CNZ v Royal Bath Hospitals NHS Foundation Trust & Anor

The Claimant is a 26 year old woman who suffers quadriplegic cerebral palsy.

The 1^st Defendant runs the Royal United Hospital Bath. The 2nd Defendant is the Secretary of State for Health who is responsible for the antenatal care provided by the midwives in this case.

For the trial the Court was provided with three lever arch files, the first containing the pleadings, orders and witness statements. The second containing the experts’ reports. The third containing the medical notes and other relevant documents provided during disclosure. A video of part of the labour was made available.

During the trial the Court was also provided with various diagrams of the human brain and in addition the Claimant’s mother’s original ante-natal notes files.

The Claimant was born at about 01.03 hours on Saturday the 3rd of February 1996. She was a twin and her sister was born about 1 hour before her. As a result of acute profound hypoxic ischaemia, which she suffered before and for three minutes after her birth, she has cerebral palsy.

It is the Claimant’s case that her mother requested caesarean section (CS) but her requests were refused or delayed. In addition the Claimant asserts that her mother was never offered elective caesarean section (ECS) despite (on her case) such being a reasonable treatment and additionally that when the hospital finally decided to deliver the Claimant by CS the operation was carried out negligently late and therefore the acute profound hypoxic ischaemia which the Claimant was enduring in the last minutes of her time in the womb before birth and for 3 minutes after her birth was not avoided or ameliorated as it should have been.

It is the Defendants’ case that in 1996 ECS was not a reasonable treatment option to offer during the antenatal period, so it was not offered, that offering and advising normal vaginal delivery was the correct practice and that the Claimant’s mother did not request caesarean section antenatally. In addition the 1^st Defendant asserts there was no negligence during the labour and the parents’ requests for CS were granted in a timely way.

I will use the following abbreviations and defined terms in this judgment.

Caesarean section: The final term to define is caesarean section. The history of caesarean section is very long and goes back to historic Hindu, Greek and Egyptian texts. The Roman Lex Caesaria decreed that women who were dying or who died during childbirth should have their babies saved by surgical birth. In 1996 caesarean section involved major abdominal surgery with the mother under epidural (spinal) or general anaesthetic.

Did M request a CSMR during the antenatal meeting with any midwife or Doctor?

Was M offered ECS during the antenatal meetings by any obstetrician?

Did M agree to NVD having properly discussed the risk and benefits of NVD compared with CS with an obstetrician?

If CS was not discussed but should have been discussed, would M have chosen it contrary to the advice given by an obstetrician to choose NVD and only to have CS as a fall back when medically indicated?

Should M have been offered ECS during the antenatal meetings with an obstetrician? Was ECS a reasonable alternative treatment for M who was healthy, carrying twins who were healthy and lying head down and who had given birth twice before by NVD but who did not wish to have an ARM or an EA?

Did the obstetricians seek to persuade M to have NVD instead of CS in a way which breached M’s right to make an informed choice between reasonable alternative treatments?

Did the obstetricians fail to grant the parents’ choice for a CS during labour after midnight on 3.2.1996?

Did the obstetricians negligently fail to perform a CS quickly enough?

In April 2018 the Claimant’s lawyers sent a draft set of particulars of claim to the first Defendant as a sort of pre-action protocol letter. It was not a normal letter before action. In that document, which was drafted by counsel, the Claimant asserted the following facts: that there was a planned IOL for her birth by NVD. M arrived at Bath hospital on the 2nd of February 1996. It was specifically pleaded that there was a plan to break the M’s membranes but in fact they broke spontaneously for twin 1. M then requested epidural anaesthesia but the Doctor's attempts to site the needle failed. She was given Pethidin. The first twin, Bethany, was born in good condition at one minute past midnight on the 3rd of February. It was pleaded that Oxytocin was started and decelerations were shown in the FHR on the CTG trace at 00.05 and 00.09 but these were incorrectly labelled as LOC. It was pleaded that from 00.20 the CTG improved. It was pleaded that at 00.35 after a VE some discussion took place and M stated that she did not want an ARM and wanted CS under GA. The Doctor went for advice from a consultant and returned with a plan for transfer to theatre and then a further assessment to see if an ARM could safely be performed. Transfer to theatre occurred by 00.45 and then the parents requested a CS again. The Doctor telephoned the consultant again who agreed to CS and it was performed with delivery at 01.03. 13 minutes had passed since induction of anaesthesia.

The allegations of negligence focused solely on the Doctor’s failure to deliver the Claimant quickly enough. It was asserted that the interval between delivery of twin 1 and twin 2 should not normally be greater than 30 minutes. It was asserted that no reasonable obstetrician would have failed to decide to take M to theatre at 00.20. It was pleaded that there were only two realistic options for delivery at that time namely: ARM or CS both of which required transfer to theatre and therefore no delay was permitted after 00.20. It was pleaded the obstetrician failed to recognise three decelerations on the CTG at 00.05, 00.09 and 00.17 and that these were misinterpreted as LOCs. The doctors failed to attach an oximeter to measure M’s pulse which would have disclosed that in theatre the CTG transducer was not recognising the FHR but instead picking up the MHR. It was pleaded that the CS should have been started earlier and the Claimant should have been born by 00.43. In addition it was pleaded that at 00.35 M had requested a CS which should have been agreed at that time. Finally, it was pleaded that 13 minutes from induction of GA at 00.50 to delivery at 01.03 was too long.

The 1st Defendant’s letter of response dated June 2019 denied negligence. The 1^st Defendant complained that sending draft particulars of claim was not compliant with the pre-action protocol. It was denied that the interval between delivery of twins was not permitted to be greater than 30 minutes. It was asserted that at 00.20 hours no specific action was required because contractions had only recently started to develop after the administration of Syntocinon and it that was reasonable to wait. The response letter admitted that there were decelerations in the FHR after the first twin was born but asserted that these were neither sinister nor significant. It was pointed out that after transfer to theatre there was no CTG applied so the allegation in relation to the Oximeter was denied. In relation to the CTG taken on the labour ward it was asserted that it had a normal baseline with accelerations. It was asserted that the doctors were reasonable to allow 20 minutes following commencement of Syntocinon to see if spontaneous delivery occurred and that the transfer to theatre was appropriate thereafter and that assessment at theatre was appropriate in case the baby had descended into the pelvis. The time taken for the decision and the execution of the CS was reasonable. It was also asserted that the consent process involved explanations of benefits and risks for the various reasonable treatments and that this process took time.

The Claim Form was issued in November 2019 and the Particulars of Claim (POC), drafted by counsel, were dated March 2020 and signed by F. It was asserted that the Claimant lacked capacity to conduct the litigation. By this time the claim had been substantially changed. It was asserted for the first time that the Defendant had failed to offer ECS which was pleaded to be a reasonable alternative treatment to NVD. In addition it was asserted that the Defendant had failed, following the delivery of twin one, to agree to M’s request for a CS. The previous allegations of clinical negligence due to delay in performing the CS were maintained. The Claimant pleaded out her mother’s previous pregnancies in 1981, 1985 and 1990. In relation to the Claimant’s antenatal period it was asserted that M had told a community midwife that she wanted a CS and M believed the midwife had written this into the AN notes. It was asserted that no steps had been taken by any midwife to arrange a discussion about a CS with a Doctor. M asserted she had told a midwife that she did not want an ARM or an EA. The reason for these views was as a result of her two previous pregnancies in 1981 and 1985.

It was specifically pleaded that on the 19th of January 1996 M had requested a CSMR but she was told that this was not an option so she then expressed her preference for natural labour without an ARM or and EA.

It was pleaded that on the 30th of January 1996, at the hospital antenatal clinic, a birth management plan of induction of labour (IOL) was agreed. M understood this was because of a bad pregnancy rash she had developed over the preceding week. It was pleaded that M was not offered an ECS at that meeting. (I note that no allegation was made in this pleading about a CSMR on the 30th of January 1996 at that clinic.)

In relation to events at the hospital it was pleaded that M attended for IOL and when first seen by a midwife she reconfirmed that she did not wish an ARM or an EA. M pleaded that she stated she was not happy about having IOL. Later that day M requested an EA but attempts to site the needle failed. Bethany was born and the Claimant relied on a video of events between Bethany's birth and 00.30. Thereafter the Claimant pleaded that the CTG and the video showed decelerations in the FHR around 00.05, 00.11, 00.14 and 00.17. It was pleaded that after 00.20 the CTG had improved and was discontinued at 00.41. At 00.27 Doctor Tristram left the labour ward room and while she was away the video showed M continuing to push with midwife encouragement and then having her legs put in stirrups, M was distressed and crying. It was pleaded that at 00.35 Doctor Tristram returned, performed a VE, found that the cervix was closing and started a discussion with the parents. It was pleaded that M did not want an ARM and said she wanted a CS under GA. The Claimant asserted that at 00.35 the only reasonable treatment option was a CS under GA. In the alternative it was pleaded that if CS was not the only treatment option then it was a reasonable alternative treatment and should have been offered. Because the Claimant was requesting it she clearly would have accepted an offer of CS. It was pleaded that the Doctor then telephoned the consultant who advised transfer to theatre with subsequent assessment to see if an ARM could safely be performed. It was pleaded that this decision ignored M’s request for a CS. It was pleaded that by 00.45 M was in theatre and the midwife noted the parents’ next request for CS. After an assessment by Doctor Tristram she then again phoned the consultant and CS was finally agreed. GA induced at about 00.50 and the Claimant was delivered at 01.03 some 13 minutes after the induction of anaesthesia.

The Claimant alleged negligence on the following bases. Firstly it was alleged that the 1st Defendant failed to offer M an ECS. Secondly it was alleged that the 1st Defendant ignored M’s request for a CSMR and thirdly it was alleged that the CS eventually performed by the 1st Defendant was done too late. In more detail it was asserted that by 00.20 CS was a reasonable alternative treatment which had to be offered to M but was not. In addition it was pleaded that by 00.35 when M requested CS the 1st Defendant delayed agreeing.

In relation to negligence during labour it was asserted that without satisfactory monitoring labour should not have been permitted to continue so long. Decelerations on the CTG especially at around 00.16 and those at 00.11, 00.14 and 00.19, which were all audible, should have led Doctor Tristram by 00.25 to conclude that the only reasonable course of action was to start making arrangements for transfer to theatre at that time. In addition it was pleaded that the most realistic option at that time was delivery by CS. The Claimant asserted it was negligent to delay transferring M to theatre between 00.25 and 00.40 and that the obstetrician failed to recognise decelerations in the FHR at 00.05, 00.09 and 00.17 (the times are different from those set out earlier in the pleading) and negligently characterised those as LOCs. Finally, it was alleged there was negligent delay in delivering the Claimant.

In relation to causation the Claimant pleaded that delivery should have taken place by 00.46 which would have avoided all injury and in the alternative that delivery by any time before 01.03 would have made a material contribution to reduction in injury.

In August 2020, before service of the defence, the POC were amended to add the Secretary of State for Health as the 2nd Defendant, responsible for the relevant midwives.

In the defence dated September 2020 the breaches and causation were denied. In relation to causation the Defendants put the Claimant to proof that the Claimant’s brain damage was “indivisible” (and hence, had she been born earlier and found to have been materially less injured as a result of earlier delivery, the Claimant would recover the totality of her damages).

An amended defence was served on 20th December 2021 in which the Defendants changed their case on causation. It was admitted that if the Claimant had been born by 00.55 hours all injury would have been avoided. But the Defendants asserted that birth between 00.56 and 01.01 hours would have led to a reduction in the Claimant’s injuries which is assessable and apportionable in law and so damages should be apportioned between the non negligent brain damage and the negligently caused brain damage.

Various interlocutory orders were made and on the 26th of April 2022 Lambert J made an anonymity order. It is for that reason that I refer to the parents herein without using their names.

On the 9th of May 2022, at the start of the first trial, the Claimant disclosed a handwritten note by F purporting to be a record made in April 1996, two months after the Claimant’s birth which contained an account of the events that occurred during the Claimant’s birth. The Claimant wished to rely upon that note and by an order made on the 16th of May 2022 Lambert J adjourned the first trial and permitted the Claimant to rely on it. Permission was also granted to re-amend the POC. The Claimant’s solicitors admitted negligence in failing to disclose the relevant note and were ordered to pay the costs. Permission was granted for further witness statements from M and F and the Defendants’ witnesses.

The pleaded case for trial is set out in the Claimant’s re-amended POC dated 12th May 2022. I shall focus on the deletions and additions in the light of my summary above. In relation to ante-natal assertions, the previous allegation that the 1st Defendant failed to offer M an ECS was deleted. Instead the Claimant’s case changed to an allegation that the midwives failed to make arrangements for a discussion between the parents and an obstetrician about the birth plan despite being aware that M wished to have a CS. In addition it was asserted that on the 30th of January 1996 Doctor Dunlop should have discussed CS with M because it was a reasonable alternative treatment to NVD. The Claimant relied on the late disclosed handwritten note. The Claimant asserted that M understood from her discussions with the midwives antenatally that she would be able to have a CS. As evidence of that the parents asserted that at a meeting on the 18th of April 1996 with a consultant, Mrs Tonge, both the parents and the consultant saw a separate sheet of paper in the antenatal notes file which was a note by a midwife stating that M was to have a caesarean section. Mrs Tonge, it was asserted, commented on that note stating that the midwife had no authority to agree the birth plan or a CS.

In relation to the midwife visit on the 19th of January 1996 the assertion pleaded in the amended POC that the midwife told M that CS was not an option was deleted. In its place the Claimant asserted that the midwife stated that she agreed that M should have a CS because of her size.

In relation to the antenatal visit on the 30th of January 1996 the new assertion was that during a discussion between Doctor Dunlop and M the latter made clear she did not wish an ARM because it had been causative of her stillborn baby’s death. In response Doctor Dunlop told M she should have her waters broken rather than have a CS. M replied she would rather have a CS than have her waters broken. In response Doctor Dunlop “laughed”. The Claimant relied on the late disclosed note written by F in April 1996 and on a letter from her former solicitor’s file dated 2001- 2003 for this factual assertion. The Claimant pleaded out her reasons for M not wishing to have an ARM or an EA which related back to the 1981 and 1985 pregnancies. She also pleaded that her grandmother had given birth to twins, one of which was stillborn and the other of which died tragically at age 6 weeks.

A meeting on the 18th of April 1996 between the parents and Mrs Tonge was pleaded out.

The particulars of breach were re-amended so that the Claimant now asserted that the midwives failed to make arrangements for M to discuss the birth plan with a Doctor during the antenatal period, as they should have, because M had requested a CSMR. It was pleaded that an ECS should have been offered to M on the 30th of January 1996 but was not. It was asserted that a balanced discussion should have taken place between M and Doctor Dunlop involving 14 bullet points imported from a report by Mr Forbes which cover the benefits and risks of NVD using IOL compared to CS.

In relation to the assertions of negligence at the hospital the amendments focused on the assertion that the 1^st Defendant failed to transfer M to theatre at 00.25 when that was the only reasonable way forward. In addition the Claimant asserted that there was negligent delay in delivery and this was fleshed out so that it rested on the lack of adequate monitoring of the FHR after 00.40 when the CTG was removed and the delay of 13 minutes between induction of anaesthesia and birth.

In relation to causation the re-amended pleading fleshed out the assertion that causation was all or nothing, every minute counts and that even a short delay would have made a material contribution which should lead to a 100% recovery because the functional result of a few minutes of negligently caused acute PHI is indivisible from the total injury suffered.

In the re-amended defence dated July 2022 the Defendants pointed out the repeated alterations of the Claimant’s case in relation to the asserted facts, the inconsistencies in the Claimant’s parents’ various accounts and the inconsistencies between the video evidence and the note written by F in April 1996. The Defendants pleaded that in the draft POC the Claimant had not asserted any specific CSMR but in the re-amended POC the Claimant’s parents did assert that they had made a CSMR antenatally. The Defendants pleaded that in any event M had agreed to NVD and that was noted in the AN notes. In their re-amendments the Defendants pleaded there were no grounds to offer a CS whether due to the mother’s size or the fact of twins because she had already had two NVDs and she had expressed a preference for natural labour. The Defendants pleaded in relation to the 30th of January 1996 that M had agreed to a membrane sweep which had been done in the clinic by Doctor Dunlop. This would have followed a discussion about and consent for the procedure in the full knowledge that labour might commence naturally after the sweep. The Defendants pointed out this was inconsistent with M’s assertion that she was requesting a CS at the consultation. The Defendants pleaded that M agreed to IOL.

In relation to the assertion that there was a duty on the 1^st Defendant to offer M an ECS the 1^st Defendant relied on a Scottish decision to assert that there was no duty on the obstetricians to disclose or discuss alternatives that in the exercise of their professional judgment were not regarded as reasonable and the Defendants asserted that ECS was not a reasonable alternative birth plan/treatment.

In relation to labour and the discussions about the way forwards with Doctor Tristram during labour, the 1^st Defendant denied that CS was the only reasonable way forwards before Doctor Tristram left the room at 00.27 and asserted what she did was reasonable medical practice. The 1^st Defendant denied that M's legs were placed in stirrups without her consent and asserted that at 00.35, when M requested CS, the obstetrician went through a proper process of dialogue setting out the risks and benefits, she sought to persuade M that transfer to theatre and further assessment with a view to an ARM and then making a decision was the correct way forwards at that time in view of the fact that there was no bradycardia shown on the CTG and no evidence of significant fetal decelerations. The 1^st Defendant asserted that the obstetrician’s discussions with M were appropriate and that there was no unreasonable delay. The 1^st Defendant asserted that agreeing to CS in theatre was appropriate once M had rejected an ARM and an EA.

In relation to the allegations of negligence the Defendants pleaded that contrary to the Claimant’s assertion that she was not referred to a Doctor by the midwives after her request for a CS, M did in fact meet doctors and agreed with them for IOL. The Defendants denied that M ever made a CSMR and denied that the Defendants were required to offer an ECS on the 30th of January 1996. The Defendants asserted that the membrane sweep carried out on that date and the consent thereto was inconsistent with the factual assertions made by M. In relation to the alleged negligence in labour the 1^st Defendant denied that there was a mandatory requirement from an immediate transfer to theatre or for CS at 00.20 hours and asserted it was reasonable to wait for the Syntocinon to induce sufficient contractions to bring the Claimant’s head down into the pelvis. The 1^st Defendant relied on the lack of bradycardia or significant fetal decelerations on the CTG before 00.20 and the reassuring CTG between 00.20 and 00.41. The 1^st Defendant asserted that the fact that the Claimant was born within 23 minutes of transfer to theatre was a reasonable time frame.

In relation to causation by their amendments the Defendants admitted that if the Claimant had been born before 00.55 hours then all injury would have been avoided. However birth between 00.55 hours and 01.03 hours would have produced less but still divisible injury. The specific pleading at paragraph 56a and 56b was that if the Claimant had been delivered between 00.56 and 01.01 hours she would have sustained up to around only 5 minutes of acute PHI and would probably have been less functionally injured leading to well preserved communication and ability to manage self-care, well preserved cognition and mobility at scale GMFCS 2. In addition the Defendants pleaded that if the Claimant had been delivered after 01.01 and before 01.03 she would have been largely the same as she is now. Therefore the Defendants pleaded that the Claimant’s injury is divisible and acute PHI “would have caused incremental damage to the Claimant’s brain from around 00.56 hours” which is capable of being divided as set out above in 5 minute Aliquots.

I would not usually have extracted so many parts of the pleadings and chronologised them as I have above but in this case the Claimant’s case has altered so substantially over time that it was necessary to do so. In addition the Defendants altered their case on causation.

I heard evidence live from the following witnesses: M and F; Doctor Dunlop; Doctor Tristram; Mrs Tonge and Mr Porter.

I heard live evidence from:

I read evidence from:

The key documentary evidence was set out in the antenatal and the labour notes, the late disclosed note written by F in April 1996 and the file notes disclosed late by the Claimant from M’s previous solicitor’s files. The video with audio of the labour was also important evidence. I read letters from Mr Paul Shillito, a consultant paediatric neurologist who was not a witness but whose letter was served with the POC and both parties’ experts relied upon and Doctor Sarah Gregory, clinical Psychologist, dated 19 January 2012, who was not an expert called to give evidence but whose report was relied upon by the experts from both parties in evidence

Before I turn to the evidence I should introduce a note of caution. The events which this Court is dealing with occurred 26 years and 8 months ago. This being a clinical negligence case which occurred so long ago the evidence of the Defendants’ witnesses was mainly about what they considered was a fair and reasonable interpretation of their own notes (and those made by other clinicians) and what they “would have” done as normal practice back then, not what they could actually recall of the events.

In contrast the evidence of M and F was what they asserted they actually recalled, aided by the clinical notes, the video which they took between the birth of Bethany and of the Claimant and by looking at the recently re-found note made by F in April 1996 and some lawyers’ file notes made over the years.

I acknowledge that it is inherent in all traumatic birth cases that some events become more illuminated in the minds of parents due to the trauma. I also take into account that memory, being a human talent or function, is not perfect nor is it made of concrete. On the contrary it may be degraded by time, enhanced by emotion, refined by repetitious discussion or lost or buried in part or in whole. In addition it may be innocently reconstructed in part or in whole by discussion, events, emotion (for instance anger or sorrow) and time.

The Defendants have retained the medical notes. These included M’s notes from her earlier pregnancies in 1980, 1985 and 1990. The summary I set out below is in narrative form for ease of understanding of the events. It is made by interleaving the midwives’ notes with the obstetricians’ notes and relying on the clinicians’ explanations of the words and acronyms written. In this section I stick to the notes not any additional evidence given by the witnesses save for the meaning of words. The timings (which I will rule on later) are taken from the medical notes not the video.

In 1981 M had the misfortune to give birth to a stillborn baby at the Royal United Hospital Bath. The baby was described as anencephalic, meaning that part of the skull was missing. The birth was induced at 32 weeks. It was traumatic and lasted 26 hours. The baby was alive at the start of the process. During the process M was given an epidural which was ineffective as pain relief and noted as such. In addition she underwent an ARM. She was aged 21 at the time.

In January 1985 after an 8 and a half hour labour M gave birth to Brent, her son, who was born weighing 8 pounds, by NVD at the Royal United Hospital Bath. Her membranes were ruptured during the labour (ARM) and she had to have an episiotomy. In addition she suffered a retained placenta because her cervix was closing after the birth and she was taken to theatre, given a GA and her placenta was removed surgically.

In October 1990 M gave birth to her daughter Jessica by NVD at the Royal United Hospital Bath. The labour ward notes are clearly marked do not rupture membranes unless medically necessary. She also expressed a wish to use a birthing stool. Before this birth there was correspondence in which M insisted on delivery at Frome hospital instead of at Bath. Letters were exchanged in June and July 1990 setting out M's bad experiences at Bath hospital and her unhappiness at returning there. Mr. Porter, who was a consultant at the time, set out the pros and cons of birth in the local hospital compared to the larger facilities at Bath hospital but noted that M was adamant that she wanted a birth in Frome and noting that she would eventually do what she wanted. Interesting by September of 1990 the GP wrote back to Mr. Porter to say that M had changed her mind and accepted delivery at Bath. The notes show that when M was fully dilated ARM was used to deliver her live baby despite her earlier expressed concerns.

M had two other pregnancies, one was terminated in 1980 and she also suffered a miscarriage in 1994.

In 1995 M became pregnant again. The AN notes show that she attended meetings with midwives or doctors on 17 occasions before being admitted to hospital on Friday the 2nd of February 1996.

In four of those antenatal visits M saw obstetricians. For the other 13 visits M only saw midwives. At antenatal meetings with midwives on the 1st of May; 12th of July; 31st of August; 18th of September; 2nd and 6th of November 1995; there is nothing recorded which is relevant.

On the 30th of November 1995 M met a midwife and a registrar obstetrician called Doctor Robson. A birth plan was agreed. She was booked for the Royal United Hospital Bath for an NVD at term. The Doctor noted that the plan was to avoid IOL and that M preferred not to have an EA.

Further visits occurred on 4^th, 7^th, 13th and 21st December 1995 with midwives. On that last date M was listed to have her birth under a consultant called Mrs Tonge at the Princess Anne Wing of the Bath hospital. A further midwife appointment took place on the 4th of January 1996.

On the 9th of January 1996 M saw Doctor Tristram (obstetrician). She noted aches and pains and back ache. She noted that the Claimant needed to have a growth ultrasound scan. M requested a VE. Doctor Tristram noted the cervix was long, closed and posterior. She carried out an ultrasound scan noting the twins’ foetal heart rates and noting that the presenting twin was cephalic and the upper twin had an oblique lie. There was no note made during this meeting of any discussion of ECS or CSMR.

On the 16th of January 1996 M once again met Doctor Tristram. The notes show that M was tired, had swollen feet and hands and complained of reduced fetal movement last week and being fed up. The midwife was advised to cheque M’s blood pressure twice a week. The twins’ positions were noted as being cephalic. There was no note made during this meeting of any discussion of ECS or CSMR.

On the 19th of January 1996 a midwife carried out a home visit. The midwife noted that M would prefer a natural labour with no ARM or EA and noted that M had suffered previous problems with epidurals in a previous pregnancy. In addition the midwife noted that “if” M had a CS she would like to be sterilised. There was no note made during this meeting of any CSMR.

M attended further meetings for check-ups with midwives in January 1996 on the 20th, 21st, 22nd, 25th and 28th. From the 21st onwards she had been complaining of a rash on her body and was treated with a cream. There is no note in any of those meetings of CSMR or any discussion of CS.

On 30th of January 1996 M attended at Bath hospital and met Doctor Dunlop (obstetrician). The notes show that she was scanned and that both twins were presenting in a cephalic position. Doctor Dunlop noted a bad rash and carried out a VE noting the cervix to have “multiple OS”. She swept M’s membranes and noted that the plan was for IOL and the indications for that were twins at 38 weeks and maternal discomfort. There is no note of M requesting a CSMR or of any discussion of ECS.

On the 2nd of February 1996 M was admitted for induced labour as set out at the start of the labour ward notes. Under the comment section on the front sheet a midwife wrote “anxious about ARM and epidural. Problems last epidural. May have choice to labour without.” At 08.15 hours the notes show that the IOL procedure was explained and CTG was commenced. There is no note of M requesting a CS. The CTG was assessed as reactive at 09.25 but there were no contractions. By 14.30 hours M felt she was tightening and contractions were 1 in 5. By 14.35 the CTG was re-commenced and reactive traces were seen for both twins’ FHRs. Contractions were noted as 2 in 10. At 14.50 hours Prostin was inserted per vagina and the CTG was assessed. At 15.40 hours a deceleration was queried for both twins on the CTG with one definite LOC. Both traces were considered reactive by 16.10 with good variability and no decelerations. At 17.15 the CTG was noted as reactive with good variability. VE took place then M was sent to the labour ward by 19.45. By 21.30 M was noted as contracting strongly and both fetal heart rates were heard. VE showed the cervix at 3 centimetres dilated and 50% effaced and the lower baby’s presentation was cephalic. No membranes were felt so her waters had broken naturally. By 22.00 hours M was requesting an epidural and the anaesthetist was called. A VE was carried out and the cervix was 5 centimetres dilated and well applied. The anaesthetist arrived at 22.15 and made a note at 22.30 that M had had a bad epidural 10 years before and was not certain about it. The procedure was explained to her. Having tried to get the EA into position M was unable to arch her back forwards adequately to open the space for the needle. She was also unable to keep her back still enough for safe insertion. After two attempts EA was stopped. There was a discussion with M and she decided against further epidural and was awaiting Pethidine. This was given. By 00.01 Bethany was born by NVD.

The notes for the key one hour between midnight and 01.03am in the morning are summarised below. Those made by Doctor Tristram were made 2 hours after the event. It appears to me that she has taken her 5 minute intervals from the midwife’s notes which were made contemporaneously.

At 00.05 the midwife wrote that M was awaiting contractions because there were none. There was no matching obstetrician’s note. At 00.10 the midwife noted no contractions, Syntocinon infusion was commenced. The obstetrician noted minimal contractions, a cephalic lie and that Syntocinon was commenced.

At 00.15 the midwife noted Syntocinon was increased, the head was high, ultrasound was performed by Doctor Tristram and the baby was cephalic. Doctor Tristram’s note was that the presenting part remained high and ultrasound scan confirmed the lie was cephalic and Syntocinon was increased.

At 00.20 Doctor Tristram noted that she carried out a VE, the cervix was 8cm dilated, not well applied and the Claimant's head was not in the pelvis. The amount of Syntocinon was increased again. The midwife made no note at that time.

At 00.25 the midwife made a note that M was contracting well but there was no descent of the presenting part into the pelvis. M was pushing well but was very tired. Doctor Tristram made no note at that time.

At 00.30 the midwife noted that F was wanting M to be on all fours. M was unable to do so. She was trying to push in the lithotomy position and that there was no advance of the presenting part. At the same time Doctor Tristram made a note of a repeat VE. The baby’s head had still not descended into the pelvis, the cervix was seven centimetres dilated and very poorly applied. She wrote “would need ARM in theatre”. I should mention here that there was no note made by Doctor Tristram or the midwife of any discussion with either of the parents about the method of delivery at this time. The video however shows that CS was requested by F and I shall return to this later.

At 00.35 the midwife noted that Doctor Tristram had conversed with Mr Dunster and wrote “decision made to try ARM in theatre with possible procedure to “CS”. A note with the same timing was made by Doctor Tristram in which she wrote that she had had a discussion with Mr. Porter and Mr Dunster (Mr Dunster had phoned back whilst on the phone with Mr. Porter) and they had agreed for ARM in theatre because the head was still high. She also then wrote that the CTG remained satisfactory, baseline around 130, variable, some decelerations with contractions, and acceleration present.

Without providing any additional timing but written below and so probably chronologically after the phone call with the consultant, Doctor Tristram noted she had explained the situation to patient and her husband. The patient was noted as “requesting LSCS under GA”. She explained that maternal transfer to theatre and then reassessment would be best. This is the first note of M requesting a CS anywhere in the medical records and matches the midwife’s note. I should mention here that Doctor Tristram made no note of any discussion with the parents at this stage in relation to the risks and benefits of their request for CS or of consenting any procedure.

At 00.40 there is a note made by the midwife that M was wheeled round to theatre on a bed accompanied by a monitor. M was distressed with contractions. The FHR was measured with a Doppler monitor. No note was made by Doctor Tristram matching that timing.

At 00.45 the midwife noted M had been transferred onto the operating table. Doctor Tristram was keen to try ARM with the possibility of NVD but M and F were “not happy” and wanted CS. The FHR at that time was noted as 135 BPM. Doctor Tristram wrote a note with the same timing which stated that she re-examined M in theatre and the vertex was still high (above 3 centimetres above the spines) and that M had refused an ARM so Syntocinon was stopped. (The experts explained that it is pointless and counter productive to try to induce contractions using Syntocinon once the decision has been made to do a CS, the obstetrician would not want the baby descending any further whilst the CS was being done).

At 00.50 Doctor Tristram noted that she had had further discussion with the consultant, Mr Dunster and they had agreed to progress to CS. Subsequently and below that note she explained the plan to the patient that she agreed to carry out a CS but noted (by additional text squeezed in between the natural lines of the notes) that this would not be Doctor Tristram’s first option. Doctor Tristram noted the FHR in theatre was 135 BPM. What she did not do is make clear whether that was a further reading in theatre or that she was re-noting the reading noted by the midwife at 00.45. She went on to write she was “unable to record the fetal heart rate immediately prior to starting the caesarean section” and wrote “?” because of the baby’s position. She then wrote “as had just heard it and were ready to start operation proceeded” to CS. She then referred on to her own CS notes.

The midwife noted at 00.52 that Doctor Tristram had a discussion with a consultant and they agreed to go ahead with a CS. The “Venflon” was resited by the anaesthetist and she noted the FHR with a monitor “as Doppler” was 138 BPM.

The midwife noted that the Claimant was delivered by CS at 01.03. Doctor Tristram made no note in the labour ward notes of that. The operation notes which were on a different sheet noted that the cervical dilation was 7 cm, the cord was wrapped around the Claimant’s neck and that there was brisk bleeding from the uterine incision during the caesarean. She also wrote that there was “no obvious explanation found for the condition of twin” two at delivery.

The only other notes of relevance were the anaesthetist’s notes which showed that at 00.40 the premedication for anaesthetic was given. The anaesthetic chart showed that the MHR was 90 BMP at 00.50 and 00.55. They anaesthetist noted that delivery took place at 01.02 hours.

The signing of a consent form for the CS was not mentioned in either the midwives’ notes or Doctor Tristram’s notes. The form is untimed. However it was dated 3.2.1996 so it was probably signed after the birth of twin 1. It states that M consented to ARM/caesarean section. It was not signed by F. It was signed only by M.

After her birth the Claimant was found to be acidotic (acid build up due to hypoxia), asystolic (no heart beat), not respiring and to have APGAR scores of 1@1 and 3@5 and 3@10 and 3-4@20 and 4-6@ 60 minutes. The cord blood gasses were measured at pH 6.77. The neonatal notes recorded that the FHR became palpable and by 3 minutes 30 seconds when it reached over 100 BPM.

The neonatal discharge form described the CS as “an emergency CS” as did the discharge summary, the letter sent by the consultant paediatrician to the GP, Doctor Booth on 13.3.1996 and the special care nursery notes. Both obstetric experts advise that this term is used for all non elective CS procedures.

The special care nursery notes record that the Claimant’s parents were told that because the Claimant did not breathe until about 30 minutes she was likely to “die or be severely handicapped.” They found that traumatic.

By 1998 the paediatric notes show that the Claimant was crawling oddly, had 20 words, was eating well and normally and her bowels were normal. Her head circumference and length were below the 2^nd percentile. She was also dystonic. Occupational therapy provided the Claimant with a wheelchair in 1999. She was walking a little with a walker. By November 1999 the occupational therapist at Bath hospital described the Claimant as a “lovely little girl who understands instructions and has a well developed sense of humour.” She had received weekly physiotherapy. Her muscle tone was dystonic. She had mild athetoid features. She could sit and crawl but not normally. She could stand but only with support. She could use a walker to take a few steps. She needed regular physiotherapy to manage her gross motor development.

F videoed the period between the birth of Bethany and 00.34. A helpful transcription of the words spoken and events was provided by the parties. The timing on the video recorder had not been adjusted for winter so was one hour advanced. I have used actual timing below.

Doctor Tristram did an ultrasound at 00.08. She then did a VE at 00.17. She did a second VE at 00.20. At 00.26 Doctor Tristram had a conversation with the Claimant’s parents which went as follows.

“Have a rest, alright. This little chap here is not coming down, not within reach yet. Nearly half an hour you’ve had since that last twin was born and I think we ought to start thinking about alternatives if it's not going to come down this way.” someone then asked what sort of alternatives and Doctor Tristram replied “caesarean”. She went on to say “I'm not saying that's what you need and that's what we're definitely going to do but we ought to start thinking about...” I have carefully listened to the video with its audio and despite the audio being soft, by wearing headphones, I discern that F stated that they had thought that caesarean was necessary from the start. M responded that she wanted to sleep. Doctor Tristram then said that M should keep pushing for a couple more pushes and that she would have a word with her “boss” and “we'll slowly get things ready” (my emphasis). F then asked how long the Doctor could leave matters and M stated “no I don't want it left just get it out I've had enough now.” Doctor Tristram responded at 00.27 “well I mean babies happy in there but we can't leave it too long.” Doctor Tristram then left the labour suite room.

After Doctor Tristram left the room it is clear from the video that the midwife attempted to continue persuading M to push and F suggested that M should take up a position on her knees. The midwives then tried to put M's legs into stirrups. One of the attending midwives told M at 00.34 that M did not want a caesarean when she could push the baby out and M responded “yeah but I can't can I?” The video stopped at 00.34.

The CTG trace between the birth of Bethany at 00.01 hours and the end of that trace at 00.40 hours has two distinct parts to it. The first part for the first 10 minutes shows four substantial valleys. Those valleys drop away by well over 15 BMP from the baseline heartbeat which runs at between 130 and 140 BPM across the middle of the trace. The four valleys are at 3 to 5; 8.5 to 9; 14 and 16.5 to 17. There is also a peak at 19 to 20.

The second part from minute 20 to minute 40 contains a trace with a different pattern which bears no resemblance to the first 20 minutes when looked at using this judge’s (layperson’s) eye.

Underneath the FHR trace is the contemporaneous trace setting out the mother’s contractions and this shows that between 0 and 11 there were no contractions. Syntocinon was started at 10 and it is apparent that contractions are shown starting at about 14 and continuing thereafter. Expert interpretation of these traces was provided by the obstetricians.

Taking this in a chronological order I should start with F’s note written in April 1996 some two months after the birth. In evidence F and M asserted that F wrote the note and M read it and corrected a small part of it. In that note F wrote that the parents saw no consultant antenatally. In relation to the birth the parents complained that they were not told that induction would be painful. They recorded that M’s waters broke at about 9:00 o'clock (for twin 1) and the contractions became strong. The pain was so much that M requested an EA (despite her earlier expressed objection thereto) but only allowed to the clinicians “one try”. They complained that several attempts were made but that because M was only 5 foot 2 inches tall and had a fundus over 48 centimetres large there was no chance that she could arch her back sufficiently. They asserted that at that time they requested a CS. They were told that there were “no medical grounds for a caesarean section”. The way the note is written is confusing as to the timing for that asserted request because it goes on to explain the reason why they made the request was because of a historic retained placenta; exhaustion and the fact that M's cervix was closing. However the cervix was not closing at the time, it was closing after twin 1’s birth at a later time when CS was requested and recorded on the video (at 00.26 hours on 3.2.96). Quite the opposite was occurring at that time, the cervix was opening preparatory to the birth of the first twin. The note goes on then to deal with the birth of Bethany. It then recorded that the cervix was closing and the Claimant’s head was high and contractions were bad. The parents then asserted that CS was again requested (in fact one request is evidenced by the video: at 00.26.) F’s note records that the Doctor said that perhaps it would be time to consider CS and then left the room. The note records that after that M was taken to theatre but there was no FHR monitor taken with them. The note records that F was then excluded from the theatre. The questions the parents asked in the note were: (a) Why did it take so long before the CS? (b) How was the Claimant's heart rate monitored? (c) When was the last time the Claimant's heart was heard beating? The note went backwards in time to deal with the antenatal period and recorded that the parents had been told by the midwife in Frome weekly that they would need a CS. They asserted that all through her late pregnancy M had been told a CS was an option. They complained that having been told this it was not provided when she needed one. The note went on to deal with the AN meeting on the 30th of January 1996 and asserted that M had said to the Doctor that she did not want an ARM because it had stopped her previous pregnancy. The Doctor responded “you would rather have your waters broken than a caesarean section” and M responded “no I would rather have a caesarean section” and the Doctor laughed at M.

The Claimant has disclosed her Legal Aid Statement of Case dated 1999. In that it was asserted by the parents through their lawyers that three days before her delivery M indicated she wanted a CS. That assertion appears to relate to the 30th of January 1996. It matches the assertion made in F's April 1996 note. The Statement of Case went on to assert that M had been told by a midwife at Frome that she would have a CS at least for twin two. The Statement of Case asserted that M was admitted to hospital for an “induction”. The Statement of Case criticised the attending obstetrician as being a “junior doctor”. The parents alleged that during labour Doctor Tristram was out of the room for 15 to 20 minutes talking with her consultant before returning (in fact it was a minimum of 7 minutes according to the video which stopped at 00.34). They complained that M was taken to theatre for an ARM not a CS and that the monitor for the fetal heart rate was forgotten on the way. The lawyers sought legal aid on the grounds of the very long delay before the CS.

The Claimant has disclosed a solicitor’s note of a meeting with F made at an undated time around 2001 in which the parents accepted that M agreed to an IOL the week before the birth. F repeated the allegation that on the 30th of January 1996 M had told the Doctor she would rather have a CS but the Doctor ignored her. It repeated the assertion that M requested a CS after the failed EA attempt. F alleged that the midwives seemed to be making the decisions not the doctors.

M’s witness statement was signed in February 2021. It stood as her evidence in chief. Her evidence was that since the 1981 pregnancy, due to her lack of control she felt like she had been raped. She had always thought that the ineffective EA and the ARM in 1981 had killed her baby. In relation to the 1996 birth M recalled telling the community midwife at the GP surgery in Frome that she wanted a CS. She was 100% sure that the midwife wrote it in her notes. M attested in her witness statement that she did not see “a Doctor” throughout her pregnancy. She told the midwife she did not want an ARM or an EA. As for the attendance on the 30th of January 1996 M asserted the clinic was very busy and she had to wait a long time. She had a scan. The witness statement is wholly silent about the rest of that clinic attendance. It goes on to deal with attending the hospital for IOL on the 2nd of February 1996. M recalled telling the midwife after her arrival that she wanted a CS (this was not recorded in the notes). The response she recalled was the midwife saying “you've had babies before you'll be fine”. M recollected asking for an EA when the pain became bad and the EA failing (this matches the medical notes). M complained that there was no discussion during her pregnancy about the additional risks to the second twin. M asserted that she felt very let down by the choices made by the medical staff without her involvement. Jumping to the period after Bethany's birth M recalled the Doctor leaving the room and the midwives immediately putting her legs in stirrups. This was without her permission (this was recorded on the video). The witness statement finished with the assertion that if M had been given information about the risks associated with twins and modes of delivery she would have chosen CS. She repeated her assertion that she never had the opportunity to discuss CS “with a Doctor” and that she had told a midwife she wanted a CS but she never saw an obstetrician.

Having put the facts in chronological order above it is readily apparent that M's recollection of never seeing a Doctor or an obstetrician is not right. She saw Doctor Tristram twice and she saw Doctor Dunlop once and she also saw Doctor Robson. In evidence M admitted this.

In her second witness statement dated May 2022 M asserted that had she had a proper discussion with Doctor Dunlop on the 30th of January 1996 she would have wanted a CS. In her third witness statement dated the 12th of May 2022 M explained how F’s note of the April 1996 meeting had become lost in the handover between previous solicitors and her current lawyers and her move to New Zealand. She accepted that she probably read the note when it was written and certainly corrected one part of it. She explained her earlier witness statement. She asserted that when she had attested that she had not seen “a Doctor” what she meant was she had not seen “a consultant”.

M gave evidence over video link from New Zealand. In cross examination she accepted that during her two pregnancies after the traumatic stillbirth she did change her mind as a result of medical counselling on: (1) which hospital she would give birth in and (2) accepting an ARM despite her concerns, although M asserted she was not aware that ARM was used for her 1990 labour. When challenged on the lack of any note in the AN records of any request for a CSMR she relied on the note made on 19.1.1996 which stated: “If” M has CS she would like to be sterilised. In my judgment the use of the word “if” undermines her evidence that she requested CS for the birth of both twins. In addition the note records that M would “prefer natural childbirth” which is the opposite of CS. I do not accept M’s evidence on this.

M accepted that she agreed to NVD on 30.11.1995 to take place at Bath. When challenged on her assertion that she did not see a Doctor during her AN care she sought to distinguish between a Doctor and a consultant asserting that by using the word “Doctor” she meant “consultant”. I did not find that distinction persuasive. Later M explained that she did not know the difference between an SHO, a registrar and a consultant. She recognised doctors because they wore “white coats”. That evidence lacked credibility in my judgment. I find that she knew when she was meeting doctors in the antenatal period.

When challenged on the lack of any mention in her witness statement of her evidence of what happened on 19.1.1996, M explained that she had felt horrendous over the years since the birth and had not been prepared to think about it. Her recollection of the home visit on that date by the midwife was that the midwife sat on the carpet in her home and told her that “I feel you should have a CS” and wrote a note in the AN records. When challenged on paragraph 21 of the original POC M became tired (it was late at night in New Zealand). That paragraph contained the assertion that M was told CS was “not an option”. M asserted that she was told “CS was an option” but not by the people who mattered.

In relation to the AN clinic visit at Bath hospital on 30.1.1996 M accepted that during that clinic she agreed to NVD using IOL on Doctor Dunlop’s advice. When challenged about the lack of any assertion in her first witness statement that she requested a CS at that meeting M accepted her primary witness statement in support of the claim had omitted that assertion. She sought to explain that omission by her being not good at paperwork. In the light of the fact that M was represented by lawyers in February 2021 and that the POC had been served a year before, that omission was a serious gap in the Claimant’s case on a crucial factual issue pleaded in the served POC. M also accepted that she had a membrane sweep during that clinic. M could not explain how or why she would have agreed to that if she had requested CS and was determined to have CS despite the advice she had been given. M’s response was that she had two choices: natural labour or CS and she agreed to IOL. M said CS was not “offered” to her.

M was challenged about events on arrival at hospital. M asserted that she did ask for CS but the nurses said there was no “Doctor about”. When shown the draft POC from April 2018 in which the Claimant asserted that the plan on arrival was IOL M could not explain the conflict between her live evidence and the way the case was pleaded earlier. Defence counsel put to M that despite her concerns over EA clearly noted in the AN records she herself requested EA at 22.00 hours. M accepted that she had.

I found M to be a witness honestly doing her very best to recall events long ago with a memory which was degraded by trauma, strong emotion and time. Where her evidence conflicts with the medical notes I will generally prefer the medical notes. However in relation to the crucial meeting on 30.1.1996 I accept M’s evidence that a discussion of CS took place with Doctor Dunlop in the context of the doctor advising M against CS and in favour of natural child birth and that M accepted the advice to go for IOL and NVD and then consented to having a membrane sweep. My detailed findings of fact are below.

F is the Claimant’s litigation friend. For many of the 26 years during which the Claimant was seeking to bring a claim he carried the load because M was too hurt by the events to take any leading role.

F’s witness statement was dated February 2021. He asserted that M had told him during her pregnancy that she wanted a CS because she felt unable to deliver twins normally. He asserted the local midwife from Frome recorded this in AN notes on a separate sheet and he saw this himself and that Mrs Tonge saw this note at the April 1996 meeting. He was suspicious of how that page could have disappeared. He supported M in her assertion that she did not want an ARM or an EA. In relation to the Claimant’s birth he asserted that the Doctor scanned using ultrasound and was surprised how high the baby’s head was. He was not surprised because he had been told from the scan days before that the head was high. He recalled Doctor Tristram saying the cervix was closing. He remembered that M had “begged for” a CS because she was worn out. (If this is compared with the video recording in fact it was F who said they both wanted CS when M said she was tired and wanted the baby “out”). He asserted that when Doctor Tristram left the delivery room the midwife put M's legs in stirrups because the midwife did not wish to be defeated. He asserted that when M was being transferred to theatre the clinicians forgot the monitor. He asserted that Doctor Tristram had been away for 20 minutes for her first discussion with the consultant (starting at 00.27 on the video). He asserted that on his video there were times when the Claimant’s heartbeat was “not audible”. He was excluded from the theatre so could not give evidence about what happened there. He asserted that after the birth he heard somebody say they had a “bleeder”. This recollection is backed up by the evidence from Doctor Tristram who confirmed brisk bleeding did it take place when the uterus was opened.

In his second witness statement F relied on his handwritten note made prior to a meeting with Mrs Tonge in April 1996. In addition he asserted that he was present at the meeting with Doctor Dunlop on the 30th of January 1996 and that is why he wrote in the note that when M requested a CS rather than an ARM Doctor Dunlop laughed, because that is what he heard and saw.

In evidence F explained that M and F had separated 5 years ago. The Claimant is now living independently from her parents with carer support. As she approached the age of 21 she had wished the legal case to be pursued. F accepted he had reviewed the draft Particulars of Claim (POC) sent in April 2018. He accepted the draft POC contained no assertion of any request for a CS in the antenatal period or at any time in hospital before Doctor Tristram left the delivery room at 00.27 hours. He accepted the draft POC asserted that M entered hospital for an IOL. He stuck to the assertion that a midwife had said to M that M would be able to have a CS.

In cross examination he accepted that the factual assertion of M requesting a CS and being told it was “not an option” in paragraph 21 of the served POC was not true. F accepted that in the re-amended POC the assertion that a midwife told M that CS was not an option was deleted and instead the assertion was made that M asked for a CS and this request was written down on a separate piece of paper in the AN notes and subsequently has disappeared. He was not present at the 9^th or 19^th January 1996 check-ups. F was present at the 30.1.1996 clinic. He avoided the question put to him that the membranes sweep was consented to and would not have been consonant with a request for a CS but would be with a decision for IOL. F agreed that M had agreed to IOL for the birth plan. In relation to the video F asserted that he interpreted what he said just before Doctor Tristram left the room as specifically asking for a CS. F accepted that his written evidence that the earlier scan showed that the second twin was high was mistaken when he was shown the ultrasound report of that scan.

I found F to be an honest and deeply caring man who has been weighed down by the weight of the litigation for over 20 years and the separation from M. His recollection has changed over those years so that only a few parts of his memory remain undamaged. I find that the April 1996 note was his best recollection two months after the traumatic events of early February but I find that even that note is not wholly factually accurate.

Doctor Amanda Tristram gave evidence by video from New Zealand where by coincidence she also lives. She confirmed her witness statement dated September 2020. She is a consultant obstetrician and gynaecologist focussing on cancer. She qualified as a Doctor in 1991 and completed her specialist training in 2005. At the relevant time she was a senior house officer in Bath and from August 1995 she had worked on the registrar rota. She had two years of experience in obstetrics and gynaecology. She had six months experience acting as a registrar before the events.

Doctor Tristram had no recollection of the events but she had seen her medical notes and the parents’ video. Her evidence from her witness statement was as follows. She was the unsupervised registrar on duty on the relevant Saturday night. She wrote up her notes at 03.10 because she had needed to deal with other patients after completing the Claimant’s CS.

She first saw M at 23.55 hours on Saturday 2nd of February. She noted that the anaesthetist had been unable to site the EA. She noted the CTG trace as satisfactory for both twins. She noted the birth plan was NVD. The midwife delivered the first twin. Doctor Tristram was not involved with that.

At 00.10 she was waiting for renewed maternal contractions. The Claimant was lying in a cephalic position. She started Syntocinon to stimulate contractions. By 00.15 the presenting part was still high and she carried out an ultrasound to confirm the position was cephalic. She increased the Syntocinon. By 00.20 she carried out a VE and the cervix was 8 cm dilated, not well applied and the vertex was not in the pelvis. She again increased the Syntocinon to stimulate contractions. M was pushing. By 00.30 Doctor Tristram carried out a repeat VE and the vertex was still not descended into the pelvis (this timing is from the notes, I shall make findings on the timings later). The cervix was less dilated at 7 cm and poorly applied. She noted M would need an ARM in theatre and described this as her next step and her standard procedure in 1996.

Doctor Tristram then left the delivery room to talk to the consultant and went to the central station or the office a few seconds away and called Mr Dunster and then Mr. Porter and then Mr Dunster called back while she was speaking to Mr. Porter. Mr Dunster agreed with her recommendation for ARM in theatre. She explained that if there was any problem she could then do a CS. She wrote that the evidence was that the CTG trace was satisfactory. The baseline was around 130 bpm and was variable with some decelerations with contractions and accelerations. She then returned to the delivery suite and explained the situation to M & F and recommended an ARM. She accepted that the note recorded that M requested CS under GA. She explained that she “would have wanted to respect” M’s wishes but also would have wanted the best possible outcome and it was her view and the consultant’s view that ARM was the best way forward. ARM was more simple and likely to lead to a faster delivery than CS. Doctor Tristram asserted that an agreement was reached to transfer to theatre where she would reassess. The transfer took place and she did reassess at 00.45. The vertex was still high so intervention was required. NVD was not occurring. She discussed ARM again but M refused. She went and had a second discussion with Mr Dunster who agreed she should carry out a CS. She returned and told M that CS was not “their first option” but she agreed to the CS because M had refused ARM. In her witness statement she then stated that a consent form was signed after Doctor Tristram explained to M the operation and the risks. As I shall find below she changed her evidence on when the consent occurred. In addition her timings were wrong as the video showed. I also highlight here the approach taken by Doctor Tristram which was not to accept M’s request for a CS made in the delivery suite. Further the evidence on when the consent form was signed is wrong in my judgment. It cannot have been signed after M had refused ARM because the consent was expressly for ARM and CS.

Doctor Tristram wrote in her witness statement that the FHR was noted at 00.45 as 135 BPM. It was likely they used a hand held Doppler device with the midwife holding it. Explaining the surgical procedure Doctor Tristram wrote that she would have scrubbed up and the anaesthetist was present. Doctor Tristram was unable to record the FHR before starting the operation possibly due to the position of the baby, however the midwife recorded 138 BMP at 00.52 probably just after Doctor Tristram had tried. The baby was delivered at 01.02 according to Doctor Tristram (this timing must have been taken from the anaesthetic notes) and the cord was wrapped around the Claimant’s neck. Doctor Tristram wrote in the notes that there was no obvious explanation for the baby’s poor condition because the FHR monitoring did not indicate any problems. M had bled a lot and required transfusions. On the Sunday morning (the 4^th) Doctor Tristram saw M. She had suffered vomiting, distension, pain and ileus following the CS.

Doctor Tristram considered that she had acted without undue delay and that her decisions were supported by her consultant. On reflection she could see no reason to suspect fetal distress from the notes. In a second witness statement dated May 2022 Doctor Tristram explained that she had seen M twice antenatally on the 9th and the 16th of January 1996.

In live evidence, when challenged on her experience, Doctor Tristram considered that she had sufficient experience to deal with the birth of twins but accepted she was at the least experienced end of the scale. She had previously delivered many twins vaginally, some in the breech position. She accepted that the relevant events occurred at the weekend in the middle of the night when she was unsupervised and that it was a difficult delivery. When asked whether she had done a caesarean for a second twin’s birth before and in particular whether she had carried out an IPV (Internal Podalic Version) her evidence was that she probably would have done one unsupervised. She accepted that IPV had to be done with EA or GA. When asked about M's clearly expressed desire not to have an ARM Doctor Tristram explained the difference between a high ARM a low ARM. A low ARM is far easier and involves simply breaking the amniotic sac when the head is pressing on the cervix and low in the pelvis to facilitate birth. A high ARM with a second twin is more difficult and involves the insertion of a metal implement with a hook on it higher into the uterus to reach the high baby to break the amniotic sack. Then the obstetrician has to use her hand or fingers to control the release of the amniotic liquor so that it does not all come out in a flood leading to an unwanted change in position of the fetus or cord prolapse. Doctor Tristram therefore accepted that M’s desire not to have an ARM or an EA was a relevant factor to her labour plans. When questioned on the CTG trace she explained that the first marking of LOC at 00.04 was “an interpretation at the time” and she rejected this being a deceleration. When challenged about the sound that the CTG would have been making during the asserted deceleration Doctor Tristram could not answer. When shown the joint obstetric report which identified (on Mr Forbes’ evidence) decelerations on four occasions between midnight and 00.20 Doctor Tristram considered the first three asserted decelerations to be LOCs but accepted that the third asserted deceleration at 00.17 “might show deceleration”. She relied on what she thought was an acceleration at 00.19. When challenged to explain why she had not provided evidence in her witness statement in relation to the specific allegation of negligence set out in the POC that she had failed to recognise the decelerations in the FHR between midnight and 00.20 Doctor Tristram could not explain that. She considered that decelerations in the second stage of labour were not necessarily abnormal. She explained she was no longer practicing obstetrics and would not try and reinterpret the CTG now, so many years after the event. When challenged again on the audible nature of the alleged decelerations Doctor Tristram considered they were not necessarily matters for concern. Doctor Tristram accepted that because she had no concerns about the asserted decelerations she most likely would not have raised any concerns with the consultant.

I did not find Doctor Tristram’s evidence on the decelerations satisfactory. She herself had written they were decelerations in the notes and yet would not accept that they were in evidence.

Doctor Tristram considered that for twins the interval between the birth of twin one and twin two in 1996 was a relevant matter. If the second twin was not delivered after 30 minutes she considered she needed to do “something else”. She accepted that she was interested in the speed of the birth of the Claimant. She accepted that M’s cervix was closing, as shown by her two VE's, the Claimant’s head remained high and the clock was ticking. She agreed that by 00.20 there were only three medical options for delivery: spontaneous NVD, ARM and CS. She accepted that the situation had the potential to turn risky. She explained that there was a risk that she would have to carry out a high, controlled ARM.

Doctor Tristram did not explain in her witness statement the difference between a simple low ARM and a more difficult high controlled ARM. When pressed Doctor Tristram stated that she had probably not carried out a high controlled ARM for a second twin previously. But she explained that a high controlled ARM for a single baby was the same thing. Doctor Tristram accepted that she was in a novel and challenging situation with the second twin’s head high, the cervix contracting and the head not descending, which would be different from a birth of a single child.

When challenged that she had negligently failed to send M to theatre at 00.27 when she left to speak to the consultant for the first time she asserted that it was likely that she did speak to medical and nursing staff outside the delivery room to organise a transfer to theatre whilst she was out of the room. Doctor Tristram also stated in cross examination that the midwives inside the delivery room would not have known what was going on outside the delivery room and stated that there was no reason for her to tell the midwives what was going on before she left.

I did not find Doctor Tristram’s evidence on her actions before she left the delivery room at 00.27 satisfactory. The video shows she used the words “slowly” yet she sought to persuade the Court that she was aware of the need for speed. She did not tell the midwives to get ready for theatre before she left the room yet she sought to persuade the Court that she had decided to transfer M to theatre. Before she left F told her that the parents had always wanted CS but she did not discuss the parents’ wishes before she left the room, yet she was going to make a forward plan with her consultant. I find that she left with only half the story to get approval from her “boss” on the way forwards and without reference to the parents’ wishes.

The factual assertion which Doctor Tristram made for the first time in evidence about issuing instructions to prepare for theatre whilst she was out of the delivery suite was not in her witness statement, not in the medical notes and was not pleaded. In addition a tell tale against this evidence was that the video shows that the midwives in the delivery suite were continuing to persuade M to push and were putting M's legs into stirrups. This is not really consistent with Doctor Tristram’s asserted decision and instructions to transfer M to theatre. I consider that Doctor Tristram would have instructed the midwives to get ready to transfer to theatre if that was the plan that she was going to discuss with her consultant and did implement immediately that she left the room before she went to discuss it with Mr Dunster. On balance I do not accept Doctor Tristram’s evidence on this factual issue. I consider that Doctor Tristram believed when giving evidence that she had to fill in a gap and that she did so.

Doctor Tristram could not recall the conversation with Mr Dunster. It was put to her that she did not tell Mr Dunster that M had chosen to have no ARM and no EA. All Doctor Tristram could say is that she would have expected to have told him that. She accepted that the video showed that there was no discussion of the risks and benefits of the birth alternatives (NVD, ARM or CS) with M or F before she left to have the discussion with the consultant. There was no discussion of the increased difficulty of NVD in the light of M’s aversion to ARM and the absence of EA. Doctor Tristram explained that she wished to discuss the alternatives with the consultant first before discussing them with M. It was put to Doctor Tristram that she initiated a plan with the consultant without having first discussed it with M and therefore she could not pass on M’s wishes to the consultant to feed into the discussion. She accepted it would certainly have been relevant to tell the consultant of M’s wishes. She accepted that if she had discussed matters with M and F and sought their choices or wishes before 00.27 then she would have passed on M’s wishes to the consultant in the discussion. It was put to Doctor Tristram that matters were delayed because she had failed to consult with M before deciding the birth plan with the consultant. I was unimpressed with her answers.

In relation to events in theatre Doctor Tristram did not recall or know from the notes what was happening between 00.45 and 00.52. She did carry out a reassessment by VE in theatre but that would not have taken long. The snapshot FHR reading of 138 BPM would have been taken by the midwife. No CTG was attached. She did not know how long the phone call to Mr Dunster would have taken. Doctor Tristram accepted that there was a continuing risk to the baby because she was not being monitored by CTG. She accepted that the baby had been unmonitored since 00.40 hours. She did not accept that there was no information about the FHR. Doctor Tristram relied on the Doppler FHR readings. When challenged by Claimant’s counsel to the effect that she did not know what was going on with the FHR after the CTG was removed and only had “snapshots” her response was unnecessarily combative. When asked whether she would have done things differently if she had known that the FHR from around 00.46 was bradycardic Doctor Tristram's response was she “might have done things faster”. She accepted that it could have taken 6 minutes from induction of anaesthetic to birth. She accepted that in this case 13 minutes from induction of anaesthetic to birth was “longer than normal”. She explained that there was significant blood loss on opening the uterus which may have delayed her because she needed to see what she was doing.

Doctor Tristram was challenged to explain the insertion of a line and a half of handwriting in her medical notes (made at 03.10) by which she had written that CS was agreed but that her preference was for ARM. She did not agree that this was written to appear that she had made a concession to do a CS at M’s request.

In re-examination Doctor Tristram stated that the deceleration at 00.16 - 00.17 was probably a deceleration but considered that it was not concerning because there was a subsequent acceleration. Doctor Tristram explained the conversation with the parents after the second VE but before she left the delivery suite. She was hoping the baby's head would come down, Syntocinon had only been turned up to its maximum level for a short period of time, she was not worried and there was no “massive panic” to get the baby out. She explained that a conversation at that time with M might have taken quite a long time because someone who refuses treatment needs full explanations of the consequences.

Doctor Tristram explained the FHR readings taken in theatre. The Doppler hand held device makes an audible noise. She said it should not be difficult to find the FHR with it. She could not explain how the FHR could have been 135 and 138 BPM in theatre when the baby had suffered severe brain damage and so was probably in bradycardia at that time. She indicated that the consent form was probably signed in the delivery suite not in theatre (contradicting her earlier evidence).

My assessment of Doctor Tristram is that she is a highly intelligent, well motivated and professional person who was trying to assist the Court but who felt vulnerable over the long time it took to elicit and accord with M’s and F’s requests for a CS and her decision to aim for ARM despite the clear request for CS evidenced by the video and the notes. She was also defensive on timing and filled in a crucial gap on the timing of the instructions she gave to go to theatre in a way which disclosed her own disquiet about it.

Doctor Dunlop. Doctor Dunlop is a retired consultant obstetrician and gynaecologist. She confirmed the contents of her witness statement dated January 2021. She worked at the RUH in Bath from 2001 initially as a locum and then as a consultant from 2002. She had no independent recollection of events. In relation to the antenatal appointment on the 30th of January 1996 she stated that obstetricians at the hospital would not routinely have offered ECS for twins without a clinical reason for doing so: for instance the twins heads not being in a cephalic position or a previous CS. However M’s twins were head down and M had not had a previous CS. She asserted there was no discussion of CS in the antenatal records. She asserted that if M had asked a midwife for a CS it would have been routine practice to record this request and M would definitely have been seen by a Doctor for discussion. She asserted that if M had asked her for a CSMR during the clinic with her she would have noted it. Likewise if M had refused IOL she would have noted that. If M had requested CSMR Doctor Dunlop asserted she would certainly have discussed this and how she wanted to be managed. After discussion if M still wanted a CSMR Doctor Dunlop would have discussed this with Mrs Tonge and if Mrs Tonge had been in agreement Doctor Dunlop would have booked M for that procedure and not for IOL.

In her second witness statement dated May 2022 Doctor Dunlop dealt with the Claimant’s allegation that ECS should have been offered. She pointed out Doctor Robson's note made on 30.11.1995 which recorded the plan was NVD but to avoid IOL and that M preferred no EA. She went on to comment further on the clinic visit on 30th January 1996. She raised the fact that she carried out a VE and a sweep of the membranes. She asserted she would have obtained consent for the procedures. These could have brought on labour imminently so Doctor Dunlop considered that M must have been keen to deliver normally. She asserted that she may have said it was necessary to break the membranes of twin two. She denied that it was unreasonable not to offer ECS. She relied on the fact that M had said she wished minimal intervention and had previously had NVDs. She denied that M had raised CSMR but reasserted that if M had done so Doctor Dunlop would have encouraged induction instead.

In her third witness statement dated June 2022 Doctor Dunlop further amplified the visit on the 30th of January 1996 asserting that a chaperone would have been present for the membrane sweep. She asserted that M did not have to deliver at 38 weeks but that the rash made M ready to deliver. The IOL was booked for three days later. She denied laughing at M and asserted that she never laughed at patients. She asserted the midwife who must have been present would have complained had she done so. She made a new assertion that if M had requested CS she would have asked M to see Mrs Tonge.

In her live evidence Doctor Dunlop accepted that Mrs Tonge always offered delivery at 38 weeks for twins. She accepted that in 1996 her notes were much shorter than they were later in her practice. She could not recall whether she was aware of the entry dated 19th January 1996 which recorded that M wished no ARM or EA and which was underlined with asterisks. She expected that she had read it. She accepted it was unusual to see asterisks. She asserted she would have discussed induction with M and explained using Prostaglandin. When asked why she did not raise ARM she suggested she might have done. When asked why she made no note of doing so she replied that neither refusal of ARM or EA was a reason not to do an induction. She asserted that if M had asked for CS she would have referred M to Mrs Tonge. She stated that 1996 she would have counselled M to have an induction. In relation to the F’s note dated April 1996 and the assertion that all through the antenatal period M had been told that CS was an option Doctor Dunlop accepted this as likely. She asserted that if M had raised with midwives that she wanted a CS the midwives would have noted it and there would have been a discussion with obstetricians. She asserted that CS was not the preferred birth route and that it was regarded as a consultant decision. Claimant’s counsel asked whether Doctor Dunlop would have noted M’s request for a CSMR if after counselling by Doctor Dunlop M had eventually agreed to an IOL. Doctor Dunlop was not sure what she would have done in those circumstances. When asked if M had said she did not wish and ARM would she have noted that, she struggled to answer but eventually stated that the notes had already recorded M did not wish an ARM but it was possible that she would not have written that down. Questioned on why her note made no mention of M’s previously noted aversion to ARM and EA she gave evidence that they may have discussed that and she may have persuaded M and reassured her. NVD was the normal method for a mother with twins who had previously had normal vaginal deliveries. In relation to the risks for the second twin Doctor Dunlop accepted that IPV would possibly be needed and stated she had done those as an SHO mainly with epidurals. She accepted IPV is difficult and that GA might be necessary. She accepted that ARM was a standard procedure involved in IOL. When it was put to Doctor Dunlop that if M did not want an ARM or an EA that would merit discussion in the context of induced labour Doctor Dunlop agreed. She accepted that it was possible that M raised not wanting ARM or EA and she had failed to write it down. She explained that she believed NVD with minimal intervention was what M wanted. When pressed on whether she had said “you would rather have your waters broken than a CS” Doctor Dunlop denied that that was the sort of language she would have used. She asserted she did not think they had discussed CS but if it had been raised she would have reassured M, explained the plan for IOL and if M agreed then she would have proceeded. Doctor Dunlop denied laughing at M during any discussion in relation to CS. She explained that the only reason to do a membrane sweep was to induce labour. Doctor Dunlop accepted that if she had discussed CS the discussion would have covered points 1 to 8 on the 14 point list in Mr Forbes’ report. She did not think that she would have discussed points 10 to 14 (points 10-14 relate to CS and the risk and benefits compared to NVD). She asserted that she could have said that it would be better to avoid a CS if they could. She repeated that she would not have offered ECS in the advice she would have given about IOL and labour. If it had been raised she would have counselled against it and would have wanted a discussion with Mrs Tonge.

In re examination Doctor Dunlop pointed out that the only entry in the AN records about CS used the word “if” in relation to CS. In relation to the 30th of January 1996 Doctor Dunlop stated that at the end of the consultation they had a plan for IOL but if M had been unhappy about the plan or still talking of CSMR she would have booked M to come to hospital at 38 weeks and arranged for her to see a consultant that day to discuss CS. Under further questioning from Claimant’s counsel Doctor Dunlop accepted that it was common practice to use ARM and EA for twins in particular for the second twin during induction of labour.

I was impressed by Doctor Dunlop as an honest witness doing her best to assist the Court in what she probably would have done 26 years ago. However she accepted that her note taking back then was not full and in cross examination accepted that quite a lot of what she may have discussed with M would not have been noted. This means that on the key factual issue relating to 30.1.1996 I will need to infer what what was said about CS if I accept the parents’ evidence that they did raise it with her.

Mr Richard Porter was the director of maternity services at Bath hospital in 1996 and had been so since 1991. He he is a consultant obstetrician and gynaecologist. He confirmed his witness statement dated February 2021. In 1996 none of the consultants at Bath hospital would offer ECS for twins unless there was a medical reason to do so and there was no reason to do so for M. He stated that if M has asked a Doctor for CSMR she would have been counselled in relation to the benefits and the risks and the doctors would have expressed a strong preference for NVD. If M had persisted Mr Porter said the hospital would have agreed.

In his live evidence he pointed out that at Bath they had considerably fewer staff per birth than at Bristol. They created acting registrars to assist. He accepted that Doctor Tristram had a challenging role at the weekend unsupervised with her experience. In relation to the involvement he had with M’s 1990 birth he gave evidence that the hospital and the local GPs had a trigger list for birth at Bath hospital rather than locally. He would have allowed M to choose but would have advised her in 1990 to have her birth at Bath and she had eventually agreed to do so.

Mr Porter was not asked what he would have advised on the phone at night on 3.2.1996 during the conversation he was involved in with Mr Dunster and Doctor Tristram if Doctor Tristram had disclosed to them M’s objections to ARM and EA and the parents’ desire for a CS which F expressed around 00.26 hours just before the discussion.

Mr Dunster was the consultant on call on 3.2.1996. He has sadly passed away. His witness statement was signed in May 2020. He could not recall the events. He read the notes and the pleaded allegations. He says he would have come into the hospital had Doctor Tristram asked him to. He considered Doctor Tristram to be a very competent Doctor. He says that his advice in the phone call would “immediately have been to perform ARM accelerating delivery”. He would have expected the baby to have been born within 10-15 minutes after ARM. He would have expected that to have taken place in theatre so that with a high baby if there was change of presentation or cord prolapse a CS could be performed. He stated that he would not have advised CS because ARM would have been more likely to have triggered delivery faster and would have avoided the risks of emergency CS for M. He also stated that if he had been told about M’s aversion to ARM he would not have changed his view because no mother in his experience had previously refused ARM in favour of CS.

Importantly in my judgment he was not asked or did not give evidence in his witness statement about what he would have advised had he been informed by Doctor Tristram that EA had been tried and had failed, that M objected to ARM and importantly that M and F had chosen a CS. So with the baby high in the uterus, an ARM in theatre would have involved a high controlled procedure, not a low easy procedure and would have involved the risk of the need for Doctor Tristram to perform an IPV which would have had to be done under GA because EA was not an option. I consider those oversights to be relevant as I shall explain below.

Mrs Tonge is a retired consultant obstetrician and gynaecologist who worked at the RUH in Bath until 2012. She confirmed her witness statement dated July 2022. She had no clear recollection of events. In relation to the meeting with the parents in April 1996 she said she would usually have made notes and written to the GP and that it was odd that no notes of this meeting had been found. She noted the doctors in her clinic had seen M on the 9th, 16th and 30th of January 1996. She accepted that by definition a twin pregnancy was a high risk pregnancy. She noted that M had previously had successful vaginal deliveries and she asserted that there was no mandatory reason for a consultant to see her in the antenatal clinic. She accepted that short stature was an additional risk particularly when carrying twins. In relation to the allegation that ECS should have been offered antenatally or later she considered that there was no reason to offer ECS. However if M had asked for CSMR the standard practice was to refer M to Mrs Tonge and she would have counselled her against CS. She would have counselled that there was no reason to think NVD would not be successful. As to M’s concerns about ARM and EA, Mrs Tonge considered that these would not have altered the plan for NVD. Mrs Tonge noted that the AN records showed that M wanted natural birth. In relation to Doctor Dunlop's clinic on the 30th of January 1996 Mrs Tonge would have expected Doctor Dunlop to have noted any request for CSMR and have referred M to her for discussion. Mrs Tonge considered Doctor Dunlop to have been meticulous. In her witness statement Mrs Tonge asserted that if M had been referred to her for discussion on CSMR it is unlikely she would have agreed to CS “there and then”. She accepted that a proper discussion would have included most of the bullet points set out in Mr Forbes’ report. She might have mentioned that it was not infrequent to manipulate the second twin to get a longitudinal lie. She asserted that if, after discussions with M, she still wanted CSMR she would have referred M on to a different consultant for a second opinion. In relation to the April 1996 meeting with the parents Mrs Tonge stated it would have been very unusual for a midwife to record a request for a CS on a separate sheet and she thinks she would have said that a midwife would have had no authority to grant such a request. She asserted that if M had raised with her concerns about EA she would have referred M onto anaesthetist for a discussion about EA. Obstetricians were not qualified to have that discussion. She denied ever having been investigated for misconduct.

In her live evidence Mrs Tonge informed the Court that there was a morbidity meeting at which the Claimant’s birth was discussed. No notes of that meeting were made. However she read a note recording that the parents made complaints in May 1996 that they were dissatisfied about the failure of Doctor Tristram to carry out the CS earlier and to counsel them properly. She accepted that birth plan counselling had changed since 1996. She would have counselled for NVD not CS. She could not have offered ECS. However if M really wanted CSMR she could have had CS after having to pass through quite a few counselling hoops. She accepted that the approach was more “paternalistic back then” and that the attitude was that it was best for patients to conform to the Doctor’s advice. However if a patient was stubborn or persistent in wanting CSMR she would have referred the patient on for a second opinion but if the mother persisted she would eventually have agreed. Mrs Tonge accepted that in 1996 “women did not have the same degree of choice”. Mrs Tonge was as certain as she could be that M would have been counselled in clinic about NVD and IOL but not ECS unless she had asked for a CSMR.

On the April 1996 meeting in evidence Mrs Tonge accepted that pieces of paper were occasionally put into the AN notes by stapling.

Mrs Tonge also said that the front sheet of the labour ward notes may have been written by M’s midwife (Margaret) to ensure the hospital were aware of M’s concerns over ARM and EA. In relation to counselling for IOL and NVD the obstetrician would have had to discuss M’s aversion to ARM and EA and send M to see an anaesthetist for discussion about the EA issue. She also said that if M had been sent for a second opinion it would have been to Mr Porter.

Assessment of the Defendant’s witnesses. I was impressed by the honesty and professionalism of the Defendants’ witnesses who I consider were doing their very best to assist the Court. As I have noted above their evidence mainly consisted of what they would have said or done because 26 years have passed since the events. What came through strongly was that the department led by Mr Porter was hierachical and had a standard approach and that was not to offer ECS to mothers with twins which were cephalic and healthy where the mother had previously given birth by NVD. As for Doctor Tristram’s evidence, I shall return to that below.

Mr Forbes is a consultant obstetrician and gynaecologist who gave evidence in support of the Claimant’s case. His report was dated May 2021. After 10 years as an obstetrician in the RAF he was then a consultant at Hitchingbrooke hospital between 1991 and 2010. Between 2010 and 2018 he was a consultant uro-gynaecologist at Addenbrooke's Hospital in Cambridge. Then he retired although he continued medico-legal work and some private practice.

In his report he advised that it was standard practice in 1996 for twins to be born by NVD often with an EA. The EA was used inter alia to facilitate internal manoeuvring of the twins particularly twin two. Therefore M’s refusal to have an ARM and an EA should have resulted in a formal discussion with the obstetricians about the management plan. The risk of death for twin two was four times as large as the risk for twin one. He asserted in his report that the CS rate was over 60% for twins and he also advised that the CS rate where twin 1 is delivered by NVD was 10% for twin 2. He advised that in 1996 there was no good evidence that ECS carried significant benefits over NVD in twin pregnancies. He advised that even without a maternal request for CS (CSMR) and without maternal aversion to ARM and EA there should still have been a balanced discussion about NVD and ECS (paragraph 31), however in the next paragraph he said that he had thought long and hard about whether in 1996 he would have brought up the subject of ECS in discussion with a mother carrying twins. He answered his own question by stating that he was not sure he would have offered ECS as an alternative management option. He went on to advise that if M had brought up CS (so CSMR) he would have entered a balanced discussion of the risks and benefits of NVD and CSMR.

He found this practice troubling in retrospect in the light of the Supreme Court’s judgment in Montgomery v Lanarkshire Health Board [2015] UKSC11, because it would mean that a full discussion would only take place with a mother who was proactive and not with a mother who was passive. He found that result to be inconsistent and impossible to reconcile with good medical practice.

Mr Forbes advised that in the case of M there were two additional relevant factors: an aversion to ARM and to EA, so a discussion should have been instigated in clinic on the 30th of January 1996 by Doctor Dunlop about the relative merits of NVD and ECS. He set out 14 bullet points in his report that should have been included in such a discussion which covered: that the Doctor would anticipate NVD with cephalic twins; that induction of labour at 38 weeks would be offered due to the discomfort caused by M's rash; induction would probably involve Prostin; induction would probably involve ARM and Oxytocin; EA would normally be recommended; if twin 1 is delivered by NVD the clinician would check twin 2’s position; further Oxytocin might be needed for twin 2; ARM would normally be used for twin 2 when the head had descended into the pelvis; if twin 2 did not descend a vacuum extractor or CS might be used; the advantage of NVD would be avoiding a CS; the advantage of CS for both twins would be that it removed the doubts about the delivery of twin 2; the disadvantage of NVD would be the inability to guarantee normal delivery of both twins; the disadvantages of CS would be the need for GA and the slightly increased risk of excessive bleeding, infection and clots in the legs or lungs (points 1-8 concerned NVD, point 9-14 concerned CS).

In relation to the actual labour Mr Forbes noted that despite the use of Oxytocin M's cervix was closing because of lack of pressure from the fetal head. He questioned whether Doctor Tristram was sufficiently experienced to deal with the situation unsupervised. He advised that lack of supervision was not uncommon in 1996 for out of hours obstetrics. He relied on a book on labour written by O'Connor which advised that a consultant or senior registrar was required to be present at the delivery of twins.

He advised that at 00.20 hours Doctor Tristram was negligent to fail to arrange for M to be transferred to theatre just as she was leaving the delivery room and going to have a discussion with the consultant. This was because the Claimant’s head was high in the pelvis, the cervix was closing and M did not wish an ARM or an EA and so there were foreseeable risks emerging which required theatre. At that time there were only two realistic options. Both in Mr Forbes’ opinion were medically reasonable: ARM in theatre or CS under GA. M had made it clear she did not want to ARM and EA had failed so these facts needed to be discussed with the consultant in a balanced way and with M who needed to be given an informed choice. He noted that the clinicians had no suspicion of fetal compromise although he asserted the clinician should have been suspicious at that time. He advised that the traditional interval between the birth of twins was viewed as no more than 30 minutes. He helpfully referred to the advice in various textbooks in relation to the intertwin interval. Myles on “Midwifery” (1989) recommended to midwives an interval of no more than 15-20 minutes (although the 1999 edition advised a 45 minute maximum interval). In the 1994 book by James on “High Risk Obstetrics” no intertwin interval limit was mentioned. In O'Connor's book published in 1996 the editors advised delivery preferably in under 15 minutes and certainly not more than 30 minutes but stated there was no good evidence in support of this view. In Taylor and Fisk's book published in 2000 they advised expedition after 30 minutes.

Mr Forbes gave the opinion that delivery should have been expedited after 30 minutes. He noted that most books discouraged ARM for a second twin which is lying high. Ventouse was not an option. He advised that M would not have been able to tolerate internal manoeuvres without an EA. He advised it was unrealistic to expect ARM to lead to descent and delivery and he questioned whether Mr Dunster was made aware of all of these facts. Mr Forbes advised that all reasonable obstetricians would certainly have offered CS at around 00.25 hours to this mother who did not wish ARM or EA, whose baby had not descended into the pelvis and whose cervix was contracting.

In relation to the CTG Mr Forbes advised the Court that the fetal monitoring by Doctor Tristram was inadequate. Decelerations were inappropriately labelled as “LOCs” and there was a misplaced lack of concern about the fetal condition. He identified decelerations at 00.05, 00.09 and a late and prolonged deceleration at 00.16-00.17.

Mr Forbes noted that the FHR after 00.20 was probably in fact the MHR and had better variability and accelerations with contractions. He advised that it was not a breach of duty to have failed to appreciate that the CTG was picking up the MHR after 00.20.

He noted that at 00.52 the FHR was 135 BPM which was inconsistent with the MHR recorded on the anaesthetic chart.

In relation to the time taken between induction of anaesthetic and delivery of the Claimant Mr Forbes advised that 13 minutes was far longer than was acceptable. He considered that the incision should have been made before 00.55 and the delivery by 00.58 given that there was urgency to complete the delivery of twin 2. Mr Forbes proposed a reasonable timeline as follows:

He pointed out that M’s witness evidence was inconsistent in that she had forgotten she had seen doctors in the antenatal period. He disagreed with Doctor Tristram’s witness statement where she said there had been no evidence of fetal distress. He criticised Mr Dunster for failing to be present to supervise the birth of the twins and over the decision to allow NVD to progress with the use of ARM which Mr Forbes considered was not supportable when twin 2’s head was high and the cervix was closing. In relation to Mr Porter’s witness statement he disagreed with the opinion that there was no obstetric indication for CS in this case.

Medical texts provided by Mr Forbes. Samra et al published an article in the British Journal of Obstetrics and Gynaecology 1990 called “Caesarean Section for Twin Births”. The authors noted that vaginal birth for the first twin was no guarantee of safe passage for the second twin. Malposition and malpresentation of the second twin was a frequent occurrence. They noted that there is an increased risk of CS if the birth of the second twin is not managed appropriately and skilfully with an increasing trend in CS for the second twin. The paper was on a study covering 510 twin pregnancies. 184 (36%) were delivered by CS. 22 (4.3%) involved twin one being born by NVD and twin two by CS (combined method). Of the 22 combined method deliveries 21 were managed by registrars for the delivery of the second twin. In discussion the authors noted the indications for CS for second twins included: contracting cervix, lack of response to Oxytocin, uterine rupture, fetal distress, cord prolapse and transverse lie or high positioning. Interestingly the interval between births was recorded for the 22 combined method births and only three intervals were over 60 minutes: 61, 68 and 81 minutes. Most of the others lay between 20 minutes and 50 minutes.

D.K. James and others published the book High Risk Pregnancy Management Options in 1995. They wrote that the optimal mode of delivery in multiple pregnancies remained controversial. The mode of delivery is influenced by the presentation of the babies. Most obstetricians would recommend NVD for vertex-vertex babies. They advised that at least one experienced obstetrician, an anaesthetist, a paediatrician and a neonatal nurse should be in attendance for twin deliveries. After the NVD of the first twin they advised that an experienced obstetrician should assess the lie of the second twin which should be corrected to longitudinal either by external or internal version. Useful diagrams of Internal Podalic Version were provided.

O'Connor and others wrote a book in 1996 called the Progress in Obstetrics and Gynaecology. They noted that twin pregnancies are associated with four to fivefold increase in perinatal mortality compared with singletons. They noted that many authorities had advocated delivery by CS relying on papers by Taylor published in 1976 and another at footnote 8 from 1987 which I cannot read. They noted that since the mid 1970s there had been a dramatic increase in CS for twin deliveries. Taylor et al in 1976 had recommended CS for deliveries not presenting by the vertex. Others took an opposite view. O'Connor advised that the accepted view for many years had been that the birth to birth delivery interval should be less than 15 minutes and certainly not more than 30 minutes because of the risks of diminished placental perfusion after the birth of the first twin but O'Connor recited a study by Rayburn et al from 1984 and others and summarised these to show that perinatal mortality does not significantly increase with an increased delivery interval assuming adequate fetal monitoring. In a table summarising reports of CS as the birth method for twins at various hospitals the highest percentage was 15.5% and the lowest percentage was approximately 1%. The majority lay between 2% and 9%. In their conclusions the editors that advised that twins should be delivered in a fully equipped hospital and the mode of delivery should be based upon the presentation. Vertex-vertex babies should be allowed a trial of labour. CS may be advisable if there is any concern regarding fetal well-being in labour. They advised it is important to discuss the labour and delivery with the parents during the antenatal period explaining the need to monitor the twins carefully and the advantages of EA for the second twin and advising that if the FHR of the second twin becomes abnormal during the first stage of labour, delivery should be expedited by CS. They advised that, apart from a midwife, two obstetricians should be present if possible one of whom is experienced. They bemoaned how many registrars were left “out of hours” to deal with twin deliveries. They advised it was imperative and that an anaesthetist and paediatrician are also present. They advised that if twin 2’s lie was longitudinal and the presentation cephalic obstetricians should wait until the head descends into the pelvis and perform ARM during a contraction. Then a Copeland clip should be applied to the vertex to ensure good FHR monitoring. They advised that NVD of twins remains a satisfying obstetric art.

Williams et al wrote the book Managing Obstetrics 20th edition published in 1997. The editors summarised that the birth to birth interval between twins was commonly cited to be safest if less than 30 minutes but relied on the Rayburn study in 1984 to conclude that if continuous FHR was employed good outcomes would be achieved if the interval was longer. The editors summarised that NVD was the appropriate plan for cephalic-cephalic twins. Internal Podalic Version involved ARM and then manipulation of the baby’s body manually by the obstetrician in the uterus.

Taylor and Fisk published an article in October 2000 in the Obstetrician and Gynaecologist called “Multiple pregnancies”. They advised that the risk per pregnancy of producing a child with cerebral palsy is eight times greater in twin pregnancies than single pregnancies. In relation to mode of delivery they noted that in the UK the CS rate for twins had increased from 28% in the first five years of the 1980s to 42% in 1995 -1996. They advised that mode of delivery was decided on standard principles based on the presentation of the first twin, fetal growth and well-being. They advised that vaginal delivery was the preferred option in vertex-vertex presentations. They advised that women who had had a previous CS would best be delivered by repeat CS because of the greater risk of scar rupture. They advised that EA is recommended in all twin pregnancies delivering by NVD to facilitate intrauterine manoeuvres for delivery of the second twin which may be required urgently. GA should be on standby for any woman with twins who declines an epidural. In relation to the birth to birth interval they advised that in practice an interval of about 30 minutes is considered a reasonable time after which delivery should be expedited. However relying on the paper by Rayburn from 1984 they advised that provided babies are continuously monitored an increased birth to birth interval was not associated with poorer outcome.

The Advanced Life Support in Obstetrics course syllabus, 4th edition 2000, was produced by Mr Forbes. This document advised that the obstetric situation presents a greater range of challenges in multiple gestation and only the most skilled and confident obstetric providers should plan to attend twin deliveries without backup. The document advised that vertex-vertex presentations were the least complicated and labour may be allowed to progress to NVD of both infants. The editors advised that Oxytocin induction or augmentation, EA and other interventions were all acceptable with caution. They advised the interval between deliveries was not critical as long as the second fetus was “doing well”. They advised on the procedure of Internal Podalic Version which they described as “probably the most difficult and dangerous procedure permissible in modern obstetrics”.

M.O.E.T published a course manual edited by Johanson et al. Mr Forbes produced the 2003 edition. The editors advised but there was no specific birth to birth time interval provided there is continuous electronic FHR monitoring of twin two which is reassuring.

I note that none of the medical texts produced by Mr Forbes recommends offering a mother with twins which are lying in a cephalic position an ECS as an alternative to NVD but some do recommend discussion of CS as the fallback for NVD.

In his live evidence in chief Mr Forbes advised that for M, who did not wish ARM or EA, ECS was a reasonable treatment option. However he advised that in 1996 he would not have volunteered ECS antenatally. He would have advised NVD if the babies’ heads were down. He advised that ARM and EA were standard practice with twin deliveries which were being induced and that EA was extremely likely for the second twin and an obstetrician should have wanted to explore M’s antipathy to those procedures. If a mother raised objections to those procedures Mr Forbes advised that he would still have counselled for NVD.

In relation to the CTG Mr Forbes advised that the annotation “LOC” was inappropriate because the trace clearly showed signal was being received from the bottom of the valleys as it rose up back to the baseline and that was not a loss of contact. He repeated his assertions that there were three decelerations and then a clear late deceleration at 00.17. However he accepted that a single late deceleration was not important. He also accepted that the 1st deceleration after the birth of the first twin was not one to worry about. The second twin would probably move and the movement would cause that.

In live evidence he repeated his view that the decision should have been taken to transfer M to theatre at 00.20 hours. At that time the trace was “not reassuring”, the Claimant’s head was high and not in the pelvis, the cervix was closing. Those matters would cause significant problems if the waters broke spontaneously and might lead to cord prolapse which would be an emergency. Mr Forbes advised that obstetricians would not do a high ARM with a second twin due to the possibility of sudden downward movement and cord prolapse, or movement to a transverse lie. All of which would be difficult situations. If a change of position occurred without an EA the obstetrician would not be able to carry out an Internal Podalic Version and only a GA would permit internal manipulation. GA could only be undertaken in theatre.

As to the delays in theatre Mr Forbes stated that he could not understand why it took 13 minutes after induction of anaesthesia for the birth to occur. He assumed the time for induction of anaesthesia was 00.50 from the anaesthetic chart. He would have expected delivery within four to six minutes. In relation to the snapshot readings of the FHR in theatre at 00.45 and 00.52 he advised that the figures at face value were reassuring as not showing bradycardia.

In cross examination Mr Forbes accepted that Doctor Tristram was sufficiently qualified to deal with the twin pregnancy having heard her live evidence although in his unit he would not have allowed it. In relation to his evidence at paragraph 31 of his report that there was a 60% risk of CS for twin deliveries he was taken to his own literature and accepted that in fact the risk was 42% not 60%. He accepted that was an error. In relation to the figure of 10% of that cohort being CS for the second twin only he was taken to his own literature and accepted that the figure should have been 4.3%. He accepted that was also an error.

When questioned on the CTG he was quite firm in his opinion that it was inappropriate to regard the decelerations merely as LOCs. He separated out the labelling from the substance of the trace and explained that there could be 2 matters shown on the trace: a deceleration and a small loss of contact during that deceleration.

I stop here to make clear that I accept that evidence as both credible and reasonable taking into account all of the evidence I have heard.

Mr Forbes advised that the first deceleration was not a matter to be worried about in view of the likelihood of the second twin moving after the birth of the first. In relation to the second deceleration he accepted that it was equivocal. In relation to the third deceleration at around 00.17 he considered it was not reassuring. He accepted that the trace between 00.20 and 00.40 was reassuring.

He was taken to the April 2018 draft particulars of claim (POC) and accepted that the drafting was probably based on a draft report from himself. He accepted that there was no allegation relating to lack of consent arising from the antenatal events. He accepted that that absence was likely to reflect his view at the time. He accepted that there was no allegation that the Defendant failed to offer ECS and therefore in his draft report it was likely that he did not criticise that failure and he explained that he has not ever said that ECS should have been offered. It was put to Mr Forbes that he was aware of the Montgomery decision at the time the draft POC were sent to the Defendants in April 2018 and he accepted that was correct.

He explained that in his opinion at the meeting on the 30th of January 1996 whilst ECS would not have been offered to M, a discussion should have taken place about induction of labour and M’s antipathy to ARM and EA and so CS should have been discussed as part of that. He advised that NVD/IOL was a reasonable option as a plan for birth but that CS should have come into the discussion because of the absence of the standard components in IOL which M had refused to agree to namely: ARM and EA. However he accepted it was proper practice for the clinician to advise a preference for NVD/IOL. He accepted during a five stage set of questions from defence counsel that: (1) a plan for IOL for cephalic twins was reasonable; (2) that the notes showed that IOL was the treatment Doctor Dunlop considered appropriate to recommend; (3) that if Doctor Dunlop had explained IOL it is likely she would have discussed the process; and (4) that bullet points 1 to 8 in Mr Forbes’ report (paragraph 36) would have been discussed; and (5) that M knew about CS as an alternative or must have done from her multiple previous pregnancies.

In relation to the labour itself under questioning Mr Forbes accepted that it was reasonable for Doctor Tristram to carry out two VEs between the birth of the first twin and about 00.26 and then to formulate a plan. It was reasonable for Doctor Tristram then to consider the alternative ways forward. It was reasonable to have a discussion with a consultant. He accepted that at this time the FHR was normal. He accepted that some twins were delivered on labour wards. He accepted that it was reasonable for Doctor Tristram to suggest ARM as a forward plan including controlled high ARM. Mr Forbes appeared to abandon his suggestion that transfer to theatre should have occurred at 00.20 and he moved that time back to after the second VE and a conversation with M around 00.26-00.27. He stuck to his view that after the second VE the only option was to take M to theatre. However in further questioning he accepted that having not had the conversation earlier it was reasonable thereafter for Doctor Tristram to return from her conversation with the consultant then to continue the discussion with M about the options and the way forward on the basis that Doctor Tristram was suggesting M was going to be transferred to theatre for reassessment and that her default plan was (low) ARM (if the baby had descended) and the alternative plan was CS. However he advised that M’s response was relevant to any informed discussion of the way forward and the decision to be taken.

In relation to events at theatre Mr Forbes accepted that it was reasonable for Doctor Tristram to reassess by VE in theatre. Mr Forbes drew a distinction in relation to the discussions that Doctor Tristram instigated in the delivery suite and in theatre. He pointed out that the discussion on the way forward should have been completed before the transfer. He considered Doctor Tristram inappropriately persisted with the ARM plan and was denying M’s request for a CS which had been made in the delivery suite. He accepted it was appropriate to do a reassessment in theatre because if the head had come down into the pelvis CS would be contraindicated or more difficult. In his view the plan should have been formed in the labour room/delivery suite. Defence counsel asked whether in the light of the parents’ request for CS in the delivery suite at 00.35, it was reasonable for Doctor Tristram to say: we will reassess in theatre. Mr Forbes considered that if a discussion took place the agreement should have been for CS but to re-examine to rule out NVD and then no further discussion would be necessary. He criticised Doctor Tristram for failing to engage in an adequate dialogue in the delivery suite. He pointed out that there is a difference between agreeing to the parents’ request for a CS with a caveat of reassessment in theatre and what Doctor Tristram did, which was to persist with her ARM plan. Doctor Forbes was firm in his advice that the plan should have been made in the delivery suite after a full and informed dialogue with the parents. In theatre, after reassessment, if the situation was the same then the plan, which should already have been made for CS, should have been proceeded with immediately.

Mr Forbes accepted in cross examination that an example of a reasonable set of timings for the duration of anaesthesia and the operation would have been:

In re-examination Mr Forbes explained that his opinion was that the CS plan should have been made before transfer to theatre subject to the caveat that a VE would take place in theatre to see if M was ready to deliver and if necessary have a low ARM. This was because if the baby was too low CS would be difficult. If the head was still high a CS should have taken place. Such a VE would be quick. Mr Forbes explained that if anaesthetic was induced at 00.50 then delivery took too long, in the event occurring at 01.03. However looking at the anaesthetic chart he could not tell precisely when the anaesthetic was induced. Ignoring the Venflon he considered that there was anaesthetic induction at 00.50 and therefore delivery should have been achieved by 00.56. He considered that the maximum time that should have been taken between induction of anaesthetic and the end of the CS could be stretched to 10 minutes but not to 13 minutes.

Mr Tuffnell provided his report in April 2021 and gave evidence in support of the Defendants’ case. He is a consultant obstetrician and gynaecologist who worked at Bradford hospital between 1994 and 2019. He was clinical director for five years. He had been involved in writing papers on fetal monitoring and had contributed to the NICE guidelines in 2010 on intrapartum care. Many of his publications are on diabetes in pregnancy but others are wide-ranging and he has written book chapters on obstetrics.

In the summary in his report his evidence was that it was a factual matter for the Court to decide whether CS was requested by M antenatally (CSMR) however it would not have been reasonable clinical practice in 1996 to offer ECS to every pregnant woman without a clear indication for CS. He opined that Doctor Tristram’s care for the Claimant after the birth of the first twin was reasonable. In particular her decision that M would need a membrane rupture in theatre. In relation to the allegation that by 00.25 hours there should have been a discussion about the plan for delivery and transfer to theatre, he considered that allowing further time for the Syntocinon to work was reasonable. He accepted that it was a fact that at 00.35 hours M requested CS. He advised that at that point Doctor Tristram “would have had to discuss” with her the appropriate risks and benefits of membrane rupture or CS. He avoided advising in his report on whether Doctor Tristram had ignored the parents’ request for CS written in the notes by the midwife at that time.

In the body of his report Mr Tuffnell sought to make good his summary advice. He pointed out that M would have carried her AN notes back and forth herself to the various check-ups with midwives and doctors and that he noted there was no request for a CS in the records. On the contrary there was a note that M sought “natural birth”. He advised that if M had made a request for CSMR then a discussion with an obstetrician would have been appropriate. He advised that in 1996 cephalic twins were not considered to be an indication for ECS. He pointed out that even after 1996 the NICE guidance was that there was no indication for ECS in uncomplicated twin pregnancy where the first baby was presenting in a cephalic position. He amplified this by advising that a student suggesting in an examination that the correct mode of birth for twins would be CS would fail. He advised that ECS was not a reasonable alternative treatment for a twin pregnancy in 1996. What he did not advise on expressly in the report was whether it was a reasonable alternative treatment by choice for this mother who did not want an ARM or an EA and wanted sterlisation so had no plans for further children.

In relation to the labour Mr Tuffnell highlighted that M had asked for an EA despite her previously noted objections to EA. He advised that the usual management of twin labour would be to stabilise the lie as longitudinal and then encourage contractions with the use of Syntocinon.

He advised there was no specific recommendation at the time for the interval between the birth of twin 1 and twin 2. It was recognised most commonly that it did take less than 30 minutes but as long as there was no immediate concern about fetal well-being it was not thought that there was a requirement to get the baby born within a particular time frame. He relied on no books to support his opinions and his choice of words was interesting. He did not for instance use words like these: “As long as the FHR was adequately monitored and reassuring”. I shall return to this later but he did not advise on what should have been done if the FHR was not being monitored adequately.

He warned that if the membranes were ruptured too early it was more likely that the baby would move from a longitudinal lie to a transverse lie and that would necessitate urgent CS whereas waiting for contractions to push the presenting part down into the pelvis would facilitate NVD. In relation to 00.20 hours he noted the cervix was closing and explained this was because there was no pressure on it from the presenting part of the baby to keep it open. However he advised that it would open quickly if pressure started because the baby had descended. He advised there was no specific action required at that time but also advised that a plan needed to be developed. In relation to the Claimant’s allegations of failure to transfer to theatre earlier and failure to respond to the parents’ request for CS at 00.35 hours Mr Tuffnell advised that waiting beyond 00.20 hours was reasonable to permit the Syntocinon to take effect. However at 00.35 hours when the parents’ requested CS he stated “there would have to be a discussion with her about the risks and benefits”. He advised that simply to agree to the request was not correct. He advised that CS would be outside of usual practice without giving M an explanation. He considered that the notes and witness evidence suggested there was a discussion of the risks and benefits of NVD versus CS at this time after Doctor Tristram had discussed matters with the consultant.

Stopping here, Mr Tuffnell did not pass an opinion on whether Doctor Tristram should have acceded to the parents’ request for CS after an informed discussion. He left that as a gap.

Although Mr Tuffnell (at paragraph 30 of his report) included in his thinking consideration that M was not keen on ARM and wanted a CS under GA and told Doctor Tristram this he considered that going to theatre and reassessing was reasonable. As to the discussion in theatre he thought it reasonable to continue the discussion, noted that M refused ARM at that time and chose CS under GA. In his opinion it was reasonable for Doctor Tristram to carry out that discussion and then to proceed.

In relation to the CTG Mr Tuffnell categorised the early “LOC” markings as LOCs instead of decelerations. He advised that one occurred when a scan was being performed. He accepted there was a real deceleration at around 00.17 but advised that one deceleration would not be an indication on its own to change the plan. He advised that the key was to look at a good return to the FHR baseline and the variability of the baseline and he advised that both were within the normal range. He did not regard the trace up to 00.20 as sinister or significant.

He rejected the criticism of Doctor Tristram about the time taken between the decision to carry out the CS and the completion of the operation. He highlighted that it took 23 minutes after the decision to transfer to theatre for the Claimant to be born.

Stopping there, on balance, his time scale of 23 minutes cannot be regarded as accurate. The note of the second discussion on CS in the delivery suite was made at 00.35. However the first was at 00.26. On the assumption that each note was made after the discussion actually took place the time between the discussions and the birth was either 39 minutes (after 00.26) or 28 minutes (after 00.35) and probably a little more.

In his live evidence in chief, Mr Tuffnell raised a randomised controlled trial relating to comparing ECS and NVD for twins which were cephalic. He was a collaborator. The result was uncertainty about the correct approach. He advised that before that trial where twins were cephalic NVD was uniformly recommended. The trial showed that ECS or NVD did not make much difference to the outcome. Therefore after the trial obstetricians have apparently offered ECS more often. He advised that in 1996 the view was that ECS for a mother with a big uterus resulted in more risks for the mother than NVD. There was no evidence that it assisted the babies.

In relation to events in the antenatal clinic events he agreed with Mr Forbes’ approach to how CS would enter discussions there. He would expect that NVD would be explained and that CS would be added to the explanation as a possibility if NVD failed but not as an elective plan from the outset. He explained that NVD was safer if there was no contraindication and that ECS was not recommended or offered in 1996.

In relation to CS, if it was raised by the mother (CSMR), there would be a discussion to try to understand why and to explain the medical view and to hope to achieve consensus. If there were roadblocks in the mother’s thinking then sometimes obstetricians would seek a second opinion.

In relation to labour he advised that the trace was reassuring after 00.20. In relation to the allegations of breach due to delayed transfer he advised and accepted that M needed delivery in theatre either by NVD using ARM or CS. He advised that after the second VE, when Doctor Tristram left the room to take advice (which he said was standard practice), it would be correct to talk to staff outside the delivery suite to inform them that theatre transfer may be needed. He did not accept that it was reasonable to criticise the 15 minutes delay in getting to theatre.

In relation to the CTG decelerations or LOCs he advised they were not a concern and that the single deceleration at 00.17 was not a significant concern in view of the reassuring trace from 00.20 forwards.

As for the asserted delay of 13 minutes between induction of anaesthetic and delivery he did not consider that unreasonable.

In cross examination Mr Tuffnell advised that antenatally if M had requested a CSMR there should have been a discussion about it. If there had been no request then the mention of CS would arise as a possibility during the discussion of the plan for NVD. It would not have been offered as an elective option. Mr Tuffnell admitted to finding the effects of the Montgomery judgment difficult in relation to the offering of treatment options at the antenatal clinic in 1996. He could not answer the question put to him exposing the conundrum in relation to ECS/CSMR: all the Defendants’ witnesses, Mrs Tonge, Doctor Dunlop and Mr. Porter accepted that CSMR would be agreed to if any mother had persistently pushed for it, despite contrary advice from firstly the registrar, then Mrs Tonge and then Mr Porter, namely 3 hoops, and yet none of the obstetricians would have offered ECS.

When questioned on whether IOL could properly be consented for a mother who did not want ARM or EA without the obstetrician offering the alternative of CS Mr Tuffnell explained his thinking as follows. The obstetrician’s purpose would be to explain the process of IOL and how it progressed. It was not uncommon for women to say they wanted to avoid EA but Mr Tuffnell would not automatically offer ECS for a woman with twins who were cephalic just because she did not wish EA. Nor would he offer ECS for a woman who also did not want ARM. The preference he perceived M to be stating antenatally was to have a wholly natural childbirth rather than intervention by CS. Mr Tuffnell accepted that discussing the theoretical dialogue in 1996 is difficult. Dialogues are different depending on the reasons given by each mother for not wanting ARM or EA. When questioned on whether the dialogue was a “persuasion exercise towards NVD” or an “exercise to enable choice between NVD and CS” Mr Tuffnell stated the exercise was to assist women in making the decision that they were most comfortable with. Mr Tuffnell accepted that ARM and EA are part of standard practise for IOL with twins. He accepted as an analogy the following: if the plumber’s job was to complete a sink repair in a house and two of the commonly used tools in his tool bag for the repair were an ARM and an EA; if the houseowner refused to let the plumber bring those tools to the house for the job then he would not bring them to the house, but Mr Tuffnell would still attempt to complete to the job without them.

Claimant’s counsel suggested that the procedure in the antenatal clinic led to M’s consent to IOL because she did not feel she had an alternative. Mr Tuffnell considered that M was aware of the option of CS and the question for the Court was whether she actually requested it. Mr Tuffnell's evidence was that where CS was not medically indicated it would not be offered but it would be discussed if raised by the mother.

In relation to the CTG trace Mr Tuffnell considered that the labels “LOC” were appropriate because there were gaps on the trace. In relation to the substance of the traces which went down, then had a gap, then went back up to the baseline, he accepted that there was a partial deceleration at 00.14 but that its duration was less than 15 seconds. To be a deceleration the reduction had to be more than 15 BPM and more than 15 seconds long. He considered this valley was not clinically significant and was not properly classified as a deceleration. He accepted that CTG was used to monitor the FHR to reassure doctors that they did not need to interfere. His evidence was that decelerations were not unusual for twin 2. So long as the trace returned to a variable baseline at the right level and had accelerations it was not sinister. Contractions cause decelerations. He accepted that there was a deceleration at 00.16 to 00.17 however this was ameliorated by the reassuring trace after 00.20.

In relation to the VEs carried out by Doctor Tristram, the first showed the cervix at 8 cms dilation, so already closing, and the second was 7 cms, a further closing. He accepted that the baby’s head was high above the pelvis and the risks of an ARM with the head high would include: cord prolapse which would be an emergency and would have to take place in theatre, and also potentially a change of the baby’s position which would be tricky for any obstetrician. Claimant’s counsel suggested the only real option at this time in the delivery suite was CS not ARM. Mr Tuffnell however considered that ARM was still the preferred option although CS could become an option. However he accepted that having ARM as the primary plan was a bit artificial. M needed to go to theatre, have an assessment, and the clinician would then decide. Doctor Tristram set in motion steps to go to theatre. Mr Tuffnell considered that taking 10 minutes to get to the theatre after the decision to go to theatre would not be unreasonable and 15 minutes would not be unusual.

In the light of the fact that the CTG was going to be removed so that the FHR would become unmonitored I did not find that piece of evidence persuasive.

Mr Tuffnell considered it was reasonable to wait for the Syntocinon to take effect. He considered it reasonable for Doctor Tristram to leave the room at 00.27 and discuss the plan with a consultant and then return to discuss the plan further with the parents and to obtain consent before leaving the delivery suite.

In relation to the conversation with the consultant whilst M was in the delivery suite Mr Tuffnell accepted (from the video) that the parents had requested CS before Doctor Tristram departed to have that discussion. He accepted in relation to that discussion that there was a risk that high controlled ARM would not work due to prolapse of the cord or change in the position of the baby leading to a requirement for a crash GA and then CS. He did not accept that most obstetricians would have chosen a CS instead of a high ARM for this mother. However he accepted that the choice would depend on the fetal heart rate, the cervix closing and the height of the head. When questioned on why there was any need for a second discussion with the consultant in theatre after M had refused an ARM and had specifically chosen CS Mr Tuffnell advised it was still the registrar’s obligation to explain matters to the consultant.

In relation to the delay between induction of anaesthetic and the Claimant’s birth Mr Tuffnell explained that the anaesthetic procedure was for a Venflon to be inserted so that IV fluids could be used. Correct siting of the Venflon was crucial because the fluids could cause necrosis if they did not go straight into a vein. Then 3 minutes was needed for pre oxygen. Then drugs would be infused, the first to make the patient sleep and the second to create paralysis. Then a tube would be put into the trachea to monitor CO2. Then the anaesthetist would fix the tube and tell the surgeon everything was OK to proceed.

In relation to the snapshot taken in theatre of the FHR and the conundrum that the readings were 135 and 138 BPM Mr Tuffnell explained that it could either be the maternal pulse or occasionally the hand held devices doubled the actual FHR, hence in this case the correct FHR would have been half the appropriate reading (around 65-66 so bradycardic).

Mr Tuffnell advised that he would have expected Doctor Tristram to tell Mr Dunster during their first discussion, whilst M was in the delivery suite, that M did not wish an ARM or an EA. Presumably he would also have expected Doctor Tristram to mention the parents’ choice of CS but he did not say so.

In their joint report produced in December 2021 after discussion of the issues Mr Forbes and Mr Tuffnell agreed that if M had asked a midwife for a CS the midwife should have ensured that an appointment with a consultant (Mrs Tonge) was arranged to discuss the request and recorded that in the AN notes. In relation to the AN notes stating that M would prefer natural labour, no ARM and no EA, but if she had a CS she would like sterilisation at the same time, Mr Forbes advised that NVD without EA and ARM needed to be discussed with an obstetrician. Mr Tuffnell did not answer the question and merely stated that the note suggested M preferred a plan for NVD. I find Mr Tuffnell’s avoidance of answering that question troubling. He must have known it was relevant to the issues.

Having discussed ARM, both experts agreed that on 30.1.1996 offering NVD with IOL was reasonable provided consent was obtained. If M had requested CSMR Mr Forbes advised that CS should have been agreed to after a balanced discussion of the risks and benefits of NVD versus CS. Mr Tuffnell agreed about the counselling.

Both experts agreed it would not have been reasonable to offer M an ECS absent a request for it with cephalic twins where M had delivered naturally before (twice), but if CSMR had been requested by M and M had persisted after counselling (and possibly a 2^nd opinion), then both agreed that CSMR should have been agreed to by the Defendant.

CTG: Mr Forbes advised that there were decelerations at 00.05; 00.11; 00.14 and 00.17. Mr Tuffnell advised that the 00.05 was probably MHR; the 00.11 was a deceleration but probably MHR; the 00.14 might be MHR and the 00.17 was a deceleration. Mr Forbes summarised the first 20 minutes of the trace as showing decelerations and Mr Tuffnell focussed on the normal baseline in between. Both agreed that the trace was reassuring from 00.20 to 00.41 and was probably the MHR not the FHR. They also agreed that the failure of Doctor Tristram to spot this was not negligent.

On the experience of Doctor Tristram to manage the birth, both agreed it was not negligent to let her do so by reference to her training and experience although Mr Forbes considered that saying so was “illogical”.

Both agreed that by 00.27 the Claimant’s head was not descended into the pelvis and the cervix was closing. Mr Forbes advised that a prolonged birth to birth interval was only permissible if fetal monitoring was reassuring. He asserted the CTG showed repeated decelerations. (In evidence he accepted that 2-3 of those were not sinister.) Mr Tuffnell advised that the CTG was reassuring. Both agreed that it was reasonable for Doctor Tristram to take advice from a consultant and that time.

Question 20 was confusingly phrased on timings but I assume it related to the first discussion with a consultant. Mr Forbes advised transfer to theatre was required before speaking to the consultant. Mr Tuffnell disagreed. Transfer after was reasonable. Both agreed that the discussion probably took place just after 00.27 when Doctor Tristram left the delivery suite. Mr Forbes advised the discussion should have taken place at about 00.25. Mr Tuffnell advised that what Doctor Tristram did was reasonable.

Answering question 22 about whether the consultant should have been aware of M’s aversion to ARM, Mr Forbes advised that ARM was immaterial because the baby was high but immediate transfer to theatre and theatre readiness was mandated. They agreed that when Doctor Tristram went to talk to Mr Dunster the Claimant’s head was high and the cervix was contracting (closing) and the parents had indicated that they had wanted CS from the start to Doctor Tristram. Mr Tuffnell agreed that ARM at this time was materially different to ARM to start labour. He did not deal with the parents’ request for CS and whether the consultant should have been told of this choice.

That answer (or lack of answer) from Mr Tufnell is relevant to my decisions below.

Both agreed that before the discussion the head was high and the cervix was contracting. Mr Forbes pointed out that the parents had requested CS and Mr Tufnell accepted that the parents had stated they wanted CS from the start.

For that discussion the experts agreed that the options were: ARM; possible IPV; breech extraction; or CS.

The obstetric experts agreed that Doctor Tristram could have agreed to the parents’ request for CS around 00.27 and that would have been a reasonable option, with Mr Tuffnell adding that a discussion with the consultant was required before agreement.

In answer to hypothetical timing questions the experts agreed it should have taken about 26 (Forbes) or 25-30 minutes (Tuffnell) from the decision to do a CS to the birth and 5 minutes longer if the decision to transfer had been delayed until after the discussion with the consultant. On the hypothesis that a decision for CS had been made during the first discussion with Mr Dunster (at between 00.27 and 00.34) the experts’ timings for the but for birth were 00.55 and 00.58.

I consider that both obstetric experts were impressive and helpful witnesses with substantial experience. I was particularly impressed by Mr Forbes’ depth of thought. Other than some minor errors on figures carried over from the large volume of relevant text books and articles he helpfully provided I preferred his analysis of the events and of the standard of care for the obstetric clinicians involved. I found Mr Tuffnell’s evidence more general. He provided no textbooks or articles to support his evidence and his evidence on the CTG trace and the timings of when events should have occurred was less logical than that of Mr Forbes. In addition Mr Tuffnell’s evidence that there was no rush because the FHR was reassuring on the CTG evaporates in logic when the CTG was removed at 00.40 well past the point when the 30 minute inter-twin period had expired. He did not address the Rayburn paper point that so long as the CTG trace remains reassuring there is no rush. Whereas Mr Forbes did directly address the need for speed after the CTG was removed and indeed before in the knowledge that on transfer to theatre that would take place. I am also troubled by the way Mr Tuffnell omitted to answer some key questions.