Mother succeeds in negligence claim against health board over birth of brain damaged baby

A judge in the Court of Session ruled that the “relatively inexperienced” registrar’s management of the labour was negligent as she failed to follow the relevant guidelines and failed to seek the advice of a senior colleague after the foetal heart rate dropped in the period before the baby was born.

Lord Boyd of Duncansby heard that the pursuer “KR” raised an action against the defenders Lanarkshire Health Board following the birth on 1 December 2007 of her first child “BHR”, who developed cerebral palsy after suffering brain damage during the labour.

The court was told that the planned pregnancy proceeded as normal until 38 weeks, when the then 20-year-old mum-to-be experienced bleeding and was admitted to Wishaw General Hospital (WGH).

Cardiotocograph (CTG) monitoring of foetal heartbeat showed a normal reading and she was discharged home, but three days later she returned to hospital after she experienced a rupture of the membranes and “mild crampy abdominal pain”.

Again she was examined and monitored and the CTG appeared normal so she was sent home.

Then, on the morning of December 1 – eight days before the estimated delivery date, KR was admitted to hospital after experiencing “regular contractions”.

Between the time of admission and 1934 on the same day when the baby was delivered KR was continuously under the care of midwives and medical staff at WGH and it was a matter of agreement between the parties that “ suffered injury from acute hypoxia in the 30 minutes before her birth at 1934 hours on 1 December 2007 and that had been delivered at any time before 1914 hours on 1 December 2007 she is unlikely to have suffered any injury”.

As a result of this injury BHR developed significant disabilities in the form of dystonic athetoid cerebral palsy resulting from brain damage.

The pursuer claimed that the injury and resultant damage was caused by fault and negligence on the part of the defenders’ medical staff in failing to deliver the child before 1914 on 1 December 2007, but the defenders denied liability.

It was submitted that the defenders breached their duty of care because a registrar, Dr Olubumni Oniya, who attended at 1645, 1720 and 1818 hours, failed to call for the advice of a consultant.

Further, it was argued that Dr Oniya “failed in her duty” to discuss with the pursuer the non-reassuring features, and the options, including urgent delivery by caesarean, or assisted vaginal delivery at the later time, to enable the first pursuer to make an “informed decision” about, and give her “informed consent” to, the continuing progress of her labour.

The pursuer’s submission was that it had been established that the normal and usual practice for a registrar would be to follow the relevant guidelines and expedite delivery, having regard to the previous clinical history of the patient, and that Dr Oniya failed to do that and in so failing “acted as no ordinary competent registrar would have acted in taking ordinary care”.

There was some difference in opinion in the expert evidence of the four consultant obstetricians over the management of KR’s labour, but the judge ruled that the defenders were negligent in their management in the period following 1818.

In a written opinion, Lord Boyd of Duncansby said: “Consideration requires in the context of the situation at 1818 to be given to both the NICE guidelines and the RCOG guidelines.

“In terms both these guidelines advise that where there is clear evidence of acute foetal compromise, an example of which is a prolonged deceleration of greater than three minutes, foetal blood samples should not be undertaken and, in the case of NICE, urgent preparation to expedite birth should be made and, in the case of RCOG, the baby should be delivered urgently. The threshold identified in the guidelines was met in the present case in the period following 1818.

“Notwithstanding these considerations Dr Oniya did not follow either the NICE or RCOG guidance in the period following 1818 in that she did not prepare for the immediate delivery of the baby by means of an assisted vaginal delivery. Furthermore, she contravened the advice in both guidelines and proceeded to arrange for the taking of foetal blood samples.

“Whilst her management in this regard was not criticised by doctors Owen and Cooper in this matter, I regard the views they expressed to be lacking in a logical basis. They both accepted the proposition that implementation of the guidelines must be dependent upon the clinician’s level of experience.

“It is proven that Dr Oniya was in a general sense, relatively inexperienced. She did not follow the guidelines and furthermore did not seek the advice of a senior colleague. Having regard to all the foregoing features I am satisfied that Dr Oniya’s management in the period following 1818 was negligent.”

In relation to the issue of informed consent, the judge also said that he was satisfied that on the evidence, and with one exception, there was “no discussion at any point” during KR’s labour between her and Dr Oniya about the management of her case.