Inner House refuses appeal in action against maternity hospital staff by mother of baby born with cerebral palsy

About this case:

• Citation:
  [2024] CSIH 7
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

It was held by the lord ordinary that no breach of duty had been established by SD, whose son LD was born at Aberdeen Maternity Hospital in 2008. The grounds of appeal addressed the decisions of doctors during the induction ward rounds, and whether one doctor had negligently failed to arrange an emergency caesarean section.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lord Pentland. Khurana KC appeared for the pursuer and reclaimer, and McConnell, advocate, and Dundas, advocate, for the defender and respondent.

Suspicious trace

On 21 August 2008, 13 days beyond her estimated date of delivery, the pursuer was admitted for induction of labour. After a few days of observation, and some administration of the drug Prostin, the pursuer was transferred to the labour ward at around midnight on 23 August after a nurse noticed early decelerations on her CTG trace. A doctor, Dr Sripada, assessed the trace as suspicious at 1:10am on the 24th, and three hours later decided that the trace was not bad enough to require a caesarean.

At 4:36am, the foetal heart rate dropped suddenly, later determined to be the umbilical cord wrapping around the baby’s neck. LD was delivered at 5:13am that morning, but the injuries he suffered left him severely disabled. On 3 September, the pursuer met with a Dr Danielan, senior consultant obstetrician, who told her that the trace maybe merited a foetal blood sampling about half an hour before delivery, but it was “unknown” whether this would have made a difference to the outcome.

In determining whether Dr Sripada ought to have ordered an emergency caesarean at 4:10am, the lord ordinary accepted expert evidence led for the defender that, while another competent obstetrician might have come to a different view, her decision-making was neither inexplicable nor unreasonable. There was no evidence was to how or why an earlier transfer would have altered the outcome.

It was submitted on appeal that, even if it was accepted that the trace was no more than suspicious at 4:10am, nonetheless the lord ordinary should have decided that, when regard is had to all the risk factors, there was no reasonable or rational basis for delaying a caesarean section.

Regarding her case against the doctors in the induction ward, it was submitted that their failure to overrule the decision of the midwives, two of whom were very junior, not to give her another dose of Prostin resulted in her being admitted to the labour ward later than she should have.

Within acceptable practice

Lord Malcolm, delivering the opinion of the court, said of the first ground of appeal: “Essentially the pursuer is asking the court to start afresh and consider a wholly new argument in favour of a breach of duty. However it has no foundation in the evidence.”

He continued: “In short, if the lord ordinary was entitled to hold that Dr Sripada’s classification of the trace was open to her and that her decision-making was reasonable, and on the evidence clearly she was so entitled, there is no error in her decision on this part of the pursuer’s case and no basis for the court to interfere with it.”

On whether the pursuer could establish a different outcome if she had left the induction ward earlier, Lord Malcolm said: “Throughout there was no significant concern as to the well-being of mother or baby, and the progress of induction was standard, albeit slow. There was never a requirement to seek a medical review in what was a midwifery led process. That the lord ordinary noted that no doctor intervened is not inconsistent with her rejection of the case against them.”

He went on to say: “Given the absence of a pleaded case of fault against the doctors, and the now unchallenged decision that the midwives were not negligent, we are not surprised to discover that the evidence fell below what would have been required and that the submission of breach of duty on their part was rejected because of insufficient evidence. On any view it failed to rebut the expert evidence that the pursuer’s care in the induction ward fell within acceptable practice.”

Lord Malcolm concluded: “We would not refer to the concept of remoteness of damage in the present context. The judge was on stronger ground when saying that the real difficulty for the pursuer was that there was no evidence as to how and why an earlier transfer to the labour ward would have altered the outcome.”

The reclaiming motion was therefore refused.