Health board not in breach of duty in action raised by woman whose son was born disabled

About this case:

• Citation:
  [2022] CSOH 63
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Wise

SD, the pursuer, sought damages for the loss, injury and damage caused to her son, LD, which she averred were a consequence of negligence by certain doctors and midwives in the antenatal ward of Aberdeen Maternity Hospital. The Grampian Health Board opposed the action on the ground that the pursuer had not made out her case.

The case was heard by Lady Wise in the Outer House of the Court of Session. Khurana QC and Heaney, advocate, appeared for the pursuer and Stephenson QC and McConnell, advocate, for the defenders.

Sudden drop

The pursuer gave birth to LD in August 2008. On her admission to hospital on 21 August 2008 she had been 13 days beyond her estimated date of delivery. Following three days of monitoring and some treatment, she was admitted to the labour ward at around midnight on 24 August. Continuous cardiotocography was commenced, with grade 2 meconium observed on her sanitary pad at around 2:10 am, which was assessed by a midwife as suspicious.

At 4:10am the doctor overseeing the birth, Dr Sripada, decided the trace was not bad enough to require a caesarean. Twenty-six minutes later the foetal heart rate dropped suddenly, which led Dr Sripada to prepare for immediate delivery. LD was born at approximately 5:13am that day. It was later concluded that he suffered severe acute asphyxia as a result of compression of the umbilical cord shortly before birth and consequential quadriplegic dyskinetic cerebral palsy, leaving him severely disabled.

Evidence was given by the pursuer, several of the midwives who had seen her that night, and Dr Sripada, as well as independent experts for both parties. It was the pursuer’s case that the health board had breached its duty of care to her, in particular by not deciding to perform an emergency caesarean immediately after Dr Sripada had seen her at 4:10am. She further contended that but for the midwives’ breaches of duty LD would have born before 4:40am and would have been born uninjured.

The pursuer further averred that the midwives ought to have administered additional doses of Prostin to her in the days prior to her delivery on the mornings of 22 and 23 August or requested a specific medical review when considering the withholding of Prostin.

Equally legitimate conclusion

In her opinion, Lady Wise said of the conduct of the midwives in the days prior to 24 August: “It was not wrong to try different ways of encouraging labour, which would include the ‘expectant’ approach of waiting. By the afternoon of 23 August, however, a new consideration was that the pursuer had now been in hospital for some 48 hours and was still very much in the latent stage of ‘pre-labour’. It was both reasonable and appropriate of MW Braid then to take the decision to try to progress matters by administering Prostin.”

She continued: “All four skilled witnesses agreed that by 2008 induction of labour was very much a midwifery led process. There were certain matters that required medical action including prescribing, reviewing CTG traces that were concerning and there was oversight of the progress of the induction. However, I have concluded that at no time during the period from the prescription of the first dose of Prostin on 21 August to the decision to transfer the pursuer to the labour ward was there an identifiable situation in which a midwife acting with ordinary skill and care would have required to call for a doctor.”

On the conduct of Dr Sripada, Lady Wise said: “She was starting to think ahead and contemplate whether a caesarean section was going to be required. Her inability to secure a blood sample at 04:10 did not preclude the taking of a sample an hour later if dilation progressed as hoped. In fact the CTG had improved shortly after 04:10 and [expert witness] Professor Murphy considered that that was exactly what a reasonable obstetrician would have thought may well happen when deciding not to perform a caesarean section at 04:10.”

She concluded: “Once other factors are taken into account, including the prolonged labour, the suspicious trace and the inability to perform foetal blood sampling, a different reasonable obstetrician at 04:10 could have come to the contrary view to Dr Sripada, namely that caesarean section might be prudent. That does not render Dr Sripada’s alternative and equally legitimate conclusion unreasonable or amount to a breach of duty.”

Lady Wise therefore pronounced decree of absolvitor, as no breaches of duty had occurred. She observed that, had she been required to address the issue of causation, it would have been established if she found the only course available at 4:10 was to deliver the baby by urgent caesarean section.