Woman’s late application to amend £15m medical negligence claim over ‘mismanaged birth’ refused

A judge in the Court of Session ruled that the minute of amendment, which proposed a new “risk disclosure” case based on the UK Supreme Court’s decision inMontgomery v Lanarkshire Health Board, “conflicts with the principle of finality”.

Lord Stewart heard that the pursuer Jill Clark, 23, sued the defenders Greater Glasgow Health Board for £15 million, claiming that her mother’s labour was “negligently mismanaged” by the midwives and doctors.

The court was told that her mother’s womb ruptured at 03.45 and the baby was delivered by emergency caesarean section at 04.10 on 2 March 1992 at the Queen Mother’s Maternity Hospital in Glasgow, but she suffered a catastrophic hypoxic brain injury.

She was left “completely incapable” with no power of speech, though her intellectual functioning, vision and hearing were “largely spared”.

The pursuer instructed lawyers using assistive technology and an action for damages was raised, alleging that the oxygen supply to the pursuer’s brain in utero was impaired because her mother’s womb ruptured.

The main points of alleged mismanagement were that the labour was high risk because of a previous caesarean section; that the labour should not have been augmented with syntocinon (synthetic oxytocin) thereby putting additional strain on the womb; that the rate of augmentation was in any event too high; that a vaginal examination should have been undertaken by at latest 03.05; and that the labour should have then been abandoned and delivery effected by caesarean section at 03.30 or thereabouts at latest.

The judge heard evidence and submissions over 21 days between January and February 2015 before taking the case under advisement, but on 12 March 2015 the judge’s clerk was contacted by the pursuer’s representatives, who said that Lord Stewart should delay writing up the judgment because of the Supreme Court’s decision in Montgomery, which was issued on 11 March 2015.

A motion and proposed minute of amendment for a new case intimated to the defenders on 19 March 2015 stated that the obstetricians attending on Mrs Clark had a duty to disclose to Mrs Clark the risks of vaginal birth after caesarean section ; that the obstetricians failed to disclose the risks; that if the obstetricians had given proper advice Mrs Clark would have elected to have a repeat caesarean section ; and that there would then have been no birth brain injury.

Therefore, it was not the management of labour that was wrong: but there never should have been a labour in the first place, which the judge described as “a radical change of front”.

The motion, which came six weeks after the pursuer closed her proof, one month after the case was taken to avizandum and a fortnight after the expiry of the five-year prescriptive period for reparation claims, was made in terms of RCS 24.1(1) and (2)(c) which authorises the court at any time before final judgment to allow “an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties,” namely, “whether the pursuer is entitled to compensation from the defenders for her birth brain injury on the basis that the injury was caused or contributed to by a breach or breaches of duty on the part of the defenders’ servants for which the defenders are vicariously liable”.

“The application challenges a number of principles designed to keep litigation within bounds, including the overarching principle of finality, expedit rei publicae ut sit finis litium: but on the other side is a permanently disabled young woman who should not be deprived of any proper opportunity to vindicate her claim for compensation,” Lord Stewart said.

It was submitted on behalf of the pursuer that she was not aware of the effect of the decision in Montgomery, in which it was held that a doctor is under a duty to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”.

However, the judge ruled that that was not in itself a “reasonable explanation” for bringing the risk disclosure case so late and after weighing all considerations, he decided that the pursuer’s motion to allow the minute to be received and answered should be refused.

In a written opinion, Lord Stewart said: “The fact that the pursuer suffers from an injury of maximum severity weighs heavily on her side of the argument.

“On the other side the pursuer has had the benefit of legal advice and representation from practitioners, both solicitors and advocates, experienced in this area of litigation; for the reasons given above the decision of the Supreme Court in Montgomery does not have the decisive effect claimed for it; in the absence of acceptable information to the contrary, I have to conclude that the pursuer has had ample opportunity to state and prove her claim; if amendment were to be allowed there would be re-litigation of the case; and what is proposed on the pursuer’s behalf conflicts with the principle of finality, qualified though the principle may be in its practical application by the terms of RCS 24.1(1) and by the excepting and relieving provisions of the Prescription and Limitation (Scotland) Act 1973.

“On balance I am not persuaded that it is reasonable, equitable and in the interests of justice to allow the new case to be added at this stage or indeed to allow the procedure to be taken further.”

However, he did grant leave for the pursuer to appeal against his decision.

Lord Stewart added: “No one who has had the opportunity to see and hear the pursuer – in the day-in-the-life-of video – and to see and hear her parents in person could possibly not want to do what can be done for them within the rules. I emphasise that my decision is made on the material presented to me. For example, I have not been addressed on the article 6 ECHR ‘access to a court’ implications of the limitation and prescription rules.”