the defenders operated was deficient, and there was no evidence directed to these matters. Third, in any event, the expert evidence directed to the "system" case does not support the duty alleged to exist.

[113] The existence of a duty of care depends not only upon foreseeability of damage but a relationship of proximity and a situation such that the court considers it fair, just and reasonable to impose a duty of a given scope upon the one party for the benefit of the other - Caparo Plc v Dickman [1990] 2 AC 606; Gibson v Orr 1999 SC 420. As regards foreseeability, not all babies who have passed meconium and whose CTG trace is non-reassuring develop cerebral palsy. There is insufficient proximity in the present case for a duty of care to arise. The duty to devise and maintain a safe system would require the defenders to institute such a system before the pursuer comes under their care; it would be owed to an indeterminate class of persons, limited only by the fact that they happen to be pregnant and live within the defenders' geographical area. In any event it would not be fair, just and reasonable for such a duty to exist; birth asphyxia cases are very rare events, and although there was no evidence as to what would be required to satisfy such a system, questions of the allocation of limited resources to meet a very rare occurrence clearly arise. To devise and maintain a system guaranteed to achieve delivery within thirty minutes could require considerable expenditure and additional resources. The pursuer's "system" case is irrelevant.

[114] The second attack on the pursuer's "system" case was as follows. In 1997 caesarean sections were categorized as elective or emergency (the latter including a sub-category of particularly urgent cases known as "crash sections"). The present case was nether elective nor "crash". There was no evidence as to why it took from 06.20 to 07.20 to deliver Nathan, and it is tendentious to describe this as a delay. There were a multitude of variables in any case - assembling the necessary staff, preparing the mother for the procedure, the time taken to get to the theatre, the time taken for the anaesthetist to discuss with the patient, the administration of an anaesthetic to a woman who is having contractions, and the time taken to perform the operation itself. In this case the jammed bed added to the time. No criticism was made of the time taken from the initial incision to delivery. It does not follow from the fact that it took one hour from the decision to delivery that there was a system failure. The pursuer has no averments of what a safe system requires - it is not enough simply to say that because delivery was not achieved within thirty minutes of the decision that the system was unsafe. In order to find the system deficient, evidence would be required of the system actually in place - lines of communication, numbers of staff, availability of porters, equipment etc - to allow the system in place to be tested against that contended for. The pursuer's case on record and in evidence was silent on all of these matters. There was no evidence of what a safe system was, nor in what respects the defenders' system was deficient. Under reference to Caparo v Dickman, senior counsel observed that the court had to consider whether it was fair, just and reasonable to impose a duty of a given scope - it was not incumbent on the defenders or the court to work out what the duty should be - the defenders only had to meet averments of a given scope. Finally with regard to the "system" case, senior counsel submitted that the expert evidence did not prove the case on record.

[115] With regard to the standard of care, in relation to the grounds of action against the two midwives and the obstetrician, the standard was as set out in Hunter v Hanley. Again, the defenders only had to meet the case averred against them on record. There was no averment of duty incumbent on Dr Rodger to come out of the theatre to find out where the pursuer was or what was happening. There were no averments, nor any evidence, about how long it took Dr Rodger to scrub up for the operation, nor any evidence as to how long she was in theatre waiting for the pursuer, nor how long she should have waited, nor what she should have done to speed things up. In relation to the "system" case, the standard of care was as set out in Wilson and Clyde Coal Limited v English and Vaughan v Ropner and Co (1947) 80 Lloyds Law Rep 119. Senior counsel pointed out that there was no criticism, either of Dr Rodger or of the defenders' system, relating to the period from incision to delivery. The start time in theatre was noted at page 62 of the records as being 07.00, and this was not challenged.

[116] Senior counsel then analysed the evidence as to the facts and the reliability and credibility of witnesses, between pages 9 and 19 of his written submissions. I do not propose to rehearse his submissions in this regard here. I observe however that in considering the evidence of midwife Terris (nee Thomson) senior counsel pointed out that although she was the only person who was with the pursuer throughout the period from 06.20 to 07.20, she was not asked by counsel for the pursuer why it had taken one hour from decision to delivery.

[117] Senior counsel then turned to the expert evidence of Mr Regan, Professor Elder, Professor Arulkumaran and Professor Cameron. As regards how the court should approach conflicting expert evidence on what was acceptable medical practice, he referred me to Dineley v Lothian Health Board [2007] CSOH
154, in which Lord Hodge (at paragraphs [36] to [40]) gave an accurate and convenient synopsis of the law, including his own decision in Honisz v Lothian Health Board. Senior counsel submitted that it was only in the rare case that the expert evidence for a defender will be rejected and negligence held to be proved. The court could only find that Dr Rodger was negligent in failing to deliver Nathan within thirty minutes of her decision to perform a caesarean section if there was compelling expert evidence to demonstrate that the testimony of Professor Cameron was untenable, not reasonable or responsible, or lacking a logical basis, thereby allowing the court to reject his testimony. Senior counsel analysed the evidence of the various expert witnesses. He submitted that the court should be slow to rely on the evidence of Professor Elder, for the reasons set out in his written submissions. Although Professor Arulkumaran was without doubt an eminent and well qualified obstetrician, on close scrutiny his evidence did not provide a basis for a finding of negligence against Dr Rodger as an individual - see in particular his answers to the last few questions in re-examination. Neither Professor Elder nor Professor Arulkumaran gave evidence in support of the system case as it is set out on record.

[118] If the court was unable to reject Professor Cameron's evidence, the pursuer could not succeed against Dr Rodger as an individual. Senior counsel listed several factors which should be borne in mind when assessing Professor Cameron's evidence, as follows:-

(i) The test was not whether the court preferred Professor Cameron to Professors Elder or Arulkumaran - it was enough that Professor Cameron had a tenable basis for a different view from them.

(ii) The court cannot reject Professor Cameron just because the pursuer has led Professor Arulkumaran - see the observations of Stuart Smith LJ in Loveday v Renton [1989] 1 Med LR 117 at 125, quoted by Lord Hodge at paragraph [39] of Dineley.

(iii) Professor Cameron was prepared to concede points which were well made and put to him in cross, for example that, prospectively viewed, a clinician should know that fetal heart rate could drop suddenly. He was therefore prepared to face up to and accept the logic of a proposition put in cross examination, or prepared to concede points that are seen to be correct.

(iv) Professor Cameron agreed that the CTG trace was non-reassuring, but it could not be described as terrible or catastrophic - it was not like the terminal bradycardia shown in the example at page 14 of Professor Arulkumaran's report.

(v) Under reference to No 7/22 of process, Professor Arulkumaran's assessment of urgency in the present case was somewhere between category 1 and 2; whereas Professor Cameron's assessment was that it was category 2. There would be no immediate threat to the life of the fetus until collapse of the fetal heart rate actually occurred, so Professor Cameron's assessment should be preferred in this respect.

(vi) There were no guidelines in 1997 to indicate that there was a maximum DDI of thirty minutes. No textbook was produced to support the proposition that in these circumstances a child should be delivered in under thirty minutes. If this was accepted practice, breach of which would constitute negligence, it might be expected that there would be some reference to it in some textbook. In particular there was no support for Professor Elder's view that this was standard teaching in the 1960s.

(vii) If it was the case that no ordinarily competent obstetrician exercising ordinary skill and care would fail to achieve delivery in thirty minutes, one would not expect to find a widespread failure to meet this timescale, such as Professor Cameron spoke of in his own experience. The small audit in Professor Cameron's own hospital resulted in a consistent finding that between 30% and 40% failed to achieve this timescale. The fact that there was routinely failure to achieve this timescale was reflected in the evidence of each of Professor Arulkumaran and Professor Cameron and also Dr Rodger. From
2001 a DDI of thirty minutes was stated as a target, with a view to encouraging fewer hospitals to fail to reach that target.

Professor Cameron gave a number of reasons for the views expressed in his evidence, and the court would not be entitled to reject this evidence.

[119] The onus of proof remained with the pursuer. Where there is direct evidence as to what occurred there is no need to rely on inferences. Only when an inference of negligence arises from the proved or admitted facts does a defender come under a burden to rebut that inference - Walker and Walker on the Law of Evidence in Scotland (3^rd edition) at paragraph 2.8.1; Ratcliffe v Plymouth and Torbay Health Authority [1998] Lloyd's Rep Med 162 at pages 174/5. Midwife Terris was called as a witness for the pursuer. She stated that she was with the pursuer throughout the period from 06.20 to 07.20, and she was best placed to tell the court what was happening and why it took so long. She was not asked about this. Having failed to ask her anything about this, it was not open to the pursuer to rely on an inference. It was not incumbent on the defenders to fill a gap in the pursuer's case by cross-examination. The burden of proof remained with the pursuer. A DDI of thirty minutes was merely a recommendation; the fact that it took longer to achieve delivery in the present case did not infer negligence. The elapse of time was a neutral factor - there can be negligent and non-negligent explanations for a DDI of sixty minutes. As the elapse of time is neutral, the onus of proof does not shift.

[120] For these reasons senior counsel moved me to sustain the first and third pleas-in-law for the defenders and to grant absolvitor.

Reply for the pursuer

[121] Senior counsel for the pursuer replied that it was a deliberate decision not to ask questions of midwife Terris as to what happened between 06.20 and 07.20, because it was incumbent on the defenders to explain this delay in their defences. It was averred on behalf of the pursuer that a caesarean section was required as an emergency; the defenders do not deny that it was an emergency. It was incumbent on the pursuer to prove a foreseeable risk to the child, and the time of the decision to operate, and the time of delivery, and that delivery could have happened within thirty minutes of the decision. The pursuer has proved each of these elements. It was up to the defenders to show what happened and why there was a DDI of sixty minutes rather than thirty minutes.

Discussion

[122] I consider each of the four cases of fault averred by the pursuer in turn.

The first call

[123] The first matter to be determined in this respect is what was said in the course of this telephone conversation. Determination of this issue depends on an assessment of the credibility and reliability of the pursuer, her husband and midwife Davidson.

[124] I found the pursuer to be generally a credible and reliable witness in relation to the events before her admission to BGH. She accepted that her recollection of events after her admission to hospital was vague in parts, and she let others take control. However, although like all the other witnesses she was speaking to events more than thirteen years ago, I formed the impression that her recollection of this first call was reasonably clear. I also found her to be a truthful witness. She struck me as doing her best to assist the court, and she did not exaggerate or embellish her evidence. She was quite prepared to state that she could not remember something, and she conceded that her original recollection was that she made four telephone calls to the hospital but that this had been shown to be wrong. I accepted her version of the first call. I found the pursuer's husband to be a less reliable witness, although I do not suggest that he was not doing his best to be truthful. His recollection of the precise sequence of events after he took the pursuer to BGH was in my view somewhat confused. However, his recollection of the first call was clear. He supported his wife about the presence of the green sticky discharge, that she mentioned it when speaking to the lady in the first call, and that the lady at BGH was reluctant that they should attend at that stage and sought to dissuade them from doing so.

[125] Against this evidence, midwife Davidson could not remember the first call at all. I make it clear at the outset that I make no criticism of her in this respect: she impressed me as being a truthful witness, and she was doing her best to help the court. She deserves credit for not claiming to remember this conversation. She stated that she took hundreds of calls each year, and it is no surprise that she could not remember this particular call. However, the fact remains that she could not remember it; all she could do was to state what her normal practice would be.

[126] Apart from the pursuer's general demeanour when giving evidence, there are several factors which give some support to her evidence. This was her first pregnancy; it is not surprising (particularly standing the subsequent difficulties with Nathan) that she should have a clear recollection of the events leading up to her admission to hospital. The findings after her admission to hospital are entirely consistent with her noticing a green sticky discharge shortly before the first call. Given that the presence of this green sticky discharge was the only reason for the telephone call, it seems unlikely that she would fail to mention in the course of the call that she had had this green sticky discharge, or to ask what it was. There is no reason to think that she would volunteer the word "show", nor that she would describe what she had found as her show, rather than as a green sticky discharge. Her position in evidence was that if she had been asked if it was her show, she would have replied that it was green sticky stuff and what was it. Moreover parties are agreed that the entire duration of this call was one minute and twenty four seconds. While I accept Mr Regan's evidence that it would be possible to elicit all the necessary information from the pursuer in this time, the duration of the second call was significantly longer than that of the first, and midwife Davidson appears to have obtained information on a variety of subjects. The length of the call does not suggest that there was much discussion about each of these. If the pursuer had merely stated that she had had some form of discharge, it seems unlikely that midwife Davidson would have had sufficient time in the course of this call to obtain further information as to its colour and consistency. In the course of such a short call, it seems unlikely that even a midwife of her experience would be able to assess with confidence that the pursuer knew what she was talking about if indeed the pursuer did describe this as her show.

[127] All that midwife Davidson could base her evidence on was her normal practice when taking such a call, and the terms of the note which is page 39 of No 7/1 of process. This note was not taken at the time of the conversation, and (a source of comment by Mr Regan) does not contain details of the pursuer's address or telephone number. I accept the point made on behalf of the defenders that it was such an elementary matter that if the pursuer had reported a green sticky discharge she would have been advised to come to hospital immediately, that one would expect midwife Davidson to give such advice and would also expect to see this noted on the form. However, whilst it is unnecessary to speculate, it may be that she was distracted by another case; there may be many explanations, but it is surely a rare professional person who can assert honestly that in the course of a long career they have never made a slip or error. To be fair to her, midwife Davidson did not assert this in her evidence in this case. Weighing these factors together, I am satisfied on the balance of probabilities that the pursuer did explain during the first call that she had had a green sticky discharge. Midwife Davidson noted this as a "show" and told the pursuer that this was what it was, and that there was no need for her to come into hospital at that time and discouraged her from doing so.

[128] In light of these findings, there is I think no dispute that midwife Davidson was at fault. She herself stated in evidence that if a woman had said that she had had a sticky green discharge and she was not told to come into hospital, that would be absolutely unacceptable. Mr Regan and Professor Elder were broadly of the same view, and senior counsel for the defenders accepted in his submissions that in these circumstances midwife Davidson's actions would properly be found to be below the standard to be expected of the ordinarily competent midwife exercising ordinary skill and care, and a proof before answer on causation would be required. I am satisfied that the pursuer has succeeded in establishing this first ground of negligence.

The second call

[129] My observations above with regard to the general credibility of the pursuer apply also with regard to the second call. Her husband did not witness this call. Mrs Terris remembered the call. Less turns on the issues of credibility and reliability in relation to this call, but I found midwife Terris's evidence to be generally credible and reliable. For what it is worth, I am inclined to think that the pursuer may have been unduly sensitive when she gained the impression that midwife Terris sought to dissuade her from coming into hospital at this stage. The pursuer had previously been dissuaded from travelling to BGH as a result of the first call; in the second call, midwife Terris advised her a few times to go for a bath, and the pursuer gained the impression that she was not keen for her to come into hospital, but she said that she could come in if she wanted to. The pursuer observed that she felt she was maybe being a bit neurotic and a nuisance, so she backed down and went to have a bath.

[130] Whether the pursuer's impression was accurate or not is not of central importance on this issue. The pursuer accepted in evidence that she did not volunteer any further information about the green sticky stuff during this call, because there had not been any more. The reason for this second call was the pain which she was suffering in her back and at the top of her legs. She did not remember if the lady at the other end of the phone asked if she had had any kind of fluid discharge. On these matters midwife Terris's recollection was consistent with the evidence of the pursuer - she was clear that the pursuer did not mention any green sticky stuff. She would have asked the pursuer some questions, but she could not remember exactly what these were - they would be noted on the sheet. Although in 1997 she would routinely ask if a lady had a mucousy discharge, and if so what colour it was, she thought the points which had been noted in relation to the first call on the form at page 39 of the notes had already been sorted out, and there was no need for clarification. There is in fact nothing in the notes of the second call at page 39 to suggest that midwife Terris asked the pursuer whether she had had any form of discharge. In light of all this evidence, it may safely be inferred that midwife Terris did not ask the pursuer in the second call anything about whether she had had a discharge, nor the colour or consistency of such a discharge.

[131] Mr Regan, the midwifery expert, was of the opinion that midwife Terris ought to have asked the pursuer about vaginal loss, and ought to have noted her answers (see paragraph [45] above), and that if she failed to do so this would fall below the standard of care to be expected of a competent midwife. This evidence was not contradicted.

[132] I am satisfied that midwife Terris did not take any details during the second call from the pursuer about vaginal discharge. If she had asked about this, I am satisfied that the pursuer would have told her about the green sticky discharge which had prompted the first call. If the pursuer had described this to midwife Terris, on the balance of probabilities I consider that midwife Terris would have advised her to come into hospital immediately. I am satisfied that the failure by midwife Terris to ask the pursuer any questions about vaginal discharge was negligent. In 1997 no ordinarily competent midwife exercising ordinary skill and care would have failed to ask such a question. It follows that the pursuer has made out her second ground of negligence against the defenders.

The case against Dr Rodger as an individual

[133] Before considering the evidence in this regard, two important matters were raised in submissions, which have a bearing both on this ground of fault and also the "system" case. First, I agree with the point made by senior counsel for the defenders that the defenders only have to meet the case made against them on the closed record. In an action founded on the alleged negligence of a professional person, a pursuer is not entitled to explore all areas in which that person's actings or omissions may have fallen below the requisite standard. It is only those acts or omissions, and those alleged breaches of duty, of which the pursuer has given fair notice to the defenders that he intends to place reliance on that he can found on at a proof before answer. A defender is not obliged to prepare to meet a case which is not averred against him. As Lord President Clyde observed in Morrisons Associated Companies Limited v James Rome and Sons Limited 1964 SC 160 at 182:

"It is a well settled rule of our practice in pleading in Scotland that when a duty in general terms is averred, followed by a particularisation of the specific way or ways in which it is alleged that that duty has been breached, the inquiry on the facts is restricted to the specific breach or breaches of which notice has been given, and evidence directed to some other unspecified way in which the general duty may have been breached is excluded. The pursuer stands or falls on his establishing his averments of the specific breach or breaches. Parties in Scotland rely on this rule and do not therefore prepare to meet a case of which they have no such specific notice."

[134] Lord Guthrie observed at page 190 of the same case:

"It is a fundamental rule of our pleading that a party is not entitled to establish a case against his opponent of which the other has not received fair notice upon record. It follows that a defender cannot be held liable upon a ground which is not included in the averments made against him by the pursuer. These are not mere technical rules, since their disregard would tend to create injustice, by imposing liability upon a defender for reasons which he had no opportunity to refute".

[135] Since these observations were made, a much more concise form of pleadings had been introduced for actions for personal injuries falling under Chapter 43 of the Rules of the Court of Session. Actions proceeding under this chapter of the Rules have several features which distinguish them from ordinary actions; for example, a timetable is laid down by the court, certain procedural steps are required which are not required in ordinary actions, and there is less focus on detailed and accurate averments or the statement of legal propositions in pleas-in-law. Even in Chapter 43 proceedings there is however a need to give fair notice to the other side of the factual and legal basis of a case. However, the present action was withdrawn from the procedure under Chapter 43 by interlocutor dated
26 June 2007. In an action such as this, I consider that the submissions for the defenders are well founded in this regard, and that the observations of the First Division quoted above are still good law and binding upon me. This is not a general inquiry into ways in which Dr Rodger or the defenders may possibly have been negligent; it is focused on the particular averments for the pursuer.

[136] The second issue is where the onus of proof lies. Although senior counsel for the pursuer made it clear that she did not rely on the maxim res ipsa loquitur, she maintained that in the circumstances of this action once she had proved that the requirements for an emergency caesarean section had been made out, the onus of proof shifted to the defenders to show that they did in fact carry it out urgently or in a reasonable time. The defenders maintained that the onus of proof rested with the pursuer throughout, and where there is direct evidence available as to what occurred there is no need to rely on inferences. The mere fact of a DDI of sixty minutes is not of itself indicative of negligence; there may be negligent and non-negligent explanations for the passage of time, so it is a neutral factor which does not cause the onus of proof to shift.

[137] I consider that the defenders' submissions on this point are correct. In considering the case of negligence against Dr Rodger as an individual, on her evidence she was scrubbed up and ready in the operating theatre, waiting for the pursuer to be brought in. The only duty of care averred to have been incumbent on her is to be found at Article 5 of Condescendence, "It was her duty in the exercise of reasonable care to have carried out said caesarean section no more than thirty minutes from the time of the decision to carry out said procedure." It is not averred that there was any duty on her to leave the operating theatre and find out why the pursuer had not been brought to her. The mere elapse of time of itself is not an event which can give rise to an inference of negligence on Dr Rodger's part such as to cause the onus to shift to the defenders.

[138] Moreover, as was observed in Ratcliffe v Plymouth and Torbay Health Authority, where there is evidence available to explain or shed light on what was happening, there is no need for the court to draw inferences. In this case midwife Terris was with the pursuer throughout the period from 06.20 to 07.20. She was not asked what was happening during this period, nor why it took one hour from decision to delivery. Quite properly, she was called as a witness for the pursuer. I do not consider that the pursuer can ask the court to draw an inference adverse to Dr Rodger or to the defenders, when evidence was available to shed light on this period. I am not persuaded that the burden of proof shifted to the defenders.

[139] I am also not persuaded on the evidence that no reasonably skilled and competent obstetrician would have failed to carry out a caesarean section in the circumstances of this case within thirty minutes from the time of the decision to carry out the procedure. In this regard the pursuer relied on the expert evidence of Professors Elder and Arulkumaran. Although Professor Elder was undoubtedly an expert obstetrician who was still in practice in 1997, I share some of the reservations about his evidence which were expressed by senior counsel for the defenders and which are stated in his written submissions (particularly at pages 23/25). There is some force in the criticism that he did not show the professional detachment and independence generally to be expected of an expert witness. He expressed himself very forcefully in favour of the pursuer, without providing any textbook or learned writing to support his position. Some of the language which he used in his report and in his evidence was less measured than might have been expected - for example, he referred to perinatal meetings as "witch hunts" and stated that he suspected the whole lot had got together and decided to pass the buck onto the patient. He conceded that he had no proof that the note made by Dr Rodger at the last four lines of page 26 of the case notes was an attempt to cover up, but he maintained that he had grounds for suspicion that it was. He was prepared to express views on some matters (e.g. the cause of the trolley getting stuck and how long it would take to sort this, or the physical relationship between the labour ward and the operating theatre) about which he was not in possession of all the factual details. Ultimately he accepted that some of the views which he had expressed (e.g. the last sentence of paragraph 5.11 of his report) might be a little out of order, but he persisted in maintaining that the last entry on page 26 was a fabrication. He also expressed the opinion very firmly that in an urgent case in 1997 there was no doubt that the maximum DDI was thirty minutes and that although it may not have been written down in black and white, an obstetrician should have achieved this. However, he then observed that it might not be the obstetrician's fault -perhaps he was being overcritical, and there might be other factors beyond her control which caused the delay.

[140] Professor Arulkumaran gave his evidence in a much more measured and careful way. His qualifications and experience are beyond criticism, and I found him to be in many ways an impressive witness. However, there were two respects in which I had reservations about his evidence in so far as going to support a case of professional negligence against Dr Rodger as an individual. The first may simply be an example of the way in which the medical profession and the legal profession may use language differently, but it may be important. Professor Arulkumaran did not state in terms that Dr Rodger had breached the only specific duty which was averred to have been incumbent on her, namely to have carried out said caesarean section not more than thirty minutes from the time of the decision to carry out said procedure. He did not address directly the test as set out in Hunter v Hanley or other more recent formulations such as adopted in Gerrard v Royal Infirmary of Edinburgh NHS Trust. He agreed that a thirty minute DDI was the "benchmark" or "the ideal goal". At another time he described it as "the recommendation". However, I did not understand him to be expressing the opinion that in the circumstances of this particular case no ordinarily skilled and competent obstetrician exercising ordinary skill and care would have failed to achieve delivery within thirty minutes of 06.20. He agreed that delivery should have been accomplished by 06.50, but the purpose of the various reports, audits and guidelines which have been published since 1997 was to improve systems. In short, I did not understand him to be expressing the opinion that a DDI of thirty minutes was an absolute maximum in such circumstances, and that any longer period would indicate that the obstetrician was negligent.

[141] The second area of Professor Arulkumaran's evidence which caused me concern was that he tended to elide criticism of the individual obstetrician with criticism of the team and criticism of the system. He was asked whether the obstetrician in BGH was responsible for delivery in a DDI of thirty minutes and he observed that the delay was usually in the transfer from the ward to the theatre. He was asked who was responsible for that delay and he replied that it was a system error - the whole team, including midwives, anaesthetist and surgeon had to work together in order to achieve this. However, he was referred to paragraph 6.4 of Professor Elder's report (No 6/9 of process), which ascribed blame to the obstetrician over a period of one hour and thirty five minutes (which is not the basis of the pursuers case against Dr Rodger) and he agreed with this. In answer to a question from the court he appeared to describe the delay between 06.20 and 06.50 as caused by a system error, not by an error or fault of the obstetrician. In cross-examination it was put to him that Dr Rodger did not fall below the standard of an obstetrician of ordinary competence exercising reasonable skill and care, and he replied that she was part of the responsible team, but he then went on to observe that he would say that as an individual Dr Rodger did fall below the requisite standard, because he would not stand in theatre for thirty minutes, he would have gone to see what had happened to the woman. Very shortly after this he accepted that there were a host of potential problems which could have caused delay, but it was still substandard care; he could not ascribe fault to one individual, but the system had failed Nathan. Finally he was asked whether he could conclude that no reasonably competent obstetrician exercising ordinary skill and care would have failed to effect deliver within thirty minutes of 06.20 if all he knew was the fact of the elapse of time between 06.20 and 07.20; he replied that it was primarily the responsibility of the obstetrician, but she has to rely on others - we have to look to how the system could be improved. He agreed that his answer depended on knowing the factors which caused the delay, and it was not solely the blame of the individual, but the system also had to take the blame.

[142] In light of the concerns expressed above about Professor Arulkumaran's evidence, and the unsatisfactory nature of Professor Elder's evidence, I should have had reservations, even without considering Professor Cameron's evidence, as to whether the pursuer had proved a breach by Dr Rodger of the only duty of care averred to be incumbent on her.

[143] Professor Cameron's expert opinion was directly contradictory to many aspects of the evidence of Professor Elder and Professor Arulkumaran. He was not aware of any guidelines as to a recommended DDI in November
1997 in Scotland. Even by 2001 or
2004 a thirty minute figure remained an aspiration and a target. He was asked whether in failing to deliver Nathan before 06.50 Dr Rodger fell below the standard of an ordinarily competent obstetrician exercising reasonable skill and care and he stated that he was not of that opinion - the time taken was acceptable practice in 1997, and the information available to Dr Rodger was not such as to indicate that this case was of the highest urgency. He was asked whether in Scotland in 1997 hospitals invariably delivered babies by caesarean section within a thirty minute DDI and he stated that in his opinion they did not. He had conducted a small audit in his own hospital and found that they did not achieve this, and this was a consistent finding. He disagreed with Professor Elder's evidence that it was a well established professional norm in 1997 that an obstetrician would deliver within thirty minutes in a case of fetal distress. He disagreed that this was taught in the 1960s; there was no absolute deadline of thirty minutes, and he had never been taught that there was a thirty minute maximum for cases of fetal distress. The present case would be categorised as category 2 under the present guidelines; the CTG trace was not so concerning as to warrant a crash caesarean section. He did not consider that Dr Rodger fell below the requisite standard of care. It was put to him on several occasions that, on the basis of the information available to Dr Rodger, no ordinarily competent obstetrician would have failed to achieve a DDI of thirty minutes, and on each occasion he refused to accept this. He observed that the risk to the fetus did not justify this, and that Dr Rodger did not need to perform this operation straightaway, but rather she should have prepared for theatre in the normal way. He did not believe that it was the normal practice to effect delivery within thirty minutes of the decision to perform a caesarean section in cases of fetal distress in 1997.

[144] Professor Cameron gave his evidence in a measured, detached and professional manner. I did not have any of the concerns about his evidence that I have noted above with regard to Professor Elder, nor did I have the reservations (nor any similar reservations) as those noted with regard to Professor Arulkumaran's evidence.

[145] To the extent that the evidence of these three experts discloses two opposing schools of thought as to the appropriateness of a particular practice, I am in complete agreement with the views expressed by Lord Hodge in Dineley v Lothian Health Board [2007] CSOH 154 and Honisz v Lothian Health Board [2006] CSOH 24. It is not the function of the court to prefer one school of thought over the other. I do not consider that this is one of those exceptional cases in which the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis. To use the language of Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority, I am not satisfied that Professor Cameron's expert opinion cannot logically be supported at all.

[146] I have carried out the exercise described by Stuart Smith LJ in Loveday v Renton (at page 125) of evaluating the evidence of each of the three eminent obstetricians and the soundness of their opinions. As was observed in that case, in relation to each of the witnesses "this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to a searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence."

[147] Considering all of these factors, I find that there is nothing to cause me to have any doubts or reservations about the evidence of Professor Cameron. He expressed his views logically and clearly, and there is nothing to suggest that he reached these views on a mistaken or incomplete understanding of the facts of this case. His assessment of the risks to both Nathan and the pursuer of proceeding to surgery with greater haste was similar to that of Dr Rodger herself, and I am unable to conclude that this assessment was mistaken, illogical or wrong. It follows that the pursuer's third ground of fault in this action fails. I am not persuaded that the pursuer has established that it was Dr Rodger's duty to have carried out this caesarean section not more than thirty minutes from the time of the decision to carry out the procedure.

The "system" case

[148] There is only one sentence in the pursuer's averments to provide a basis for this case, which is in the following terms:

"Esto the attending obstetrician, having appropriately decided on an emergency section at about 06.20, was not herself responsible for the delay until delivery, which is not known and not admitted, the defenders had a duty to devise and maintain a safe system, whereby the clinician's decision to deliver Nathan as an emergency would be carried out within thirty minutes."

[149] As noted above, senior counsel for the defenders attacked this case on three grounds. The first of these was that no duty of care exists, largely because there is insufficient proximity for a duty of care to arise and because it would not be fair, just and reasonable for such a duty to exist. I am not persuaded by the argument that there is insufficient proximity. The defenders operate a general hospital at BGH, at which there is a labour ward and an operating theatre in which caesarean sections are performed. The defenders employ midwives, anaesthetists and obstetricians for the purpose of delivering babies. They provide these facilities and services for any pregnant woman who happens to have complications with her pregnancy or who goes into labour within their geographical area. I consider that this amounts to a relationship characterised by the law as one of proximity or neighbourhood. I am also not persuaded by the argument that it would not be fair, just and reasonable for such a duty to exist. I shall examine the particular scope of the duty said to exist below, but in general terms I see nothing unfair, unjust or unreasonable in asserting that a hospital authority holding itself out as providing maternity services owes a duty of care to pregnant women who avail themselves of those services.

[150] The defenders' second attack on the system case was that there were no averments as to what a safe system is and how any system the defenders operated was deficient, nor was there any evidence whatsoever directed to these matters. I consider this criticism to be well founded. I regard it as standard practice, when making averments in an ordinary action in our courts based on failure to devise or maintain a safe system of work, to make averments as to what the requisites of a safe system in a given situation were, and in what respects the system devised or maintained by the defenders fell short of this. This is not a mere technical pleading point - without such averments, there is no fair notice given to the defenders of the case which they must meet. Moreover, it is impossible for the court to consider whether it is fair, just and reasonable to impose a duty of a given scope upon the defenders, because nowhere is the scope of that duty specified. Should a safe system have involved the provision of more midwives, or additional anaesthetists or porters? Ought the defenders in 1997 to have maintained a clinical risk management system? Ought the managers at BGH to have trained midwives, anaesthetists and obstetricians working there that in all cases involving the presence of meconium and a non-reassuring CTG trace a DDI of no more than thirty minutes must be achieved? Was this training given? Was it subsequently enforced, and if so, how? No scope whatsoever is given in the single averment, made on an esto basis, that the defenders had a duty to devise and maintain a safe system. In what respects was the system unsafe, and what steps should the defenders have taken to render it safe?

[151] The pursuer's case appears to have proceeded on the basis that the mere elapse of more than thirty minutes from decision to delivery indicated an unsafe system, but that cannot be so - the case is pled on an esto basis, and the elapse of time (or, to use the pursuer's term, the "delay") may have been attributable to the obstetrician. I have already held that the case of fault against Dr Rodger as an individual has not succeeded, but the mere fact that the pursuer made that case indicates that the passage of more than thirty minutes is not necessarily attributable to an unsafe system.

[152] Examples of pleadings relating to unsafe system abound, but one example of the sort of specification normally to be seen is discussed in Gunn v McAdam and Son, referred to by senior counsel for the pursuer. In that case a railwayman lost his life as a result of a collision between the trolley he was in and a trailer/bogie travelling in the opposite direction. Although the pursuer's case was directed against the defenders' employees (and so was not a "system" case) there were averments such as "it was their duty to secure the said bogies by handbrake and by wheel wedges or by attaching them to the mobile crane which was in use at the place of operations, until they were ready to be taken away by the said trolley. These duties were particularly incumbent upon the first named defenders' servants because the part of the line on which the bogies were being loaded sloped downwards on a gradient of
1 in 50 to the north, and at the material time a strong wind was blowing from a southerly direction". The pursuers then went on to aver that "It was usual in such circumstances to attach the bogies to the crane, and to remove the wedges from the wheels of the bogies and of the crane, and then for the crane and bogies together to move the required distance. Instead of doing this the first named defenders' servants did not attach the bogies to the crane, but removed the wedges from the bogies' wheels, with the result that the bogies moved off down the incline and ran out of control and with increasing speed for about three miles until they collided with the trolley on which the deceased was travelling."

[153] Clearly the circumstances of that case could hardly be more removed from the circumstances of the present case. Moreover, the Lord Ordinary in that case held that the pursuers' averments were insufficiently specific to constitute a relevant case, and the First Division held that he was wrong to do so. Of course I accept the First Division's decision on this matter. However, the case illustrates the sort of specification that is required in order to give fair notice to the other side (a) of what should have happened and (b) in what respects what actually happened fell short of the requisite standard. This is in stark contrast to the single sentence on which the pursuer's "system" case is based in the present action. The absence of averments in the pleadings was mirrored by absence of evidence at the proof. Information could have been obtained and made the subject of averment and evidence, but it was not. Midwife Terris was called as a witness for the pursuer, but she was not asked any questions about the defenders' system, nor what in fact happened between 06.20 and 07.20. Taking account of all of these factors, I do not consider that the pursuer has averred or proved a relevant case against the defenders of failure to devise and maintain a safe system.

[154] I reiterate that I take this view not on the basis of a technical consideration of the pursuer's pleadings, but because I regard it as an essential element of fair notice to the defenders, and necessary to enable the court to consider the scope of the duty which the defenders are averred to have breached. However, if I am wrong in this, in any event I was not persuaded by the expert evidence that the defenders owed a duty to the pursuer to devise and maintain a system whereby the clinician's decision to deliver Nathan as an emergency would be carried out within thirty minutes. I reach this conclusion essentially for the same reasons that I have given above for preferring the evidence of Professor Cameron to that of Professor Elder and Professor Arulkumaran. Professor Cameron stated that clinical risk management was not in place in 1997, and that in circumstances such as this in 1997 hospitals in Scotland did not invariably deliver babies by caesarean section within a thirty minute DDI, on the basis of his own experience and the audit carried out in his own hospital. He stated that there was no absolute target of thirty minutes, and that the CTG traces in this case were not so non-reassuring as to require an operation on the pursuers straightaway; rather, the pursuer should be prepared for theatre in the normal way. I am not satisfied, on the evidence which I heard, that the defenders were under a duty such as is averred. Although this was properly categorized in 1997 as an emergency section, this was in contradistinction to an elective section. I am not persuaded that the urgency in this case, on the basis of the relevant information, was such that it required to be carried out within thirty minutes of the decision to perform the operation.

[155] For these reasons the pursuer's fourth case against the defenders fails. I am not satisfied that the defenders were in breach of a relevant duty of care owed by them to the pursuer in respect of a safe system of working.

Conclusion

[156] In summary, I am not satisfied that the pursuer has established negligence against the defenders on the basis either of the actings or omissions of Dr Rodger as an individual, or a failure to devise and maintain a safe system. However, I am satisfied that the pursuer has established negligence on the part of the defenders in relation to each of the first call and the second call. It will therefore be necessary to proceed to a proof before answer on issues of causation (and, it may be, quantum) in relation to these two grounds of action.