EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 78
Lord Eassie Lady Clark of Calton Lord Wheatley	A386/06   OPINION OF THE COURT   delivered by LADY CLARK OF CALTON   in the reclaiming motion   HELEN COYLE, on behalf of RYANCOYLE Pursuer and respondent:   against   LANARKSHIRE HEALTH BOARD Defenders and reclaimers;   _______________

 

Act:  Smith QC, Sutherland;  Drummond Miller LLP (for Trainor Alston, Coatbridge)

Alt:  Anderson QC, Mackenzie;  NHS Scotland Central Legal Office

 

 

25 September 2014

 

The issue to be decided in the reclaiming motion
[1]        After a proof in this action for damages for personal injury suffered by the pursuer’s child during childbirth, the Lord Ordinary decided the issues of liability and causation in favour of the pursuer.  No challenge is made to the findings in respect of breach of duty made by the Lord Ordinary.  In the reclaiming motion the challenge is to the finding that there was a causal connection between the breach of duty by the midwives, who failed to call for urgent medical assistance for the pursuer during labour, and the injuries suffered by the child when he was born. 

[2]        The question to be decided by the court is whether the Lord Ordinary was plainly wrong in concluding, on the balance of probability, that if the obstetrician had been summoned by the midwives at the time of 2255 hours on 18 August 1993, the child would have been delivered by 2315.   The evidence relating to the period of time between 2255 and 2315, the approach adopted by the Lord Ordinary to the available evidence, and his reasoning were the focus of the reclaiming motion.

 

History
[3]        The pursuer and respondent (“the respondent”) gave birth to her son, Ryan Coyle, at Bellshill Maternity Hospital on 18 August 1993.  Ryan has severe quadriplegic cerebral palsy resulting from chronic partial asphyxia which occurred during the respondent’s labour. 

[4]        The respondent was appointed as welfare and financial guardian of Ryan.  In that capacity, she raised this action for damages against the defenders and reclaimers (“the reclaimers”) for loss, injury and damage suffered by Ryan on the basis of alleged fault and negligence on the part of the obstetrician, Dr Anderson, and midwives employed by the reclaimers.  The foundation of the action is set out in the pleadings in the amended closed record.  There are averments that delivery ought to have been expedited and that the injury sustained by Ryan would thereby have been avoided (Articles 13 and 19).  In defending the action, the reclaimers pled that there was no fault on the part of the obstetrician, Dr Anderson, and that any fault on the part of the midwives was not causative of Ryan’s injury. 

[5]        A proof was heard before the Lord Ordinary restricted to issues of liability and causation only.  Damages were agreed by the parties in the event that the respondent was successful.

[6]        The Lord Ordinary, in his opinion dated 24 October 2013 [2013] CSOH 167, did not accept evidence in support of the averments of fault, pled by the respondent, based upon failure on the part of Dr Anderson to take fetal blood samples on occasions when he examined the respondent at the times of about 1923 and 2147 on 18 August 1993 during her labour.  The respondent therefore failed to prove fault and negligence by Dr Anderson. 

[7]        The Lord Ordinary did uphold part of the respondent’s case.  This was based on averments that there was failure to seek urgent medical assistance by the attending midwives at or after 2245 on 18 August 1993.  In upholding this part of the respondent’s case, the Lord Ordinary found that the time at which medical assistance ought to have been sought by the midwives was 2255. 

[8]        During the course of the proof, the parties agreed by joint minute:

“Had Ryan been born prior to 2315 on 18 August 1993, he would not have suffered the injury that he now suffers from.”

 

[9]        An analysis of the evidence during the period of time between 2255 and 2315 was obviously crucial to the Lord Ordinary’s conclusions.  

 

The legal framework:  submissions by counsel
[10]      Counsel for the reclaimers accepted that the Lord Ordinary had identified in paragraph 60 of his opinion the correct legal test relating to the issues in dispute.  The test is whether the respondent had proved, on the balance of probability, that if the midwives had fulfilled the duty incumbent upon them of seeking the assistance of the obstetrician on duty, Ryan’s delivery would have been completed before 2315. 

[11]      Counsel for both parties submitted that the approach to be adopted by the appellate court in a case such as this is founded on Thomas v Thomas 1947 SC(HL)45.  Senior counsel for the reclaimers accepted that before an appellate court may disturb a finding in fact made by the Lord Ordinary, it must be satisfied that the judge was “plainly wrong” and that this is a high test. 

[12]      Although counsel for both parties accepted that the principles and approach in Thomas were to be applied, counsel were not in agreement about the effect to be given to later case law, in particular, McGraddie v McGraddie 2013 SLT 2012 and Henderson v Foxworth Investments Ltd and another [2014] UKSC 41. 

[13]      In summary, senior counsel for the reclaimers submitted that these later cases were illustrative of the Thomas principles but did not develop or innovate upon the principles.  He also emphasised that both these cases, in contrast to the present case, were dealing with the assessment of witness evidence in which issues of credibility and reliability were important.  Senior counsel for the reclaimers submitted however that in the present case there was a single issue raised by the reclaimers to the effect that the opinion of the Lord Ordinary was not supported by the evidence.  He further submitted that the attack on the decision-making of the Lord Ordinary had nothing to do with the assessment by the Lord Ordinary of the credibility or reliability of witnesses, in particular Dr Anderson.  It also had nothing to do with resolving disputed issues about fact.  These were critical issues in Thomas, McGraddie and Henderson but not in the present case.  In the present case, the Lord Ordinary had misinterpreted and misunderstood the evidence as well as misnoting critical evidence in his opinion in paragraphs 50 and 59.  The evidence was available to the appeal court and the court was as well placed to consider it as the Lord Ordinary.  The Lord Ordinary did not enjoy any great advantage where, as in this case, credibility and reliability were not in issue.  On appeal, the court required to decide whether the Lord Ordinary had reached a conclusion which is “plainly wrong” or, adopting the language of Lord Reed in Henderson, a decision “that no reasonable judge could reach”. 

[14]      Senior counsel for the respondent submitted that the principles in Thomas were not restricted or confined to cases where the Lord Ordinary was required to resolve difficult questions of credibility and reliability.  Even in cases where these issues were not fundamental, the determination of the facts and the weight to be given to the facts in a particular case was the major task of the first instance judge.  Seeing and hearing all the evidence in a case is the major advantage enjoyed by such a judge.  Examining the printed notes of evidence or, as proposed by the reclaimers in this case, only parts of the printed notes of evidence put the court at a severe disadvantage on appeal.

 

Underlying policy reasons
[15]      We consider it instructive to refer briefly to the policy reasons which have led to a restrictive approach by the appeal court to interfering with decisions of fact made by a first instance judge after an evidential hearing.  In McGraddie, (paragraph 3), policy reasons are discussed under reference to the United States Supreme Court discussion in Anderson v City of Bessemer 470 U.S. (1985).  In Anderson, the United States Supreme Court stated at pages 574‑575:

“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility.  The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.  Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.  In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one;  requiring them to persuade three more judges at the appellate level is requiring too much.  As the Court has stated in a different context, the trial on the merits should be ‘the “main event”…rather than a “tryout on the road.”’…For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.”

 

[16]      While the advantage enjoyed by the judge at first instance in hearing and seeing the witnesses is no doubt greater where questions of credibility and reliability are raised, we do not consider that the deference to the findings of the trial judge which is described in Thomas is restricted to cases where credibility and reliability are in issue.  Any determination about evidence requires a judgment to be made and the trial judge is best placed to make that decision having seen and heard the witnesses.  A partial or full printed text of the evidence cannot be an equivalent substitute although in circumstances where the matter becomes at large for the appeal court, the transcript of the evidence may be the best information available. 

 

The legal test to be met by the reclaimers
[17]      We therefore accept that the appropriate test for this court to apply is the test articulated in the speech of Lord Thankerton at page 54 where he stated:

“…(3) The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

 

More recently in considering the test for interference by an appellate court and the terms “plainly wrong”, Lord Reed stated in Henderson at paragraph 62:

“…There is a risk that it may be misunderstood.  The adverb ‘plainly’ does not refer to the decree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge.  It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

 

Lord Reed further considered the various formulations used by the judges in Thomas and concluded in paragraph 66:

“These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown ‘otherwise to have gone plainly wrong’.  Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.”

 

[18]      Senior counsel for the reclaimers did not shrink from accepting the high test he required to meet to persuade the court that the Lord Ordinary was “plainly wrong” in the sense explained by Lord Reed.  He sought to persuade us to that effect by inviting us to consider in detail certain parts of the transcripts of the evidence, particularly the evidence of Dr Anderson. 

 

The evidence:  submissions by counsel

For the reclaimers
[19]      Junior counsel opened the case for the reclaimers in a clear and well-presented submission.  He submitted that neither the reasoning of the Lord Ordinary nor the evidence supported the conclusion reached by the Lord Ordinary.  He accepted that the best evidence of what Dr Anderson would have done, if he had been called by the midwives, came from Dr Anderson.  In assessing Dr Anderson’s evidence, the Lord Ordinary had not understood or noted Dr Anderson’s evidence correctly.  In particular, in assessing Dr Anderson’s evidence, the Lord Ordinary failed to appreciate that there was a distinction drawn in the evidence between an emergency delivery and a delivery that is urgent.  

[20]      Junior counsel submitted that the Lord Ordinary also erred as he prayed in aid, in support of his conclusion, other evidence on which he was not entitled to rely;  that was evidence about delivery times in emergency cases given by the respondent’s expert, Dr Smith and evidence relating to delivery times from the literature which did not assist with this issue. 

[21]      Senior counsel in adopting the submission of junior counsel, submitted that the single point in the reclaiming motion was that the Lord Ordinary’s opinion was not supported by the evidence.  He submitted that it was plain that the Lord Ordinary had misnoted and misunderstood the evidence because the totality of the evidence, properly understood, admitted of only one interpretation which did not support a finding that on the balance of probability Ryan would have been delivered by 2315 but instead demonstrated delivery at a time later than 2315.  He accepted that the reclaimers’ position was not that there was no evidence but rather the Lord Ordinary in considering the evidence had reached a conclusion which is plainly wrong. 

[22]      Senior counsel made it plain that he was not disputing the conclusion of the Lord Ordinary that the time at which medical assistance should have been called for was 2255.  He also appeared to accept that the Lord Ordinary was entitled to conclude that the time by which Dr Anderson should have arrived was 2300.  He drew attention however to the way in which the Lord Ordinary expressed this conclusion in paragraph 58 where the Lord Ordinary held:

“On the basis of this evidence I hold, on balance of probabilities, that it would have taken Dr Anderson no more than five minutes to respond to an urgent call;  in other words, that he would have arrived at the pursuer’s delivery room by 2300 at the latest and perhaps a minute or two before then.”

 

He did not challenge the finding of 2300 but drew attention to the words used, “perhaps a minute or two before then”.  He submitted that this indicated that the Lord Ordinary was straying into the consideration of possibilities and, in any event, such a formulation was illogical as Dr Anderson gave evidence of a time range for arrival of five to ten minutes after a call. 

[23]      Senior counsel submitted that the critical evidence was the evidence of what Dr Anderson said he would have done if he had been called by the midwives at 2255.  The Lord Ordinary did not need to resolve conflicts in the evidence between the experts.  The expert evidence did not assist with the question of what Dr Anderson would have done.  In considering the evidence it was important to bear in mind that there was a difference, according to the evidence, in relation to response and timing for emergency or crash situations and situations involving urgency.  In an emergency situation there were no options, the baby required to be delivered as soon as possible.  Where there were degrees of urgency, there might be options to be considered and timings might differ and be longer.  It was important to understand this distinction in assessing the evidence of Dr Anderson and Dr Smith.  Unlike Dr Smith, Dr Anderson did not consider that the facts in this case would have presented an emergency.  Dr Anderson’s evidence was that the present case was a case of urgent review.  He said he would take time to review and consider his options. 

[24]      Senior counsel submitted that there was clear and uncontradicted evidence from Dr Anderson, that on arrival, he would not have proceeded immediately to expedite delivery but would have spent about five minutes in assessing the cardiotocograph (CTG) trace, obtaining information, examining the respondent and coming to a decision.  That left only ten minutes for preparing for delivery including the requisite anaesthesia, and the delivery itself.  The Lord Ordinary had erred in summarising Dr Anderson’s evidence in paragraphs 50 and 59 of his opinion and had fundamentally misunderstood the evidence of Dr Anderson. 

[25]      There were two additional criticisms directed to the reasoning process of the Lord Ordinary.  Senior counsel submitted firstly, that the Lord Ordinary had failed to appreciate that Dr Smith, unlike Dr Anderson, considered the CTG trace created the need for an emergency delivery not merely urgent review and consideration.  The Lord Ordinary erred in relying on the evidence of Dr Smith who gave evidence about the times based on “emergency delivery”.  Secondly, the Lord Ordinary erred when he drew comfort from evidence about one of the articles in the literature, the Murphy article,  in which a mean time of delivery of 14.5 minutes was given.  Such comfort was misplaced as the evidence about the literature clearly indicated a wide range of delivery times.  Averages about times of delivery could not assist to support a conclusion about a particular case. 

[26]      Senior counsel accepted that, on the evidence, a 10 minute period from arrival to delivery time was possible in the present case but that mere possibility did not entitle the Lord Ordinary to conclude that, on the balance of probability, Dr Anderson would have delivered Ryan before 2315.  The evidence clearly pointed to a delivery sometime after 2315.

 

For the respondent
[27]      In submissions, which were general in nature, junior counsel for the respondent invited the court to refuse the reclaiming motion as ill founded.  She emphasised the complexity of the case and the detailed evidence available to the Lord Ordinary about the nature and progression of the respondent’s labour and delivery of Ryan.  She submitted that this court should be slow to engage in a selective reading of evidence and reach different conclusions from the Lord Ordinary on the basis of partial printed evidence abstracted from a case.  She submitted that the respondents were not entitled to reargue the case to persuade this court to give different weight or different interpretation to the evidence.

[28]      Senior counsel submitted that he summarised the substance of the criticisms made by the reclaimers in the following way:

“1.       The answer provided by Dr. Anderson at MS 178, on the issue of delivery time, was misinterpreted by the Lord Ordinary.  It is apparently suggested that he was referring to one aspect of the delivery and not to the entire process once he arrived in the room;

2.         That the Lord Ordinary failed to consider the difference between crash/emergency/urgent or, perhaps, ordinary delivery.  This, they say would somehow have instructed him to reach a different conclusion to that which he reached in fact;  and

3.         The Lord Ordinary over emphasized the importance of the literature.”

 

[29]      In considering the evidence, senior counsel pointed to the absence of any cross‑examination on behalf of the reclaimers to the effect that a different delivery time from the decision to delivery would have occurred in the present case, compared with a crash delivery.  There was no evidence about what the difference in that time would be. 

[30]      Senior counsel also placed before us an extract from the written submissions of the reclaimers made to the Lord Ordinary.  Paragraph 91 referred to Dr Anderson’s evidence in this way:

“When asked to estimate the time from assessment to delivery, he thought ‘probably 15 to 20 minutes depending on the timing of the contractions’ (day 2), 1421, chief).  That was his first answer.  Then, under further questioning on the hypothesis that he had been there at 2300 he acceded to the suggestion that he could have delivered in 10 minutes, stating ‘that would be the quickest’.”

 

Senior counsel criticised what he said was an attempt by the reclaimers to reinterpret evidence.  At the time of the proof this evidence had been considered by both parties to be an acceptance that, in at least one part of his evidence, Dr Anderson accepted as “fair” that a delivery time of ten minutes from arrival to delivery was “the quickest”.   

[31]      In relation to the Lord Ordinary’s reference to the literature discussed in evidence, senior counsel submitted that this was plainly a crosscheck not the foundation of the Lord Ordinary’s decision.  Reference to literature was introduced by the reclaimers in their pleadings.  Both parties explored in evidence references to delivery times in articles, lodged as productions and made submissions to the Lord Ordinary in respect thereof. 

 

The evidence of Dr Anderson
[32]      We accept that the evidence of Dr Anderson is crucial evidence, albeit not the only relevant evidence.  In these circumstances, we have considered the evidence of Dr Anderson carefully and in detail bearing in mind the submissions of the parties.  A summary of evidence, bearing upon the issues in dispute in the reclaiming motion, may assist in explaining our analysis and conclusions.

[33]      Dr Anderson explained his qualifications and experience.  In August 1993, he was in a post as SHO3 in Bellshill Hospital in obstetrics and gynaecology.  This post he described as equivalent to a registrar.  He had about a year of experience in that post which included interpreting CTG traces and experience on the labour ward.  In about 1998/1999 he retrained as a GP and had practised as a GP since then (MS pages 118‑125). 

[34]      Although Dr Anderson had no recollection of being involved in the care of the respondent, it was not disputed that there was reference in the records to his attendance during her labour at the times of 1923 and 2147 on 18 August 1993.  He was not involved again with the respondent, prior to 2347, when the respondent had a spontaneous vaginal delivery following episiotomy at 2340, attended only by midwives.

[35]      During his evidence in chief, propositions were put to Dr Anderson by counsel in questions which were sometimes lengthy, complex and included various hypotheses.  It is plain from the questioning that senior counsel for the respondent was building in various factual circumstances, considered to be relevant to the respondent’s history and condition of the fetus, and inviting Dr Anderson to explain what he would have done had he been called to attend the respondent (MS page 144B).  We consider that in his answers, Dr Anderson tried to recreate what he thought would have happened.  He did so in detail, for example, commencing at MS page 145.  Dr Anderson often described what he thought would have been happening at the time and his thought processes, taking into account the variety of circumstances to be considered.  For example, Dr Anderson concluded that “…I would have re‑examined to see was she…was she in a suitable position for delivery and then made plans to do that.  How would depend on exactly what I found at that point” (MS page 148E).  He described this as “…so in a way I’m saying that really I want to expedite delivery” (MS page 149B).  He describes this also as ”…I would be looking to accelerate that, so that would be immediate delivery, yes” (MS page 149E). 

[36]      Dr Anderson was questioned about responding to an urgent call and  said he would expect the nurses to convey the degree of urgency(MS pages 152C‑154B).  He estimated five or ten minutes to respond, it would depend where he was in the building and he could not remember that.  He later agreed with the question that “…it’s from possibly zero to 10 minutes?” (MS page 154D).  He also said “...mainly it’s a few minutes from getting to the labour ward if required” (MS page 131B).

[37]      Dr Anderson explained why he would expedite the delivery and concluded “at that stage of labour you would just get on and make a decision to deliver, and then make the decision as to the best way to achieve that” (MS page 159B to C).  In answer to how long his examination and assessment would take in the present case against the background that he was treating it as an urgent situation he stated, “… talking about five minutes, in a range round about that, to make the exam, you know, scan the CTG, ask the questions and try and get a vaginal examination done.  Of that order” (MS page 160B to C).  The questioning then focussed on the timing of a low forceps delivery.   

[38]      In relation to anaesthesia he stated that “Actually if I thought it was very urgent to get the baby out, I would have been infiltrating her perineum with a pudendal block.  If it wasn’t quite so urgent I might have asked for an epidural top‑up, which would have been the case if you’re going to go to theatre for a higher forceps.” (MS page 163B to C).   He also stated “We would be trying to do things fairly rapidly, and if Mum had a good block when you do the examination, she’s not really stressed by that, you would perhaps be…you might well be able to proceed without having to do anything initially with anaesthesia.  That would be part of the assessment.”(MS page 163D to E).  At page 164D‑165B there was discussion of various forms of anaesthesia and times.  There was discussion of the method of delivery by forceps which he described as waiting for a contraction and pulling with the contraction to assist (MS page 166C to E).  There was also reference to the involvement of the midwives who would be helping (MS page 167D). 

[39]      The questioning then returned to the timing of delivery which is the critical issue in the reclaiming motion. 

[40]      In the context of delivery in an urgent situation, such as the present case, Dr Anderson was asked “…how many minutes from arrival until delivery?” (MS page 168A to B).  He answered “You’re probably looking anywhere from about 15 to sort of 20‑ish minutes.  It sort of depends on the timing of her contractions, but, yeah, that sort of order.  If everything’s really ready to go in terms of her block, a few…(one word indistinct)” (MS page 168B to C).  Senior counsel for the respondent then put forward his hypothesis that the circumstances of this case involved an “uncomplicated assisted delivery”, followed by discussion of anaesthesia, if necessary in such a case.  Dr Anderson stated anaesthesia would be part of the process (MS page 172E).  That is what he would anticipate (MS page 170A).  Dr Anderson is then asked to consider again the timing.  The question put is “And I’m going to suggest to you that that entire procedure would take somewhere perhaps no longer than ten minutes from 11, is that fair?” In answer Dr Anderson said, “Once you’ve, yeah, you’ve made the decision and you put the block in and make the delivery in the region of ten minutes is fair, yes.”  (MS page 178A to C).  In a passage shortly thereafter, Dr Anderson accepted that if he had been called earlier than 2300 “22.50, yes, it would be very close to 11 o’clock, yeah.  I think that would be the quickest, yes” (MS page 178D). 

[41]      In cross‑examination Dr Anderson was asked about the trace at the end of the labour at 2335 and agreed that showed an emergency for obstetric purposes.  (MS page 247D to 248B).  For the first time in evidence, the expression “crash delivery” was introduced and that is by way of a question (MS page 249E‑F).  Dr Anderson was asked “…does ‘crash’ mean anything more than just an emergency situation?”  His answer was “Well it’s usually urgent action to revive the individual or immediate care, be ready to resuscitate, you know, so it would be after delivery but also in this instance making as fast a delivery as you can manage” (MS page 250 B to C).  Dr Anderson accepted that the CTG trace at 2335 was not the same picture as earlier at 2250 and 2300.  It was not a crash situation at 2250.  At 2250 “you would be perhaps asking for is it the beginnings of a change that would warrant review and close observation and perhaps, if that were to deteriorate, then intervention” (MS page 251B to 252B).  Dr Anderson was asked to explain what he meant by expediting delivery as a general question in contradistinction to crash delivery and delivery within an hour or somewhere between that.  He stated:

“Somewhere between.  You’re not necessarily….  You were seeing the beginnings of signs of concern.  Mum’s not imminently delivering.  You’re wanting to shorten the time to delivery and, you know, it may not just be an immediate crash and you have to just dive in.  You’re going to have a little bit more…slightly more time, maybe not as much as the hour, maybe sort of between perhaps 10 and 20, 30 minute ballpark, depending how long it took to establish and depending what you found on examination, what you thought you’d need to do to bring the delivery forward, whether it was going to be a straightforward forceps or a slightly more complicated one that might need a little bit more preparation” (MS page 263C to 264C). 

 

He was then asked on the basis of the CTG trace around 2300 in the present case what sort of timescale would he be aiming to achieve delivery.  Dr Anderson stated “I’d anticipate somewhere between 10 and 20 minutes” (MS pages 264E to F).  He expanded on this and stated “…and then you’d a few minutes where you were doing your assessments…” “Delivery would be probably within the next…between 10 and 20 minutes, depending exactly on what we found, if we were able to do that” (MS page 265A‑D).  He accepted that the time would depend on the results of examination.  “Yes, if it was straightforward, the forceps can be very quick,…” (MS page 265D‑E).  Dr Anderson further agreed that it was not absolutely possible to say what would happen and there was some discussion as to whether the fetus in the present case was suitable for delivery with the occiput anterior presentation or was more complicated (MS page 266A‑C). 

[42]      It was then suggested in cross‑examination to Dr Anderson that there were other options, such as allowing natural delivery or allowing more time to assess (MS page 268D‑270E).  Dr Anderson agreed options existed. 

 

Conclusions about the evidence
[43]      In this case there are unchallenged findings by the Lord Ordinary that “there are indications in the records that this would have been a straightforward delivery.  The baby was occipito‑anterior and the vertex was visible.  There is nothing in the medical notes to suggest that any significant time would have had to be allowed for top up anaesthesia.”  (paragraph 60, page 106). 

[44]      During the course of the evidence, including the evidence of Dr Anderson, it appears that the reclaimers did not accept that the delivery was a straightforward delivery.  For example, it was not until cross‑examination of the reclaimers’ expert, Dr Owen, that there was some acknowledgement by him that Ryan’s delivery was probably straightforward.  The judge is critical of Dr Owen’s “unnecessary reluctance” in his acknowledgment of this (paragraph 41, page 91).  We consider the evidence about the orientation and position of the head of the fetus is significant in relation to the speed and difficulty of forceps delivery.  We note for example, in cross‑examination about timings that Dr Anderson built into his answers concerns about whether rotation was necessary and the need to go to theatre (MS page 265E).

[45]      On our reading of Dr Anderson’s evidence, it is clear that – understandably – he struggled to cope with stating confidently what he would have done in a hypothetical situation which occurred over 20 years earlier in relation to a patient whom he did not examine or attend in the hour previous to delivery and in relation to a baby whom he did not deliver.  It is plain from his answers to the complex questions, that there were a number of factors including the presentation of the fetus and how difficult delivery would be which affected his answers about timing and management.  The transcript of the questions and answers is not always easy to follow.  Some answers, including those upon which counsel for the reclaimers particularly relied, may be open to construction depending on vocal emphasis or demeanour.  We consider that this is a very good example of a case in which the trial court had an enormous advantage both in relation to considering and assessing the evidence of the witness but also assessing that evidence in the context of the whole complicated evidence in the case.

[46]      We accept, as does the Lord Ordinary in paragraph 50 of his opinion, that Dr Anderson gave various estimates for time of delivery.  Senior counsel for the respondent having explored with Dr Anderson his evidence about delivery generally and under reference to various hypotheses, then made a serious attempt to focus the witness to consider the delivery time in this case from arrival to delivery based on the hypothesis that it was a straightforward uncomplicated delivery.  When we consider that evidence which we have summarised, we cannot accept the submission for the respondents that the Lord Ordinary did not properly summarise Dr Anderson’s evidence in paragraph 59 of his opinion when he stated:

“…that his evidence may fairly be summarised as being that in a case suitable for low forceps delivery, the interval from arrival at the labour room to delivery would probably be between 10 and 20 minutes depending on a number of variables including the state of the mother’s anaesthesia, the orientation of the baby’s head, and the timing of contractions.  That interval includes time taken for examination and assessment. “ 

 

While we accept that at other parts of his evidence, Dr Anderson estimated different timings we consider that the evidence, in the passages which we have summarised in paragraph [40], is his final word based on the hypothesis of an “uncomplicated assisted delivery”.  There was no specific challenge to that in cross‑examination, albeit there was some questioning about crash delivery.  Dr Anderson, for example, gave evidence of delivery times of about 10 to 20 minutes at MS pages 256A‑266D but he was plainly not directing his mind only to an uncomplicated assisted delivery as he considered rotation and the possibility of complications and going to theatre. 

[47]      We are unable to read Dr Anderson’s evidence in the way put forward by the reclaimers to the effect that the estimate of time from arrival to delivery of 10 minutes had a qualification which referred back to Dr Anderson’s evidence about a five minute period for assessment.  Even if one read the evidence as ambiguous, we consider that the later passage of evidence at MS page 178C to E points to a conclusion that there is no such reservation in his answer. 

[48]      We are also not persuaded that the Lord Ordinary misunderstood the evidence.  There is some potential confusion in the evidence as some of the estimates are based on timings of arrival to delivery and some estimates are based on timings of decision to delivery.  We consider that the Lord Ordinary was entitled to analyse the evidence on the basis of timings from arrival in labour room to delivery taking the matter broadly.  He was not obliged to analyse each individual step including the decision‑making, assessment, examination, anaesthesia, forceps preparation etcetera and then add up all the timings to come to a conclusion.  There was evidence that this was a process involving decision‑making and other actions with some interconnection and overlap.  There was also assistance available from the midwives.  Although Dr Anderson spoke in a number of passages of evidence about his assessment and examination and the time taken to reach a decision, in our opinion the Lord Ordinary was well entitled to consider the matter taking into account an overall time frame and reach a broad conclusion.

[49]      We are thus unpersuaded that the Lord Ordinary misunderstood the evidence or had no evidential basis in Dr Anderson’s evidence for his conclusion that, on a balance of probabilities the baby would have been delivered before 2315 had the midwives sought the attendance of Dr Anderson at 2255. 

 

The further criticisms of the reasoning of the Lord Ordinary
[50]      The two main criticisms made by the reclaimers were that the Lord Ordinary was in error in his reasoning in paragraphs 59 and 60 of his opinion in taking into account firstly, the expert evidence of Dr Smith about the timing for forceps delivery and secondly, the Murphy study which dealt with statistics about delivery times.  

 

The expert evidence of Dr Smith,
[51]      We consider it unnecessary to analysis this evidence in detail.  The main challenge made to the Lord Ordinary’s assessment of the evidence was to the effect that he was in error in relying on the evidence of Dr Smith to support his conclusion that Ryan, on the balance of probability, would have been delivered by 2315.  The submission of the reclaimers was that the expert evidence did not really assist the Lord Ordinary.  The evidence which was important was Dr Anderson’s evidence about what he would have done, not the assessment of Dr Smith or Dr Owen about what a competent doctor exercising reasonable care would or could have done.

[52]      We consider that for the purposes of considering the issues in the reclaiming motion, it is important to note that there were conflicting views expressed by Dr Smith and Dr Owen as to whether or not in all the circumstances, including the significance of the CTG trace from 2255, delivery should have been urgently expedited.  Dr Smith considered urgent delivery was essential.  Dr Owen gave evidence to the effect that a doctor might have been justified, not in expediting delivery, but in waiting to see how matters developed having regard to the CTG trace.  In Dr Owen’s opinion that would have resulted in delivery after 2315.

[53]      The Lord Ordinary concluded that Dr Anderson would have expedited delivery.  There was no challenge by the reclaimers to that finding.  Although Dr Anderson accepted that there were other options, he did not give evidence to the effect that he would have chosen any option other than to expedite delivery.  In particular he did not give evidence to the effect that he would have chosen the option put forward by Dr Owen to wait and see and watch the trace.  On our reading of Dr Anderson’s evidence, the only option he would have been likely to choose in this case is to expedite delivery.  In our opinion it follows that the Lord Ordinary was entitled to accept that there would be no delay or lack of urgency by Dr Anderson merely because an option of delay might have existed. 

[54]      Dr Smith, unlike Dr Owen, gave evidence to the effect that the decision to expedite delivery was correct and that delivery as an “emergency” should have been taken ensuring delivery within 10 minutes (MS page 378, 395;  in cross‑examination MS 421 to 422). 

[55]      We consider that in the evidence there is a lack of clarity about the terms “urgent”, “emergency” and “crash” (see for example Dr Anderson MS 250B to E).  The terms are not clearly explored and defined in the evidence but more importantly there are no time periods explored to demonstrate differences of significance.  It is plain from the evidence that both Dr Anderson and Dr Smith gave estimated time periods in respect of the delivery of Ryan on the basis of expediting delivery by forceps in an uncomplicated birth.  It was not suggested in cross‑examination to Dr Anderson that he could have achieved a quicker delivery than 10 minutes in a crash situation and if so how that might affect the evidence of specific timings which he had given bearing in mind the similarity in the technique applying forceps during contraction.  As we have explained in paragraph [40], at one part of his evidence Dr Anderson accepted that the quickest time delivery could have been achieved from his arrival at the ward to delivery is 10 minutes.  We consider that standing the state of the evidence, the Lord Ordinary was entitled to take into consideration the opinion about timing expressed by Dr Smith.  Even if Dr Anderson and Dr Smith had differences of opinion as to how long the initial decision‑making stage prior to a decision to expedite delivery would take, their evidence about the delivery process and the timing thereof in an uncomplicated delivery is properly available to inform the final decision of the Lord Ordinary.

[56]      We also consider that the Lord Ordinary was correct to have regard to what was possible in this case in coming to a view about the balance of probabilities.  Delivery within 10 minutes from arrival to delivery was clearly a possible timeframe on the basis of the evidence.  This was not disputed by counsel for the reclaimers.  In an urgent situation to know the timeframe of what is possible may be of some assistance in reaching a view about what is probable.  To look at this another way, if there was evidence that delivery in a case such as this was not possible within 10 minutes, the Lord Ordinary would be unlikely to have found that delivery in this case was probable before 2315.  We accept that it does not follow that because delivery was possible, that delivery was probable.  But the Lord Ordinary did not approach the matter in that way.  The Lord Ordinary considered, as he was entitled, whether there was any factor in the present case which might complicate and delay delivery.  None was identified.  The period of 10 minutes is described by Dr Anderson as “the quickest” from arrival to delivery for an uncomplicated delivery in the present case.  Dr Smith considered a framework of 10 minutes both possible and achievable.  On the unchallenged time frame from 2300, there was 15 minutes available for delivery of Ryan.  We have no difficulty therefore in understanding the conclusion of the Lord Ordinary which appears to be consistent with the evidence which the Lord Ordinary was entitled to accept.

 

The Murphy study
[57]      We were not referred in detail to evidence about delivery times in articles lodged as productions.  We consider that there is no merit in the criticisms made on behalf of the reclaimers about the Lord Ordinary’s reference to the Murphy study.  This was part of the evidence with which the Lord Ordinary required to deal.  It was relevant in that it gave some statistical information about the timings of delivery in the real world, as distinct from a hypothetical situation.  There is careful consideration of the evidence about the literature in paragraph 52 of the opinion of the Lord Ordinary.  He noted in his findings about the likely delivery time of Ryan that:

“It is broadly consistent with the Murphy study finding that around two-thirds of forceps deliveries in cases of fetal distress were completed within 15 minutes with a mean of 14.5 minutes“(paragraph 59). 

 

By definition the average obviously encompasses a range of figure below and above that average.  It may not be of great assistance but it does indicate that the delivery time, which the Lord Ordinary accepted as probable in this case, would not be regarded as surprising or unusual in the real world where babies are delivered in problem circumstances.

 

Conclusion
[58]      For the reasons given above we refuse the reclaiming motion.