Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 18

A196/13

OPINION OF LORD BRAILSFORD

In the cause

LEIGH-ANN TAIT or GLEN

Pursuer

against

TAYSIDE HEALTH BOARD

Defenders

Pursuer:  Heaney;  Drummond Miller LLP

Defender:  Doherty;  NHS Scotland Central Legal Office

7 February 2017

• [1]In this action the pursuer sues for damages in respect of loss sustained as a result of alleged clinical negligence on the part of midwives, at and in the period following, the birth of her child LG on 29 July 2010.The case called for proof on the issue of liability only, damages having been agreed between the parties[1] on 23 February 2016, and was heard over nine days concluding on 11 March 2016.
• [2]In submission after the completion of evidence three grounds of negligence on the part of the midwifery staff involved in the care of the pursuer were advanced.These were:(i) alleged negligent examination of the placenta;(ii) alleged negligent failure to take the pursuer’s vital signs, pulse, respiratory rate and blood pressure, after she passed a blood clot at 1045 hours on the morning of 30 July 2010 and prior to her discharge from hospital at 1200 hours on the same date;and (iii) alleged negligence in the pursuer’s postnatal care.
• [3]The pursuer adduced the evidence of 12 witnesses.The pursuer gave evidence, as did her mother Kat Tait and her husband Wayne Glen.Evidence was also led from six midwives involved in the care of the pursuer on 30 July 2010 and the following days, these being Tracey Girling, Dawn Fenwick, Lynn Fotheringham, Susan Coutts, Katherine Rennie and Gwen Harper.Jean McConville was called as an expert witness on midwifery.Mr Anthony Marden gave expert evidence in respect of obstetric and gynaecological issues and Professor Christopher Freeman gave expert evidence in respect of the pathology of the placenta.The defenders adduced the evidence of two experts, Dr Norman Smith, a consultant obstetrician, and Annette Lobo, a consultant midwife.

   

  Overview

• [4]The pursuer became pregnant in 2009, with an expected date of delivery on 27 July 2010.This was the pursuer’s fourth pregnancy.She had a miscarriage in 2003 followed by two normal spontaneous deliveries, the first in 2005, the second in 2007.The delivery in 2005 involved an estimated blood loss of 400ml[2].The pursuer had a “booking visit” with her GP on 24 November 2009[3] at which time scan dates were arranged.On 11 January 2010 she was seen by a community midwife, Susan Coutts, a witness at proof and issued with a “Pregnancy Record”[4].At this meeting she was asked a number of questions about her medical history.The midwife noted in the “Pregnancy Record” that the pursuer had suffered a blood loss of 400ml at the delivery of her first child in 2005[5] and classed this as a postpartum haemorrhage.At some stage during the pregnancy, on the evidence of Midwife Coutts probably at about 34-36 weeks gestation, the pursuer elected to use a birthing pool for her labour[6].She was admitted to Ninewells Hospital in Dundee, in labour, on 29 July 2010 at 1830 hours, into a midwifery led unit.After initial assessment she was transferred to Pool Room 2 in the unit for delivery.Tracey Girling was noted in the medical records to be the midwife attending and Dawn Fenwick noted as assisting.At 2111 hours the pursuer gave birth to a healthy male infant.She remained in hospital throughout the night of 29-30 July 2010.At around 1045 hours on the morning of 30 July the pursuer passed per vaginam a blood clot recorded and measured at about 180ml.The pursuer was discharged home with her baby at 1200 hours on 30 July.Thereafter, in accordance with appropriate practice the pursuer was visited at home by midwives on 31 July, 1, 3 and 8 August.On 19 August 2010 at about 2151 hours the pursuer attended at Accident and Emergency at Ninewells Hospital.She was admitted by medical staff.She was found to be haemorrhaging per vaginam.Fluids were administered.An ultrasound scan was performed and showed blood and blood clots in her uterus.She was taken to theatre in the early hours of 20 August 2010 where fragments of retained placental material were removed from her uterus.

   

  The Evidence

  (i) The Birth

  (ii) Postnatal Hospital Stay 29 – 30 July

  (iii) Postnatal Homecare by Midwives 31 July – 8 August

  (iv) Postpartum Haemorrhage

  (v) Pathology

  (vi) Expert Evidence

              (a) Obstetrics

              (b) Midwifery

   

  (i) The Birth

• [5]The pursuer gave evidence on her own behalf.She stated that the child LG was her third child.Her previous two pregnancies had been uneventful.She had attended all antenatal appointments with midwives.She went into labour at 41 weeks gestation, at about 13.00 hours on 29 July 2010.Her memory was that she was admitted to Ninewells Hospital maternity unit at about 18.30 – 18.45 hours in the evening, which is in accordance with the admittance record for the hospital.The pursuer had completed a “Birth Plan” which indicated her wishes as to the management of her delivery.In that document she indicated that her preferred place of delivery was in the water pool room in the hospital.She had also answered the question “Would I like my placenta to be delivered with or without an injection?” in the following way, “If I need the injection to deliver the placenta it is fine”.
• [6]Evidence of the birth came from the pursuer, her husband Wayne Glen and the two attending midwives Tracey Girling and Dawn Fenwick. The pursuer remembered that between her admission to the hospital and the birth there were two midwives involved in her care.She could only remember that one of the midwives first name was “Tracey”.As between the parties there was no dispute that the two midwives recorded in the hospital notes as providing care to the pursuer, in the period leading up to and including the birth, were Tracey Girling and Dawn Fenwick.Notwithstanding the pursuer’s position that two midwives were involved in her care in the course of her giving birth it was her position, reiterated on a number of occasions, that there was only one midwife present with her in the pool room at any time.
• [7]So far as the birth itself was concerned the pursuer remembered that she went into the pool and that the birth was uneventful.She did not dispute that the birth took place at 21.11 hours, the time recorded in her hospital records[7].She said that the “placenta didn’t come straight out after birth”.She was asked about the delivery of the placenta.Her initial answer was “I was out the pool when the placenta was delivered.I don’t remember which midwife delivered the placenta”.She stated that she was asked to come out of the pool by the midwife involved.Because she was bleeding a towel was placed between her legs.She lay down on a bed and the midwife attempted to deliver the placenta.This was done by the midwife placing one hand on the pursuer’s stomach and pushing downwards whilst simultaneously pulling the umbilical cord with her other hand.That was unsuccessful.The midwife then asked her to attempt to urinate.She went to a lavatory in the pool room and attempted to urinate without success.She then returned to the bed.She said that the midwife gave her an injection.The midwife then repeated the exercise of pushing on the pursuer’s stomach and pulling the umbilical cord.On this second occasion the pursuer considered that the midwife had used “some force” when pulling the cord.She said that it “felt more painful” than when she experienced a similar operation in an earlier pregnancy.On this second occasion the placenta was delivered.The pursuer did not see the placenta after delivery.
• [8]The pursuer subsequently, while still giving evidence‑in‑chief, gave a different account of the delivery of the placenta.In her second version she said she had received two injections from the midwife, the first when she was still in the birthing pool.This was given, using the pursuer’s words, “to help deliver the placenta”.She did not know what the second injection was for.The pursuer was cross-examined on this and part of the midwives records were put to her[8].It was put to the pursuer that the records show only one administration of painkiller: “21.15 syntocinon 10ml given IM”[9], and that there is no record of leaving the pool to attempt to pass urine in a lavatory.The pursuer accepted that the record showed only one injection and did not record an attendance at a lavatory.She offered no explanation for this.The pursuer then said that she stayed in the pool room for a period after the placenta had been removed and that the midwife could not get the bleeding under control.She said that she was eventually taken through to a ward for the remainder of the night.
• [9]The pursuer’s husband was present in the pool room throughout the birth.He remembered two midwives being present at the birth.He remembered that the baby was delivered in the pool.He said that he was “paying attention” to the events after the birth.His evidence was that his wife was given an injection in the pool, his understanding was that this was to “help deliver the placenta”.He said that his wife was then “advised to go to the toilet”, which she did, accompanied by a midwife.There was a lavatory in the pool room and he estimated it as being about 8 feet away from the pool.He then said that on leaving the lavatory his wife did not go back in to the pool but sat on what he described as “a couple of pouffes with a sheet on it”.He said that the pursuer was then given a second injection and a midwife delivered the placenta.He was asked how this was done and he stated that “excessive force” was needed to deliver the placenta.When pressed on this description he said:

  “To myself it looked excessive.  It looked like great force.  It was a pull.  This is my impression.”

   

  He did not see the placenta after delivery.  He said that he stayed “a bit longer” after the delivery of the placenta and then went home at, by his estimate, about 10:30pm. 

• [10]Midwife Tracey Girling, who was a community midwife in 2010, was on duty in the delivery suite at Ninewells Hospital on the evening of 29 July 2010.She accepted she was on duty when the pursuer came to the birthing pool room.She was asked about her memory of events and stated that she had no specific memory but had since the events gone over the pursuer’s clinical case notes relative to the birth and her professional involvement with it.Her position was that she took over care of the pursuer at 1945 hours on the evening of 29 July.At that time there were two patients in the labour suite in the hospital and two midwives on duty, herself and Midwife Dawn Fenwick.Her evidence was supported by an entry in the pursuer’s clinical notes[10].Midwife Girling’s position was that she remained with the pursuer throughout her subsequent labour and the period she spent after birth in the labour room.She said that Midwife Fenwick was present from time to time.In particular Midwife Fenwick was present at the birth having been buzzed by Midwife Girling to attend and assist her.Midwife Girling spoke to the clinical case notes relative to the period from 1945 hours until 2150 hours when the pursuer was in the pool room.These records were contained on two pages of the clinical notes[11], all entries on the first page were in her handwriting, as were the first two entries on the second page.The remainder of the entries on the second page were by Midwife Fenwick, save for the last entry, time 2150 hours, which was again in her handwriting.
• [11]Midwife Girling further explained that before taking over responsibility for care of the pursuer she would have had access to the pursuer’s case notes and would have looked at them.Consideration of these notes she said would have included looking at the notes relative to the pursuer’s previous pregnancies and would have included having regard to the blood loss sustained by the pursuer in an earlier pregnancy.In relation to blood loss in an earlier pregnancy the page entitled “Your Previous Pregnancies” in the pursuer’s “Pregnancy Record”[12] was put to the witness.She confirmed that she “would have seen that on the evening”, and would have considered that, at that time in 2010, a blood loss of 400ml would not have been regarded as a postpartum haemorrhage.
• [12]In relation to the pursuer’s clinical case notes she was also shown a partogram, a composite graphical record of maternal and foetal data during labour, which had not been completed[13].When asked if it should have completed she answered in the affirmative and, further, accepted that failure to do so was a “reasonable criticism”.By way of explanation she stated that partograms were relatively new in 2010, that a lot more is now appreciated about their utility and that there is more general use made of them at the present time than was the case in 2010.
• [13]Midwife Girling explained the case notes relative to the labour up until the time of birth at 2111 hours.The description was, essentially, that the labour was uneventful and the delivery without complication.
• [14]In relation to the delivery of the placenta Midwife Girling confirmed, by reference to the clinical notes, that this was achieved by controlled cord traction (CCT), her description of that procedure being broadly in accordance with that described by the pursuer.When asked about the degree of force she would have used she said that there was nothing in the medical records which suggested there was any difficulty in the operation.It would not have been her normal practice to have used excessive force.When questioned about her possible use of excessive force she offered by way of explanation that the procedure might well look more alarming to patients and non‑medical observers such as the pursuer’s husband than it was in reality.
• [15]She also gave evidence on the number of injections the pursuer received.Her position was that there was only one injection of syntocinon administered, at 2115 hours to assist the pursuer in delivery of the placenta, and in this regard was confident that the medical record was accurate.She was asked about the possibility that the pursuer was sent by her to the lavatory and said that she thought that was unlikely, if it had happened it would have been recorded in the medical record, albeit accepting it as a possibility.In relation to the placenta itself Midwife Girling’s response was that the relevant medical record was “Placenta complete”[14].She was confident that this was an accurate record.Whilst she again had no specific recollection of examining this placenta she described her normal practice. She said that in 2010 placenta were normally examined by one midwife, albeit if that midwife was in any doubt about the condition of the placenta it would be normal practice to obtain the advice, or a second opinion, from another midwife present.She had experience at that time of examining many placenta.She had herself at that time identified other placenta which she considered after examination to be incomplete.She thought this usually occurred following deliveries assisted by instrument.She was confident that she followed her usual procedure in examining this placenta and that the medical record was an accurate reflection of her finding.
• [16]Midwife Fenwick confirmed that she was on duty with Midwife Girling on the evening of 29 July.As with her midwifery colleague she had no precise recollection of the events of labour or birth but had had the opportunity to consider the medical records since those events.She confirmed that part of the relevant medical records were in her hand, these being the five entries between 2107 hours and 2123 hours[15].The records confirmed her general recollection that she was present for part of the time the pursuer was in labour and during the birth itself.
• [17]In relation to the delivery of the placenta the relevant records were in her handwriting, which would confirm her presence at that time.She had recorded the administration of one injection of syntocinon which would be in accordance with practice and was, in her view, accurate.She was asked about the possibility that the pursuer was sent to the lavatory during the course of attempts to deliver the placenta.She conceded this was possible but neither normal, nor in her view likely.This view was expressed because firstly, in what she described as “good established labour”, the situation that appeared to be the case here, the patient’s bladder was unlikely to be full.Secondly, and more importantly, she considered that if the patient had gone to the toilet during the course of attempts to deliver the placenta that event would have been recorded in the clinical case notes.So far as the placenta itself was concerned the fact that the relevant case note was in the handwriting of Midwife Girling indicated that she was the person who had examined the placenta.She considered that “if it were an odd looking placenta we would have noted it”.

   

  (ii)  Postnatal Hospital Stay 29 – 30 July

• [18]The pursuer stated that she was still bleeding when she was taken to the ward.She said there was one nurse on duty in the ward.She was put to bed.There were pads on the bed and in addition she wore sanitary pads in her underwear.She said that throughout the night she continued to bleed.As a result of this she said that the bed clothes and pads on her bed were soiled, as were a number of pairs of her own pyjamas and sanitary pads.She had brought two pairs of pyjamas with her and when these both became soiled she used hospital gowns.She said that she changed her nightclothes four to six times.She required to go to the toilet, which was situated just outside the ward in which she was accommodated, on a number of occasions throughout the night.The nursing station for the ward, from where the midwives worked, was just outside the door of the ward and beside, and in plain view, of the two lavatories which were available, one of which was used by the pursuer.The pursuer’s position in examination-in-chief was that on one occasion she reported bleeding to the midwife on duty.This changed in cross-examination when she said that on numerous occasions she reported to the midwives at the nursing station that she was bleeding heavily and had soiled sanitary pads and pyjamas.She gave evidence that she asked a midwife to change her bed clothes which were also soiled or to move her to another bed but was told that it was “too late” and that she should wait until the morning.She said that she was not examined by a midwife during the course of the night.The pursuer further stated that she passed a significant blood clot, which she estimated as being the size of a golf ball, at or about 0900 hours on 30 July.
• [19]In relation to the postnatal period the evidence from clinical staff again came from Midwives Girling and Fenwick.Bleeding was reported to Midwife Girling by the pursuer at 2210 hours on 29 July and the clinical note by her at that time records her findings and the clinical steps she took[16].The midwife then spoke to her last entry in the clinical notes, timed at 2300 hours on 29 July, which made no mention of any complaint of bleeding by the patient, recording: “happy, but tired and a bit sore with after pains”[17].The record at that time also noted that the pursuer was “now mobile”.Both midwives Girling and Fenwick gave evidence that had they been told by the pursuer that she was bleeding heavily they would have acted.Midwife Girling said that the pursuer would have been examined, her sanitary pads would have been checked for blood loss and observations of vital signs would have been taken.She said that the nursing station was situated so that the beds in the ward could be observed.Equally any patient going to one of the lavatories outside the ward would have been seen by her or her colleague on duty.She considered it highly likely that if a patient such as the pursuer had changed her nightwear on four to six occasions it would have been noticed.She said that it was “very unlikely” that she would ever tell a patient that it was “too late” to change nightclothes or to wait until the morning for a change of bed.Midwife Fenwick said that if a patient had repeatedly gone to the toilet she would have engaged her in conversation and asked if any help was required.She said that if any patient complained about bleeding she would check her fundus and look at her sanitary pads.She further said that if any of the complaints made in evidence by the pursuer had been made on the night these would have been documented in the medical records.In relation to the pursuer’s complaint that a change of bed was requested because of soiled bed linen and met with the response from midwives to wait until the morning she stated, quite forcefully, that that is a response she would not have made.She said that she had been a midwife for 30 years and that is not something which she would ever have done.
• [20]Midwife Katherine Rennie came on duty in the ward where the pursuer was located at 0745 hours on 30 July.She said that she did have a recollection of the pursuer.In addition, she had also considered the clinical case records relative to the pursuer.She said that as part of the handover from the night nurses she would have discussed the pursuer’s case.She was told at this time that the pursuer had sustained a 600ml blood loss during and immediately after birth.Her evidence was that at that time in 2010 the applicable guideline was that blood loss during birth over 1000ml was a matter of concern and indicated a requirement to call for clinical assistance.If a blood loss of less than 1000ml was reported then it might require a call for clinical assistance if it were associated with other clinical features.
• [21]So far as the pursuer was concerned the entry in the Postnatal Maternal Record at 0900 hours on 30 July was in her handwriting[18].Under the heading “General Wellbeing and Pain Assessment” Midwife Rennie recorded “well no problems/concerns”.She thereafter recorded blood pressure and heart rate, both of which were within normal limits.She observed under the heading “Fundus”, “Firm and central”.Under the heading “Blood loss” she recorded “normal red no clots”.On the basis of these findings she did not consider there were any clinical features which required calling for medical assistance.
• [22]Midwife Rennie was responsible for another entry in the clinical records, timed at 1045 hours on 30 July[19].This note was in the following terms: “Leigh-Ann up for shower – passed large clot.Weighed 180ml.No membrane/tissue noted.Lochia rubra, normal.Fundus firm and central.To observe.Knows if any other clots to keep to be examined and to observe lochia.Feels well, no concerns.”On the basis of the observations and findings recorded by Midwife Rennie she considered that the pursuer was in a fit condition to be discharged.Her position was that she would have discussed the possibility of discharge with the pursuer and on the basis of this a decision would have been made whether or not to discharge.Midwife Rennie completed the discharge summary in the clinical records[20].

   

  (iii)  Postnatal Homecare by Midwife 31 July – 8 August

• [23]The pursuer was provided with a “Postnatal Maternal Record” book on leaving hospital.This document contains records of four midwife visits to her following her return home, those visits being on 31 July, 1, 3 and 8 August 2010.The pursuer agreed that she had been provided with this book, that the entries relative to the midwives visits were recorded at the time of their visits and that the document had remained in her possession throughout.This document records details of observations made and the answers to questions put by the community midwife on these visits to the pursuer.Each of these visits was conducted by a single midwife.On each occasion the record is signed by the midwife concerned.
• [24]The pursuer’s position, stated vigorously and repeatedly, was that she had reported on every occasion she was visited by a midwife that she was experiencing heavy loss of fresh blood, and that she reported this to the attending midwife.When put to her, in fairness during examination‑in‑chief by her own counsel, that no record of such reports appeared in any of the midwife’s notes she was not prepared to accept that it was improbable that there would be no recording of this in the records made by the midwives.Her position, stated in my opinion somewhat truculently, was that if the midwives failed to record that then it was their problem and not hers.She further maintained that during these four visits none of the midwives conducted a vaginal examination nor did they examine the sanitary pads she was wearing for signs of blood loss.It was put to the pursuer that in all other respects, apart from general wellbeing and blood loss, she had no complaints in relation to the entries, a fact which she did not dispute.It was also put to the pursuer that she had retained possession of the Postnatal Maternal Record throughout the period she was receiving her visits from the midwives and could have at any time checked it and, had she thought the entries made by midwives to be incomplete or incorrect, could have taken that matter up with either the midwives themselves, the hospital or for that matter her general practitioner.Her position in relation to that was that she did not give the matter any thought and in any event she trusted the midwives.
• [25]Three community midwives were involved in the postnatal domiciliary visits.Midwife Gwen Harper visited on 31 July and 1 August being days two and three postnatally.Midwife Susan Coutts visited on 3 August being day five postnatally and Midwife Lynn Fortheringham visited on 8 August being day ten postnatally.The entries of each of these midwives’ observations and findings at these visits are recorded in the clinical records[21].
• [26]Midwife Harper, a very experienced midwife having been in practice since 1984, stated that the purpose of records was to provide an accurate account of a midwife’s observations and clinical findings.She stressed that it was important to be accurate in note keeping.She was, in her own words, “very certain my records are accurate”.She stated that she had asked the pursuer about her bleeding, what colour it was, how heavy it was and whether the blood that was passed contained any clots.She accurately recorded the answers she received to these questions in her records.As a result of the answers to the questions she received and her own examination she had no concerns.
• [27]Susan Coutts conducted the visit on 3 August.She was also an experienced midwife having been in practice since 1994.She had no recollection of the pursuer but had considered the case notes prior to giving evidence.She said that on arrival she would have asked the pursuer for her pregnancy book and she would have read it.She would have asked the pursuer about her general wellbeing and if she had experienced anything of significance.She asked about the blood she was passing.She stated that if the patient had reported blood clots anything above the size of a 50 pence piece she would have documented that in the records.If the pursuer had reported heavy bleeding to her not only would that have been recorded in the case notes but she would have checked her blood pressure, pulse and temperature and phoned the triage number with a view to having her taken into Ninewells Hospital.
• [28]Lynn Fortheringham was the last midwife to a conduct a domiciliary visit, that being on 8 August.She was also an experienced midwife having practiced since 1985.She asked questions of the same nature as those asked by the other two midwives and again received no report of any adverse finding.
• [29]Two other witnesses gave evidence relating to the period after discharge from hospital.The pursuer’s husband said that he had been present during each of the domiciliary visits by midwives.He said that the pursuer was “in a lot of pain” in this period and that she experienced heavy bleeding.He said he had seen blood “on her clothes, her pants and on the settee…”He maintained this was all reported to the midwives, but could not explain why no record of such complaints appeared in the medical notes.He said he never looked at the notes.
• [30]The pursuer’s mother, Kate Tait, visited every day between discharge and 20 August. She helped the pursuer with housekeeping and laundry.She said the pursuer told her she was bleeding and she did see blood on her underwear and on the bedsheets.In cross‑examination she accepted both that her memory of the extent of blood staining did not extend to the exact amount, and that blood spread on contact with bedding and clothing, would make estimate of the extent of loss problematic.She also accepted that “at the end it was just a spot on the sheets”.

   

  (iv) Postpartum Haemorrhage

• [31]This aspect of matters may be dealt with relatively briefly, it being largely the matter of admission.It is admitted that at or around 2151 hours on the evening of 19 August 2010 the pursuer arrived at Accident and Emergency at Ninewells Hospital.The pursuer’s mother, Kate Tait, gave unchallenged evidence that she had been telephoned by her daughter during that evening.Her daughter had told her that she was experiencing heavy bleeding per vaginam.Mrs Tait and her husband immediately went to her daughter’s home, drove her to Ninewells Hospital and went straight to Accident and Emergency.She said that she went into the hospital, told reception staff what the situation was and returned to her car with hospital staff to assist in taking the pursuer into the hospital.The pursuer was taken into hospital by wheelchair.The relevant entry in the pursuer’s clinical case notes was put to Mrs Tait[22].This record confirmed that the pursuer was first seen in Accident and Emergency at 2151 hours on the said evening. After examination she was transferred at 1105 hours to the labour suite.An entry timed 0020 hours on 20 August 2010 confirmed a postpartum haemorrhage with the relevant clinician noting his impression as “retained POC’s” which I was informed meant “retained products of conception”.This impression is the subject of admission in a Joint Minute.There was no dispute that the pursuer underwent a surgical procedure to remove these retained products.
• [32]A further matter was raised in the examination of Mrs Tait about the clinical notes relative to the pursuer’s attendance at Accident and Emergency.The clinician who first saw the pursuer that evening in recording her relevant medical history noted:“Has been bleeding intermittently since delivery.”Mrs Tait was asked if she was the source of that information and stated that she was not.

   

  (v) Pathology

• [33]The retained products of conception evacuated in the operation the pursuer underwent on 20 August were, as a matter of routine procedure, sent to the pathology laboratory at Ninewells for examination.A report was subsequently issued dated 26 August 2010 signed by Dr G Reid and Professor Simon Herrington[23].Professor Herrington spoke to the report at Proof.He explained that in 2010 he was a Consultant Pathologist at Ninewells and Professor of Pathology at Dundee University.In relation to this report he was the supervising consultant, microscopic examination of the sample material being undertaken by Dr Reid.A report of the visual examination of the material is in the following terms:

  “Specimen comprises multiple fragments of white brown necrotic looking tissue.

  The largest measures 85 x 45 x 15mm.  Representative sections taken in two cassettes.

  Tissue remains.  ”

   

  Professor Herrington explained that “multiple” meant more than two he thought there were probably three of four fragments of material but could not be definite.  He further explained that use of the word “looking” after the word “necrotic” is indicative of the consideration that the judgement was based on appearance rather than definitive proof.  The information in relation to the measurements of the largest fragment were in three dimensions and it would therefore be impossible to determine what shape that fragment was. 

• [34]The report of the microscopic examination of the fragments is in the following terms:

  “Sections show placental disc much of which remains viable.  There are several foci of infarction.”

   

  The professor explained that the report indicates that examination revealed the structure of placental tissue enabling identification of the fragment as coming from the placental disc.  Beyond that Professor Herrington indicated that it was impossible to say which part of the placental disc the fragment had come from.  There was no way of knowing which part of the placenta a detached fragment had originated in.  His view was the most likely explanation for the fragment being retained within the uterus was that as the placenta was delivered it pulled away from the uteral wall leaving fragments behind. 

   

  (vi) Expert Evidence

  (A) OBSTETRICS

• [35]The pursuer adduced opinion evidence on obstetrics from Mr Anthony Mander, Consultant Gynaecologist BMI Highfield Hospital, Rochdale.Mr Mander produced his curriculum vitae[24].In cross-examination he accepted that he practiced as a gynaecologist and that his involvement in obstetrics was now confined to being an examiner of fourth year medical students.In the present case he gave evidence in relation to the examination of a placenta, the appropriateness of the pursuer’s discharge from hospital on 30 July 2002 and the midwives reporting of blood loss in their domiciliary visits between 31 July and 8 August 2002.
• [36]In relation to examination of the placenta Mr Mander’s initial position was that when examining the maternal surface of the placenta a midwife might see something wrong given the maximum size of the piece of placenta which had been reported as having been recovered for pathological examination.He also considered that if part of a cotyledon was missing from a placenta then that would be apparent on examination.The dimensions of the largest fragment examined by the pathologists was put to him with the information that it was accepted by the examining pathologist that the shape of the fragment could not be known.His response was to say that he was “not sure where you are coming from”.His view was that a piece of the size reported by the pathologists could not be missed.
• [37]In relation to the discharge of the pursuer from hospital on 30 July Mr Mander indicated that he calculated the pursuer’s blood loss to have been 780ml.He would have considered that to be a minor postpartum haemorrhage.Having regard to that factor he considered that an obstetrician should have been asked to review the pursuer on the morning of 30 July.He considered that the outcome was that the pursuer would have been kept in hospital and observed for 48 hours.
• [38]In relation to the issue of domiciliary care and reporting of bleeding in the postnatal period Mr Mander did not consider that the entries for 31 July and 1 August, where under the heading “Blood loss” it was recorded “Serosa/Brown”, were accurate[25].He was asked in cross‑examination whether his view in this regard was based on practical experience.In response he accepted it was not and said it was based on medical literature.No supporting literature was produced.
• [39]The defenders adduced opinion evidence on obstetrics from Mr Norman Smith.Mr Smith produced his curriculum vitae[26].Mr Smith has spent his entire professional career in the practice of obstetrics.Between May 1986 and his retirement in March 2013 he was a consultant in obstetrics in Aberdeen Maternity Hospital and Honorary Clinical Lecturer in the department of Obstetrics and Gynaecology at Aberdeen University.Since retirement he has continued to teach post-graduates for the membership examinations of the Royal College of Obstetricians and Gynaecologists.For the purposes of this case he prepared a report dated 16 June 2015[27].Mr Smith adhered to and spoke to his report in evidence.
• [40]Mr Smith first addressed the issue of the blood loss experienced by the pursuer in her second delivery in 2005.He noted this was reported in the relevant clinical record as an estimated blood loss of 400ml[28] and in the pursuer’s “Pregnancy Record” for the 2010 pregnancy as “400ml blood loss pph”[29].He indicated that a blood loss of 400ml would not be considered a postpartum haemorrhage, the relevant definition for that term being a blood loss of 500ml or more.He said that when a women had a postpartum haemorrhage in one pregnancy there was an increased chance of recurrence.Given that the blood loss in 2005 was less than the threshold level this increased risk did not apply to the pursuer in 2010 and it was appropriate to regard her as a low risk patient and therefore suitable for delivery in a midwifery led unit, as in fact occurred.
• [41]In relation to the issue of placental examination Mr Smith first indicated that this was a process he was familiar with.He said that obstetricians routinely inspect placenta when they have performed the delivery, which occurs in cases of assisted vaginal delivery and in caesarean sections.He was asked how difficult it was to ensure that a placenta being examined was complete and stated that the exercise was based purely on observation.In his view it could be difficult to see if a placenta was complete.He said that it was not uncommon to fail to see missing parts of a placenta on examination.His evidence was that 1% of all births in the UK are followed by a postpartum haemorrhage caused by the retained products of conception.It follows that in 1% of all deliveries placental examination fails to detect an incomplete placenta.His evidence was that these figures were in line with his own experience throughout his years in obstetric practice.In summarising this chapter of his evidence he stated:

  “It’s just regarded as one of those things that happen.  It’s not regarded as a failure by a midwife.  A midwife would not be disciplined or subject to special supervision because of this because it’s recognised as being difficult to look at a placenta and be sure it is complete.”

   

  In relation to the information contained in the pathology report Mr Smith agreed with Professor Herrington that it was impossible to determine the shape of the largest fragment recovered for examination.  He thought it most likely that the largest fragment was part of a cotyledon and that it was possible that this fragment could have sheared off the top layer of a cotyledon.  He did not consider that of materiality. 

• [42]In relation to the issue of the pursuer’s discharge from hospital on 30 July Dr Smith proceeded on the basis that the medical records recorded no problems overnight 29-30 July.He noted that it was only on the morning of 30 July at 1045 hours when the pursuer was taking a shower that she passed a further clot measured at 180ml.He accepted that made total estimated blood loss 780ml, and that that constituted a mild postpartum haemorrhage.His primary opinion was that this degree of blood loss did not warrant medical attention.He did not consider that the midwives responsible for the pursuer’s care departed from normal and usual practice in proceeding to discharge the pursuers without calling for a medical opinion.

   

  (B) MIDWIFERY

• [43]The pursuer adduced opinion evidence from Mrs Jean McConville.Mrs McConville has practiced as a registered midwife since 1984.She produced a curriculum vitae[30].For the purposes of this Proof Mrs McConville produced a report dated December 2015[31].
• [44]Mrs McConville expressed her opinion that placenta, and the cotyledons of which they consist, vary in size and shape.She considered that the maternal side of the placenta was generally quite smooth unless there were areas of infarction.She accepted that whether or not there were areas of infraction was unknown in the present case.She accepted that on occasions careful inspection of a placenta could fail to reveal missing pieces.Her position was that what she described as “small pieces” could be missed without being able to provide dimensions for what she would regard as a “small piece”.Her view was that the missing piece in the present case was, in her words, “significantly sized”.Because of that she did not consider there was an excuse for missing it.She did not however define what she meant by “significantly sized”.In cross-examination she accepted that she had had regard to what she considered the shape of the fragment to be.She was further asked how she was able to determine the shape of the missing fragment or fragments.She was unable to develop this view and ultimately conceded that “it is difficult to envisage the shape to be frank”.
• [45]In relation to postpartum care and the pursuer’s discharge from hospital Mrs McConville referred to the Royal College of Obstetricians and Gynaecologists Guideline 52 entitled “Prevention Management of Postpartum Haemorrhage”.[32]She noted that the definition of postpartum haemorrhage in that document is “… the loss of 500ml or more of blood from the genital tract within 24 hours of the birth of a baby[33].”In terms of that definition the pursuer had suffered a minor postpartum haemorrhage on giving birth on 29 July.The extent of this had been increased by the passing by the 180ml blood clot at 1045 hours on 30 July.In relation to this blood clot Mrs McConville considered that the estimate of blood it contained was underestimated at 180mls.She considered that estimate should be doubled to give a range of blood loss of 180-360mls.The basis for this view was a statement in a midwifery text book “… that measurable solidified clots represent only about half the total fluid loss[34].”.In these circumstances it was Mrs McConville’s opinion that as a matter of good practice it was incumbent upon midwives to be more vigilant and conduct observations.She accepted that the midwife on duty at 0900 hours on 30 July had carried out appropriate observations and recorded the results in the notes.It was however her opinion that further observations should have been made after the passing of the second blood clot at 1045 hours.
• [46]In relation to the issue of domiciliary care between 31 July and 8 August Mrs McConville’s opinion was that if the midwives involved were aware that the pursuer continued to bleed heavily then she should have been referred back to hospital.She accepted that whether or not there was an excessive bleeding in this period depended upon the court’s view of the evidence of the pursuer and the midwives concerned.
• [47]The defenders adduced opinion evidence from Annette Lobo, a consultant midwife and supervisor of midwives at Victoria Hospital, Kirkcaldy.Ms Lobo produced a curriculum vitae[35].For the purposes of proof Miss Lobo produced a report dated 11 June 2015[36].For the purposes of this report Miss Lobo considered the pursuer’s clinical case notes relative both to the pregnancy and birth with which the present case is concerned and also those relating to her earlier pregnancies.She considered there was nothing of note in the earlier pregnancies.She observed that the entry in the pursuer’s “Pregnancy Record” relative to the 2010 pregnancy noting a blood loss of 400mls in the 2005 pregnancy as a postpartum haemorrhage was, in her view, incorrect.In her view the threshold for qualification as postpartum haemorrhage was a blood loss of 500mls in the 24 hours following birth.
• [48]Miss Lobo considered the midwives record keeping relative to the birth on 29 July 2002[37].She noted that a partogram which comprised part of these records had not been completed[38].In her view a partogram was a quicker means of recording and depicting what happens during a labour.In her view it provided no more information that what was contained in the written notes but it could enable midwives to record this information more quickly.The failure by the midwives in this case to complete the partogram had, in her view, no clinical significance.
• [49]Miss Lobo observed that at 2150 hours the midwife had recorded a blood loss during birth of 300mls.She further noted that at 2210 hours the midwife had been asked by the pursuer’s partner to review her in view of heavy bleeding per vaginum.This was carried out and the record noted that sanitary pads worn by the pursuer were soaked through[39].She also noted that following this examination the midwives weighed the sanitary pads and on that basis estimated a further blood loss of 300mls.Miss Lobo considered that the resulting estimated total blood loss at birth of 600mls was accurate.In her view having regard to that level of blood loss best practice would have indicated that medical staff should have been asked to review the patient at this stage.This was not done.She did not however consider that this failure amounted to a departure from ordinarily competent practice by the midwives first because there was no guideline in process which obligated recourse to medical staff for a blood loss of 600mls and second because subsequent records indicated that there were no adverse clinical consequences in not taking this action.Miss Lobo also noted that there were no observations of vital signs recorded in the last medical record completed by Midwife Girling at 2300 hours on 29 July at or about the time when the pursuer was transferred from the birth pool room to a ward[40]. Miss Lobo accepted that the midwife may have checked vital signs without making a record but notwithstanding this consideration considered that she should still have noted the results of any checks in the case notes.She did however go further and state that since there was nothing adverse in the records between the entry at 2300 hours on 29 July and the next entry at 0900 hours on 30 July and that the latter entry was in her view within normal limits, there was no significance in a failure to record vital signs at 2300 hours.
• [50]In relation to placental examination Miss Lobo noted that the entry in the notes at 2150 hours by Midwife Girling reported “placenta complete”.She stated that she had considerable experience of examining placenta and it was something that, notwithstanding her position as a consultant midwife, she still did regularly.She accepted that it could be difficult to determine if a placenta was complete and that was why maternity units had experience of women returning after birth with haemorrhages and it being discovered that there were retained products of conception within the uterine cavity.She said that placenta varied in size and shape, not all were smooth and as a consequence it could be difficult to notice if a piece was missing.In her report she cited a study which showed that in developed countries 2% of postnatal women are admitted to hospital with a secondary postpartum haemorrhage[41].In conclusion her evidence on the subject was:

  “It is possible to miss that it was not in fact intact, not through a failure, just one of those things.  It sometimes happens.”

• [51]In relation to the alleged failure by midwives to take vital signs prior to discharge on the morning of 30 July Miss Lobo observed that there was no note in the medical records of any adverse findings during the night of 29/30 July.The entry at 0900 hours on 30 July was not concerning.The observations of vital signs taken at that time were within normal limits.She noted the entry in the clinical notes relative to the incident at 1045 hours when the pursuer passed a blood clot whilst taking a shower[42].In relation to that entry she said that “Nothing at all in this entry concerns me”.She was asked about the entry in that record noting that the blood clot was weighed at 180mls and asked whether normal practice would have been to double that in order to obtain a more accurate estimate of blood loss.Her answer to that question was that she had never heard of a practice of doubling the weight of blood clots.She said that it was not something that was done in the maternity unit for which she was responsible.Moreover she stated that when she heard of this contention in preparation for the case she took it upon herself to phone hospitals and medical schools in Scotland. She phoned two out of the four medical schools and the persons she spoke to at these institutions did not have a practice of doubling the weight of blood clots.Subsequently at a meeting she spoke to a representative of a third medical school who also stated that it was not a practice taught in that institution.In relation to hospitals she said there were 15 maternity units in Scotland. She had contacted them all and only one, Aberdeen Maternity Unit, had a practice of doubling the weight of blood clots for the purposes of estimation of blood loss.So far as the present case was concerned she did not consider that the clinical picture necessitated the taking of observations at 1045 hours after the clot had been passed.She noted that it was simply a clot.Examination, as recorded in the notes, showed that the pursuer’s fundus was firm and her lochia was normal.She considered it would be normal to pass blood clots at this stage postnatally.She considered that what the midwife did following the passing of the blood clot by the pursuer at 1045 hours was normal and usual practice.It is what she would have done if faced with the same clinical picture.On the basis of this evidence Miss Lobo did not consider there was any departure from normal practice in discharging the pursuer at 1200 hours on 30 July.She noted that the pursuer was advised on discharge to report anything unusual to the midwives who would be visiting her on a domiciliary basis and to contact the hospital and return if she had any concerns. She considered that having regard to the clinical picture as known at that time such advice was appropriate.
• [52]In relation to the postnatal domiciliary care Miss Lobo, as had Mrs McConville, accepted that the issue was one of fact.She could only go on what was contained in the community midwife records[43].She had no concerns with any of the entries made by the midwives in the period 31 July to 8 August.Miss Lobo did observe that the entries under the heading “Fundus” were important.These entries were all as she would have expected and, in her view, were not consistent with complaints of continued heavy bleeding.
• [53]At the end of her evidence Miss Lobo indicated that in most cases of postpartum haemorrhage there were no warning signs.Very frequently the first signs were simply the onset of heavy vaginal bleeding.

   

  Parties Submissions

  (i) Pursuer

• [54]In relation to the first alleged ground of fault, the negligent examination of the placenta, the pursuer’s position was that the application of the familiar test in Hunter v Hanley[44], applicable in cases of clinical negligence, was not appropriate.A central issue in the present case in relation to the issue of the examination of the placenta was one of fact.The pursuer submitted that there was no dispute between the parties as to the practice which the examining clinician Midwife Girling, should have undertaken.The question for the court was whether, on a careful assessment of all the evidence, Midwife Girling was or was not reasonably careful in her examination of the placenta.The present case was said to be similar to a decision in the English Court of Appeal, Fallows v Randall[45], where there were competing explanations in a case involving a failed female surgical sterilisation.In such a case Stuart‑Smith LJ stated that the correct approach in determining whether or not the clinician had exercised the requisite degree of care was determined as follows:

  “In my judgment the Bolam principle has really no application where what the judge has to decide is, on balance, which of two explanations – for something which has undoubtedly occurred which shows that the operation has been unsuccessful – is to be preferred.  That is a question of fact which the judge has to determine on the ordinary basis of balance of probability. It is not a question of saying whether there was a respectable body of medical opinion here which says that this can happen by chance without any negligence, it is a question for the judge to weigh up the evidence on both sides, and he is, in my judgement, entitled in a situation like this, to prefer the evidence of one expert witness to that of the other.  It seems to me that the judge, faced with the alternative theories...was entitled on the balance of probabilities to prefer the evidence of [one expert]...to the somewhat remote theories of the...[others].”

   

  In relation to the factfinding exercise which, on the basis of the principle just quoted, requires to be undertaken counsel referred to the Opinion of Lord Brodie in Toremar v CGU Bonus Limited[46].  Thereafter counsel for the pursuer discussed the evidence available in relation to the placenta.  He placed emphasis on what he described as “incontrovertible pathology evidence”, it was in fact ultimately accepted by the defenders, that some placenta was left behind in the uterus.  His submission was that the size of the largest recovered fragment of placenta “does not necessarily tell us the largest possible size of the piece that tore away from the placenta on July 29”.  He observed that the largest piece of retained product “had enough integrity to survive three weeks in uterus”.  He also noted that that piece “survived the process of removal”.  He submitted that “the largest piece was of a shape and bulk that invited measurement in three dimensions using a metal ruler”.  In relation to the issue of shape the submission was that it was not necessary to make a finding about the precise shape.  He said that the “candidates”, of what the fragment was originally, “...seemed to be that the piece was a whole cotyledon or a sliver across more than one cotyledon”.  The conclusion reached by counsel was that having regard to these factors Midwife Girling should have detected that the placenta was incomplete during her examination. 

• [55]In relation to the alleged negligent failure to take vital signs after the passing of the blood clot at 1045 hours on the morning of 30 July and prior to discharge, the pursuer’s submission was that in this area the applicable test was that enunciated in Hunter v Hanley (supra ).Counsel for the pursuer accepted that her vital signs were in the normal range at 0900 hours that morning.His positon was that “there is not a lot between the parties on what ought to have been done by the discharging midwife...on the morning of July 31.”This was followed by a submission that the midwife was “...seduced by working in a low‑risk environment and assumed normality rather than being alert to the presentation of the patient.”Beyond that the submission was no more than that the evidence of Mrs McConville in relation to the procedure to be followed should be preferred to the evidence of Miss Lobo.Counsel addressed the issue of causation in relation to this aspect of alleged negligence, he obviously appreciating that a finding of liability could only follow if there was a causal link between any negligence which was proved and subsequent damage sustained by the pursuer.The submission was that if there was a negligent failure to take vital signs then the court “should not visit the consequences of missing measurements on the pursuer”.Reliance was placed upon Keefe v The Isle of Man Steam Packet Company Limited[47]. The submission was developed by submitting that

  “the only fair way to approach the issue is to say that the pursuer would have been kept in hospital and would, ultimately, have been examined by a midwife who went through the discharge routine afresh including taking the vital signs.” 

   

  Recognising that this submission did not, of itself, establish a causal link to the events of 20 August, counsel for the pursuer then accepted that the court still required to make an assessment of the pursuer’s evidence about bleeding in the period following her discharge from hospital in order to establish the necessary causal link. 

• [56]So far as the third alleged ground of negligence was concerned, the postnatal care provided by community midwives, the pursuer submitted that the positon was “simple”.It is said to turn on the oral evidence of the pursuer, her husband and the three midwives.

   

  (ii) Defenders

• [57]The defenders’ submission was that the principle test applicable to judging the conduct of the midwives was that laid down by Lord President Clyde in Hunter v Hanley (supra), firstly that a pursuer must prove that a professional said to have been negligent was guilty of such failure as no professional of the same discipline exercising ordinary skill would be guilty of if acting with ordinary care.Second that in order to establish liability where there is an alleged deviation from normal practice a pursuer must prove first, that there was a usual and normal practice, second, that the professional had not adopted that practice and, third, that the course that the professional adopted was one which no professional person of ordinary skill would have taken if acting with ordinary care.So far as the evaluation of expert evidence was concerned reliance was placed on the now familiar criteria set forth in Bolitho v City and Hackney Health Authority[48] , that where there are competing bodies of opinion in relation to matters of medical or surgical practice it is not for the court to prefer one to the other.It was further accepted that the application of this principle has been accurately summarised by Lord Hodge in Honisz v Lothian Health Board[49].Lastly as a matter of generality counsel for the defender submitted that to succeed the pursuer must establish as a matter of fact a causal connection between the alleged negligent acts or omissions and the injury on the usual balance of probabilities test.The onus in relation to these matters rested with the pursuer.
• [58]Counsel for the defenders then addressed the evidence.In relation to the issue of placental examination her position was that the examination had been accurately recorded in the medical notes.Midwife Girling had given clear evidence that she would have inspected the placenta carefully in accordance with her usual practice.All the relevant witnesses agreed that on occasions an incomplete placenta may not be detected despite a careful inspection.The pursuer’s own expert midwifery witness, Mrs McConville, accepted that even where there is careful examination there can be a failure to detect small pieces of missing placenta.At its highest her evidence was that on careful examination what she termed a “significantly sized” missing piece of placenta should not be missed.She was unable to explain adequately what she meant by “significantly sized”.To that extent her evidence was, in the submission of counsel for the defenders, confused and not in accordance with Miss Lobo, or for that matter Mr Smith and Mr Mander.Beyond that it was submitted that the shape and volume of the fragment of retained placental tissue examined by the pathologist was unknown.It was therefore impossible to determine what part of the placenta had been retained.
• [59]In relation to the second ground of negligence counsel for the defenders initially submitted that there was a significant factual dispute in the evidence of the pursuer and the two midwives involved in relation to the issue of whether or not the pursuer sustained significant bleeding during the night 29/30 July.On this issue counsel submitted the pursuer’s version of events was highly improbable.It should be regarded as incredible or at least unreliable.In relation to the actions of Midwife Rennie the submission was that the pursuer had failed to establish that it was necessary for the pursuer’s vital signs, her blood pressure and pulse, to be taken prior to discharge.The position of Midwife Rennie that there was no need to take vital signs given that these had been satisfactory at 0900 hours and that the pursuer’s overall clinical presentation was satisfactory was supported by the opinion evidence of both Miss Lobo and Mr Smith.The pursuer had failed to establish that the evidence of those experts was unreasonable, irrational or illogical to the extent that it required to be rejected.
• [60]So far as the third ground was concerned, counsel for the defenders was at one with counsel for the pursuer in that the matter was one of fact.The submission for the defenders was that it was improbable that three consecutive midwives would have been told about excessive bleeding yet ignored that and noted something different in the records.It was also submitted that it was improbable that the pursuer would not have contacted the midwifery team or the hospital if she had, as she contended in evidence, continuing concerns about bleeding throughout the entire period when she was under the care of the community midwives.The pursuer’s evidence on this aspect of matters should be rejected as incredible or at least unreliable.

   

  Reliability and Credibility

• [61]Having regard to the submissions I heard it is clear that the issue of the reliability and credibility of the pursuer’s evidence is a matter which I require to address.Whilst not directly raised in submission I also consider that I require to consider the reliability and credibility of the evidence of the pursuer’s husband and mother.
• [62]In relation to the pursuer’s evidence I am satisfied that during the course of her examination her evidence on a number of matters changed, both within examination-in-chief and on cross-examination.In that category falls to be considered her evidence in relation to the number of injections she received while delivering the placenta, her evidence as to whether or not she went to the lavatory between the two attempts at controlled cord traction to assist delivery of the placenta, her evidence of the number of midwives in attendance during labour and birth and her evidence as to how many times she changed her night clothes during the overnight stay in hospital 29/30 July.Beyond inconsistencies in her evidence I have to have regard to the fact that some of the claims made in evidence by the pursuer are not supported by entries in her case notes.In that regard there are again issues of the number of injections she received whilst delivering the placenta, whether or not she went to the lavatory whilst in the birth pool room, the number of midwives in attendance during labour and birth, the absence of any reports of bleeding during the stay in the ward overnight 29/30 July and the lack of any report of a blood clot passed at 0900  hours on 30 July.I also require to have consideration to the fact that the pursuer maintained that she reported heavy bleeding throughout the period 31 July – 8 August to three midwives but there is a complete absence of any record of the same, and indeed notes to the contrary, in the records kept by these midwives.In considering this factor I also have to bear in mind that the relevant records remained throughout this period in the possession of the pursuer who therefore had the ability, had she been concerned about the content of the notes, to raise the issue the next time a midwife visited or, for that matter, by drawing attention to errors in the midwives’ record keeping to the midwifery unit at Ninewells Hospital.I have to have regard to the evidence of the various midwives involved and to their record keeping.In relation to that issue there is no objective evidence which would entitle me to doubt the accuracy or veracity of entries in any of the clinical notes.Moreover I am bound to state that all of the midwives who gave evidence appeared to me to be endeavouring to be candid and frank in the evidence they gave.In that regard I note that Midwife Girling and Midwife Fenwick both candidly accepted that they were open to criticism for failing to complete the partogram which was with the pursuer’s case notes and should have been completed as a record of the events of birth.Moreover all of the midwives who gave evidence impressed me as caring professionals who had the interests of their patients foremost in their minds.This factor is, in my view, most important when considering the alleged failure by the three community midwives who visited the pursuer between 31 July – 8 August, all of whom are said to have failed to record the pursuer’s reports of heavy bleeding and to have made entries in the records to the contrary.I observe firstly that, as was submitted by counsel for the defenders, it is highly unlikely that three professionals would each make the same mistake in this regard.Secondly, having regard to the way in which these witnesses gave evidence, their appreciation of their professional duties and the professional standards they are required to meet, and to their demeanour in giving evidence, I am satisfied that the entries they made were, on the balance of probabilities, likely to have been accurate and correct.
• [63]A last factor to which I am entitled to have regard is the manner in which the pursuer gave her evidence and her demeanour.In that regard I consider that there were occasions in her evidence, particularly during cross-examination, when the pursuer appeared to me to be somewhat aggressive and truculent.This was most marked when counsel for the defenders was putting to her that despite her repeated assertion that she reported heavy bleeding to the community midwives during domiciliary visits the notes they made recorded no such complaints but noted normal or satisfactory findings in this regard.When faced with this fact the pursuer’s position was, stated in what I noted contemporaneously was a “truculent manner”, “they just ignored what I told them” and that if they had failed to record that, it was “their problem not hers”.
• [64]When I have regard to the totality of all these matters I am satisfied that the evidence of the midwives is to be preferred to that of the pursuer.In relation to the pursuer’s evidence about bleeding during her overnight stay in the ward on 29/30 July I am satisfied that the pursuer’s account is incredible and cannot be accepted.I make the same finding in relation to her evidence about reports of bleeding to the midwives at domiciliary visits between 31 July and 8 August.
• [65]I can deal with the pursuer’s husband and mother more briefly.The pursuer’s husband, Wayne Glen, gave evidence in relation to the labour and the birth which was at variance with that given by his wife.In that regard his account of where the episodes of controlled cord traction were attempted did not match the account given by his wife, or for that matter the two midwives.In relation to the domiciliary visits by the midwives between 31 July – 8 August he stated that he saw signs of alleged blood loss by the pursuer on a settee, a detail not mentioned by the pursuer.So far as demeanour was concerned Mr Glen was at times somewhat vociferous and, in my opinion, exaggerated in the way he gave evidence.This was most obvious in his description of the procedure of controlled cord traction which was both more extreme than his wife’s account of this procedure and markedly at odds with the evidence given by the two midwives involved.Similarly his account of blood loss said to have been experienced by the pursuer in the period 31 July – 8 August appeared to me to be given in an exaggerated manner.For these reasons I am not satisfied that the evidence of Mr Glen was reliable.
• [66]So far as the pursuer’s mother, Mrs Tait, is concerned I have no criticism as to the way in which she gave her evidence.She appeared to me to give her evidence in a relatively straightforward manner and appeared to be trying to be objective.In examination-in-chief it is fair to say that the general tenor of her evidence supported the pursuer’s case of blood loss in the period 31 July – 8 August.She did however make important concessions in cross‑examination.She firstly accepted that her direct knowledge of any blood loss sustained by her daughter, the pursuer, came from staining on bed linen, underclothing and night clothes used by the pursuer.She accepted that it was difficult to accurately gauge the level of blood loss from stains and that blood staining on clothes or bed sheets could give an exaggerated level of the blood loss a person had sustained.Further, she accepted that the level of staining that she saw on her daughter’s undergarments and night clothes reduced over time until it was no more than a few spots.When the totality of Mrs Tait’s evidence is considered I am satisfied that it is not inconsistent with the evidence contained in the midwives’ records.Having regard to that consideration I have no reason to make an adverse finding in relation to reliability or credibility as regards Mrs Tait.

   

  Consideration

• [67]The first ground of alleged negligence is in relation to Midwife Girling’s examination of the placenta. In relation to this chapter I accept that the characterisation of counsel for the pursuer of the issue for determination as one of fact is accurate.There is no dispute between the parties in relation to how Midwife Girling should have examined the placenta, equally there is no dispute that insofar as the method of examining a placenta is concerned the midwife is on the balance of probabilities, likely to have acted appropriately.The issue is whether Midwife Girling was reasonably careful in this examination. I accept that counsel for the pursuer’s submission on the applicable law in relation to this case is correct.
• [68]In my view the starting point here is the entry in the case notes “placenta complete” made by the examining midwife.She gave clear evidence as to her method of examining the placenta which was uncontroverted by either of the midwives who gave expert opinion.It was, for that matter, not criticised by either of the obstetricians who gave expert evidence.There was also evidence, uncontroversial in the end of the day that the examination of placenta is not an exact science and, no doubt as a consequence of this, the failure to detect missing pieces of a placenta on examination is an occurrence which happens in at least 1% of births and is something which is not regarded within the midwifery profession as axiomatically giving rise to performance by the midwife at a standard below that which would be expected of the ordinarily competent midwife exercising reasonable care.Having regard to those considerations I am of the view that in order to succeed in this aspect of the case the pursuer would require to satisfy me that on the basis of the evidence available it had been established on the balance of probabilities that the part of the placenta which had been retained in the pursuer’s uterus was of such dimensions and shape that no ordinarily competent midwife exercising ordinary care would have failed to detect the excision of such a portion from the placenta on examination.Approached in this way I am of opinion that the high point of the pursuer’s evidence is the evidence of Mrs McConville to the effect that she thought that a “significantly sized” piece of placenta was missing.The problem for the pursuer’s case with this evidence is that, as is clear from the evidence of Professor Herrington, the exact size and, as importantly, shape of the largest piece of the retained product is, quite simply, unknown.In addition to this is the consideration that Mrs McConville was, perhaps understandably, unable to say precisely what she meant by “significantly sized”.It accordingly appears to me that I have insufficient evidence to establish what the shape and size of the missing piece of placenta was and, as a necessary consequence, whether or not the missing piece was, in the context of this particular placenta, “significant”.It further follows, as a matter of logic, that I am unable to form any conclusions as to what effect, if any, this missing piece would have had on a midwife’s examination of the placenta.Put another way if, on the basis of the evidence, I am unable to determine whether or not the missing piece, or pieces, were significant. I have no material which would enable me to determine whether or not the midwife’s examination fell below the standard of care required.Having regard to these considerations I am not satisfied that the pursuer has proved any deficiency in Midwife Girling’s examination of the placenta.
• [69]Turning to the second alleged ground of negligence, the alleged failure to take vital signs after the passing of the blood clot at 1045 hours, the position is, in my view, relatively straightforward.This part of the pursuer’s case requires to be judged having regard to the familiar test in Hunter v Hanley (Supra).There is no dispute that as a matter of fact vital signs were not checked by Midwife Rennie following the 1045 hours incident.It is equally well‑established in the evidence that the decision not to take vital signs was influenced by the pursuer’s general wellbeing at this time, the fact that her vital signs had been taken and had been within normal limits at 0900 hours and that, on my evidential findings, the pursuer had no recorded blood loss throughout the proceeding night or that another blood clot was passed at 0900 hours.Against that background of fact two appropriately qualified experts, a midwife and an obstetrician, expressed the view that there was no departure from an acceptable standard of care by the midwife in proceeding to discharge at 12 o’clock, particularly having regard to the consideration that the patient was informed prior to discharge that any reoccurrence of bleeding should be reported immediately to the community midwives.Contrary opinions were expressed by another midwife and obstetrician.The midwife, Mrs McConville, considered that Midwife Rennie fell below the standard to be expected from an ordinarily competent midwife exercising reasonable care by failing to take vital signs which might, dependent on their outcome, have resulted in a call for medical review.As I understood the reasons for this view it was at least informed by her opinion that the blood loss experienced by the pursuer was not accurately stated as 780mls but should be considered as falling within a range 780-960mls.I have no reason to doubt the veracity of this evidence, it was confirmed by Miss Lobo that the practice in the maternity unit where Mrs McConville works was to assess blood loss by doubling the volume of any blood clots measured.It was however a method of calculating blood loss which was not supported by Mr Mander, the obstetrician who gave evidence on behalf of the pursuer, nor the midwife or obstetrician who gave evidence for the defenders.The unchallenged evidence of Miss Lobo was that the unit where Mrs McConville works appears to be the only one in Scotland that adopts the practice of doubling the volume of clots to derive a figure for blood loss.The consequence of this is that having regard to the relevant guideline[50] the pursuer’s postpartum haemorrhage would still fall to be regarded as minor.The upper end of Mrs McConville’s estimate of blood loss would place the haemorrhage close to the boundary of 1000mls where in terms of the guideline clinical review would have been required.I do however observe that even on Mrs McConville’s evidence a threshold for mandatory clinical review was not reached.It follows that the situation is one where there are conflicting bodies of expert opinion as to the appropriate course to be undertaken by the treating clinician.
• [70]In these circumstances I am of the view that this is a case where there are competing bodies of opinion in relation to matters of clinical practice.In such a case on the clear authority of Bolitho v City and Hackney Health Authority (supra) and Honisz v Lothian Health Board (supra) it is not my function to prefer one body of opinion to the other.I require to consider if each expert has applied their mind to the comparative risks and benefits of a course of action and if the conclusion they have reached is defensible.In my opinion the views expressed by Miss Lobo and Mr Smith pass each of these tests.They both considered that having regard to the clinical history there was no appreciable risk.They further had regard to the precaution that the pursuer was advised on discharge that any recurrence of bleeding should be reported back to community midwives or to the maternity unit in the hospital.In these circumstances I am satisfied that the opinions expressed by these witnesses are defensible and cannot be regarded as unreasonable or irresponsible.It follows that I am not satisfied that the pursuer has established negligence in relation to her discharge from hospital.
• [71]As was recognised by counsel for the pursuer I would, had I been with him in relation to the issue of primary negligence in this aspect, still have required to establish a causal link between negligent discharge and the postpartum haemorrhage.As he correctly recognised this would depend upon my finding in fact in relation to the pursuer’s contention of heavy bleeding in the period following her discharge.I have already made clear that I do not accept the pursuer’s evidence in relation to this and prefer the evidence of the three community midwives.It follows that I would not have accepted the pursuer’s submissions in relation to causation of this element of the claim.
• [72]There remains the final aspect of alleged negligence, that relating to care in the domiciliary period.Both counsel accepted that this aspect of the claim is entirely dependent on my view of the facts.I have already made it clear that I do not accept the pursuer’s account of this period.I do not accept that she was accurate in relation to her account given to the court of heavy bleeding in this period.I accept the veracity of the evidence given by the three midwives involved and the accuracy of their recordings of the pursuer’s position in relation to bleeding as recorded in their medical notes.
• [73]On the basis of the foregoing I am satisfied that the pursuer has failed to establish any ground of negligence again the defenders.In these circumstances I repel the pursuer’s first plea‑in‑law and sustain the defenders second, third and fourth plea‑in‑law, assoilzing them from the conclusion of the summons.