Loraine v Wirral University Teaching Hospital NHS Foundation Trust

The Claimant was born on 22^nd August 2000. He suffers from cerebral palsy, manifested in spastic quadriplegia, general developmental delay, visual impairment and gastro-oesophageal reflux, this being the consequence of foetal asphyxia that he sustained when his mother suffered a profound placental abruption shortly before his birth. In this action he claims damages from the Defendant, which is responsible for the provision of medical services at Arrowe Park Hospital.

The question of labour management raised by this case may be of interest to hospital administrators. The question of causation may be of interest to lawyers.

On 21^st August 2000 the Claimant’s mother, Pauline Loraine, was in the thirty-eighth week of her fifth pregnancy. She and her husband went to sleep shortly before midnight. At about 02.45 on the following morning she woke up and felt a gush of liquid on her legs. On pulling back the blankets she saw a substantial quantity of liquid blood as well as some clots of blood. She felt weak and faint. She saw in the mirror that her skin appeared grey. Her husband ran downstairs to telephone for an ambulance. Shortly after 0300 an ambulance arrived. Mrs Loraine was placed on a stretcher and driven to the Arrowe Park Hospital. On the way the ambulance crew administered intravenous fluid to replace her loss of blood. At 03.35 AM she was seen in the labour ward at the hospital where the Claimant was born by emergency caesarean operation at 03.58. He was in poor condition. The Defendant admits that if he had been born before 03.38 he would have been uninjured. After the caesarean section, Mrs Loraine was found to have a cervical fibroid measuring 6 cm by 6 cm and a retroplacental clot (ie: a clot behind the placenta).

This was by no means Mrs Loraine’s first visit to the maternity unit at the Arrowe Park Hospital.

Her first child was born there on 17^th May 1989, after a relatively uncomplicated labour augmented by Syntocinon. Labour was followed by a suspected puerperal infection, treated by amoxicillin and metronidazole.

Her second child as born at the Arrowe Park Hospital on 2^nd May 1994, following artificial rupture of the membranes a few days after the due date. Thereafter Mrs Loraine suffered puerperal depression.

Her third child was born at the Arrowe Park Hospital on 11^th August 1997. A scan taken in mid-pregnancy, on 14^th March 1997, revealed a fibroid measuring 5.2 cm by 4.8 cm on the posterior uterine wall. The fibroid was detected again at 28 weeks when it was measured at 5.1 cm by 3.7 cm. The infant’s lie was found to be transverse from 33 to 36 weeks but at the end of 37 weeks of pregnancy his lie had become cephalic. Further ultrasound examinations, conducted on 20^th June and 11^th July 1997, confirmed the presence of the fibroid in Mrs Loraine’s cervix but detected no change in its size or location. On Mrs Loraine’s admission to hospital on 8^th August 1997, with Braxton Hicks contractions, the foetal head was found to be displaced. A request was made for a scan. The request noted a high head and commented or suggested: “fibroid obstructing foetal head”. A further ultrasound examination was made. The sonographer reported

“The fibroid in the posterior wall measures 5.5cm and does appear to extend below the level of the foetal head”.

Subsequently it was confirmed that the posterior fibroid was below the foetal head. On 11^th August 1997 Mrs Loraine was readmitted to hospital with established labour and delivered a healthy male child.

On 23^rd November 1998 Mrs Loraine delivered her fourth child at Arrowe Park Hospital. The records of this pregnancy make no reference to a fibroid. An ultrasound scan was conducted on 18^th August 1998, at the gestational age of 25 to 26 weeks, when the stomach of the foetus was not visualised. A further scan was performed on 21^st August 1998. At 38 weeks the presentation of the foetus was a double footling breech. The responsible consultant, Mr Murray, attempted external cephalic version, to turn the infant to the normal presentation for delivery but could achieve only a transverse lie. By 17^th November 1998 the infant had spontaneously achieved cephalic presentation. Mrs Loraine proceeded to a successful delivery six days later.

Mrs Loraine’s fifth pregnancy, culminating in the birth of her son Stephen on 22^nd August 2000, is the subject of this litigation. The history of that pregnancy is as follows.

By letter dated 13^th April 2000 Mrs Loraine’s general practitioner referred her to Mr Murray at Arrowe Park Hospital. The letter stated in part that Mrs Loraine’s fundus was of 20 weeks’ size and that Mrs Loraine requested listing for sterilisation after the birth of this child.

The hospital’s booking-in summary, apparently entered on the computerised record on 20^th April 2000, contained the following entries: “Past Medical History: laparoscopy, tonsillectomy, post-natal depression, on Prozac postnatally 2^nd baby. Family History: Father of this child: None other relevant family history. Maternal uncle and brother Downes [sic] syndrome. H/O twins both side family. Maternal mother high bp.” The date of Mrs Loraine’s last menstrual period was stated to be “28/11/99 certain”. On that premise, the expected date of her confinement would be 3^rd September 2000. Under the heading of Obstetric History the only complication listed for Mrs Loraine’s third pregnancy was “UTI”, signifying a urinary tract infection. No mention was made of the fibroid in the posterior wall detected and monitored in the third pregnancy.

In response to a request for a “routine 20-week scan” an ultrasound test was made on 28^th April 2000. The examination showed that heart-beat, limb movement, stomach, bladder, abdominal wall, spine and head all appeared normal. There is no indication that the sonographer had been alerted to the existence or risk of a fibroid, or that she looked for one or discovered one. Nor was there any mention of a footling breech presentation in the fourth pregnancy.

On the same date Mrs Loraine was examined. The notes stated in part “Late booking – 21/40. See at 34/40”. From this we may infer that the doctor or midwife conducting the investigation took the view that Mrs Loraine was in her twenty-first week of pregnancy and that she should return in the thirty-fourth week.

Mrs Loraine was seen at her general practitioner’s surgery on 17^th May, 14^th June 28^th and 12^th July, on each of which occasions the presentation of the infant was recorded as “ceph free”, by which we must understand that the baby’s head was not yet engaged.

However on 28^th July 2000, when her pregnancy was of thirty-four weeks and five days, the presentation of the infant was recorded as “oblique”, signifying that the baby was lying in the womb in a position somewhere between vertical (or longitudinal) and horizontal (or transverse). The corresponding comment read “In view of oblique lie see 36/40” (that is, in the thirty-sixth week of pregnancy).

Mrs Loraine was seen again on 2^nd August 2000 when the infant’s presentation was again recorded as “oblique”. The comments include “Advised re SROM” which denotes spontaneous rupture of membrane. Presumably the advice given was that in the event of such a rupture, Mrs Loraine should come to the hospital immediately.

Mrs Loraine was next seen on 11^th August 2000, when she was thirty-six weeks and five days pregnant, the presentation of the infant was again recorded as “oblique”. The midwife’s comments include the following entries “Transverse lie. Dr review.” Different handwriting, apparently that of a junior doctor, continues “U/S performed for presentation. Footling breech. Blood taken for FBC & bile acids. D/W Mr Murray → appointment next week .i/c blood results & ?ECV”. That note indicates that an ultrasound test had been conducted and had revealed that the infant was in footling breech presentation; that blood had been taken for a full blood count; and that at the appointment in the following week consideration should be given to the blood tests and to altering the lie of the infant by external cephalic version.

An ultrasound examination was indeed conducted on 11^th August 2000. The relevant passage of Mrs Loraine’s statement reads as follows:

“The lady who did the ultrasound told me that I should make an appointment for the following week and to ensure that the appointment was with Mr Murray. She said he was going to try to turn the baby. The lady was very specific and said that I was only to see Mr Murray and no-one else. I confirmed that I would do this and made the appointment to see Mr Murray the following week.

I do not recall being given any pictures of the baby following this scan.”

On 18^th August 2000 Mrs Loraine was seen in the Arrowe Park Hospital, not by Mr Murray but by Senior House Officer, Dr Williams. The notes of the examination record that the infant’s presentation was “Oblique/transverse. Head LUQ. Anterior placenta normally sited” That means that the infant was in the left upper quadrant of the uterus. Among the comments on the notes there is the entry “Probably unstable lie” and the words “D/W Mr Murray → Outpatient care. See weekly until lie stabilises. Advice to attend promptly re SROM”.

From this we may infer that another ultrasound must have been taken on that date: there is no other means by which the information about the placenta is likely to have been be obtained. Mrs Loraine states, and I accept, that a mobile scanner was used. This is unlikely to have produced results of the reliability and clarity that would be produce by a static scanner. It also appears from the notes that upon Mr Murray’s advice, the decision was taken that Mrs Loraine should be treated as an outpatient (Dr Williams having raised the question of admitting her as an in-patient) and that she should be advised to attend the hospital weekly until the lie of the foetus should stabilise; and to come to the hospital immediately in the event of spontaneous rupture of her membrane.

On this point, as on others, Mrs Loraine’s statement is detailed. Although a substantial period elapsed between the events described and the date on which the statement was made, I give Mrs Loraine’s statement more credit than I would otherwise do since she made exceptionally detailed notes about her medical appointments while she was in the special care unit of the hospital and the events were fresh in her mind. The care that she devoted to the exercise is demonstrated by a supplemental statement in which she corrected her account of the precise phraseology used by Dr Williams. That said, I do not believe that Mrs Loraine properly understood the whole of the medical advice given to her. I accept that inaccuracies could arise where she recorded, to the best of her recollection, advice that she did not entirely comprehend.

As corrected, the part of her statement dealing with her examination by Dr Williams includes the following passage:

“19 The junior doctor examined me and said that the baby was lying across again. He said that as I already had 4 children, my stomach muscles were very relaxed and that if he turned the baby, it would probably turn back again. The doctor then went out of the room. He came back a few minutes later saying that he was getting the mobile scan to check for himself which way the baby was lying.

20 He then did a scan. As [h]e was looking at the screen he appeared concerned. He seemed to spend a long time looking at the screen. I began to feel panicky and that something was wrong with the baby. I asked if everything was okay. He said that the baby was anterior/oblique. He said he was trying to see where the baby’s feet were. I asked him why and he said that he wanted to see if the feet were bent or straight. He explained that the placenta was low and as far as he could see, it was underneath the baby.

21 The doctor then said that he was going to go and speak to Mr Murray. He explained that I should be prepared to stay in hospital although I could go home for a short period to sort out the other children if necessary. I said that I was happy to remain at the hospital as the situation appeared to be serious. The doctor explained that I would be put in one of the wards and the midwives would monitor me. He explained that they would arrange an elective caesarean to ensure that the baby was born safely.

22 The doctor then left the room and I assume he went to speak to Mr Murray. A midwife then came back into the room with this doctor a few minutes later. The doctor explained that he was going to give me an internal examination. He did this examination and then explained that Mr Murray was sending me home and I was to make an appointment for the next week. He said that I would then have another internal examination to check how things were. The midwife then said that I was to go back every week and have an internal examination each time.

23 The doctor then went on to explain that if my waters broke, I was to return straight to the labour ward. He then turned to the nurse and said “if her waters break she could have a massive bleed”. He looked at me and said that my only option at that point would be to have an emergency caesarean to deliver the baby. He repeated that I should come straight here and not hesitate staying at home if my waters break.

24 There was again no mention of any fibroids.”

Mr Murray points out that paragraph 23 of Mrs Loraine’s statement contains a non sequitur and could not be a true account of what Dr Williams said. I accept that this is so. I think it likely that Dr Williams warned Mrs Loraine of the need to check for placenta previa or of a spontaneous rupture of the membrane: not of the massive bleeding that she actually experienced in consequence of a placental abruption. Subject to that correction, Mr Murray tends to confirm rather than to challenge the thrust of Mrs Loraine’s statement. Responding to Mrs Loraine’s account of the words of Dr Williams, Mr Murray states:

“These comments were made in the context of the outpatients appointment attended by Mrs Loraine on 18^th August 2000. My understanding is that it was a Dr Williams, SHO in Obstetrics and Gynaecology, who saw Mrs Loraine on that occasion albeit that I acknowledge that Dr Williams spoke to me and that the management plan adopted was in accordance with my advice. Our main concerns on the 18^th August 2000 were to explain to Mrs Loraine what to do in the event of a spontaneous rupture of the membranes and secondly, the risk of cord prolapse.”

Mr Murray states that in his judgment:

“The risk of cord prolapse was not a ground for admission to hospital at that stage, at 37 weeks of pregnancy. Indeed there was no ground for admission on 18^th August 2000.”

Mr Murray states that the second examination to confirm the diagnosis of unstable lie would be made one week later, at thirty-eight weeks. To be precise, Mrs Loraine’s pregnancy was advanced by thirty-seven weeks and five days on 18^th August 2000.

The Claimant’s pleaded case is that in these circumstances the Defendant acted in breach of duty:

In view of the way in which the trial developed, I can deal in a summary fashion with the second, third and fourth of these allegations, which concern the ultrasound examination conducted and the advice given on 11^th August 2000 and the examination of the Claimant’s mother on 18^th August 2000. The complaints made in the second, third and fourth headings of this claim are subsumed within the first and fifth headings, by which the Claimant alleges in substance that the Defendant ought to have diagnosed the fibroid at some stage prior to 18^th August 2000 and, having done so, ought to have admitted his mother to hospital.

The Claimant’s case, thus understood, gives prominence to a point of law which is not entirely straightforward. A profound placental abruption is an uncommon complication occurring in only a small proportion of pregnancies. The risk of its occurrence in this case was not to be foreseen even on 18^th August 2000. On the other hand the risk of a cord prolapse was both foreseeable and foreseen on that date. However foetal asphyxia, which was the immediate cause of the Claimant’s condition, is liable to result from either profound placental abruption or from cord prolapse. One of the Defendant’s contentions is that since the mechanism that caused the Claimant’s condition was not reasonably within the contemplation of those caring for Mrs Loraine on 18^th August 2000, it could not incur liability for any act or omission that caused it. To resolve that issue I must determine whether the Defendant, and any other person in a similar position, is liable to compensate an individual who suffers an unforeseeable manifestation of a foreseeable danger arising from a breach of a duty of care owed to such an individual.

My task of assessing the quality of Mrs Loraine’s medical care has been made possible only by the evidence of distinguished experts for both the Claimant and the Defendant. Although I have been obliged to prefer some of the experts rather than others, I wish to record the debt that I owe to all of them.

On questions of obstetrics and gynaecology I was assisted by Mr Roger V. Clements, FRCS (Ed), FRCOG, FAE, who gave evidence for the Claimant, and Mr Nigel Saunders, MD, FRCS, FRCOG, for the Defendant. Counsel for the Defendant invited me to prefer the evidence of Mr Saunders since he is a practising gynaecologist within the National Health Service. Mr Saunders’ current experience of gynaecological practice is indeed a significant consideration. On balance, however, I preferred the evidence of Mr Clements. That was so for four reasons. In the first place, his report was written after careful examination of the medical notes relating to Mrs Loraine whereas Mr Saunders did not have the advantage of studying the notes of the third and fourth pregnancies before attending the experts’ meeting. Although it is contended that this was an advantage, since it put him in the same position as Mr Murray, I consider this to be a disadvantage for Mr Saunders because his report failed to address in any detail the question of what a competent gynaecologist would have done had he been presented with records that (in my judgment) he ought to have seen. In the second place, Mr Clements disclosed his substantial experience in obstetrics and gynaecology, including thirty-five years of practice at or above the level of consultant while holding qualifications as a Fellow of Royal College; and a list of publications including five relevant books and about forty relevant articles. Mr Saunders did not disclose so extensive an experience. In the third place, Mr Clements claimed specific experience in advising hospitals about management of risks, including ten years as editor in chief of the journal Clinical Risk. Mr Saunders made no comparable claim. In the fourth place, I found unrealistic Mr Saunders’ evidence that it would have made no difference to the outcome in this case if Mrs Loraine had been admitted to hospital on 18^th August 2000. There was no point in Mr Clements’ evidence that I would characterise as unrealistic.

On questions of ultrasound examinations I was assisted by the expert reports of Professor Stuart Campbell, FRCOG, FRCP Ed, DSc and Mr Hylton Meire, MBBS, LRCP, MRCS, DMRD, DObstCOG. Both are men of distinction; and in the event their evidence was remarkably congruent. I could not, however, fail to pay careful attention to the evidence of Professor Campbell, whose relevant publications comfortably exceed 500 titles. His experience in the field of obstetrics and gynaecology, including substantial periods in maternity wards at in Glasgow and Carlisle as well as at King’s College Hospital, Queen Charlotte’s and Chelsea Hospital for Women, St George’s Hospital and the Centre for Reproduction and Advanced Technology is scarcely less impressive than his experience in the field of ultrasound examination.

I would have found it helpful to receive the evidence of at least one hospital administrator (who could have explained in greater detail than Mr Murray under what circumstances the records of Mrs Loraine’s previous pregnancies would have been made available to the medical staff) or from the midwife who conducted her booking-in appointment (who could have given first-hand evidence about the availability of hospital records) ; or from the sonographers who conducted the ultrasound examinations of Mrs Loraine that have been central to this case. No evidence from these quarters was forthcoming. So I have had to reach my decision without the benefit of that evidence. I draw no adverse inference from its absence.

As the hearing of this case progressed it became increasingly clear that each of the grounds on which the Claimant based his claim had a common root. This was the fact that the gynaecologists treating Mrs Loraine, including Mr Murray, were not supplied with the records of her previous four pregnancies including the record showing the presence, size and location of the fibroid detected in her third pregnancy and the footling breech.

Mr Murray was asked about this point early in his evidence. His answers, as I recorded them, included the following statements: “At the booking meeting [on 20^th April 2000] the midwife would not have had the old notes” by which I took him to mean, the notes of Mrs Loraine’s attendance at the hospital during her earlier pregnancies. Mr Murray continued “Records are kept in an obstetrics archive. They are not pulled out for a patient’s first visit.” He explained that the main medical record available to the gynaecologists is a hand-held note carried by the patient. “Records of previous pregnancies remain in the archive. A patient is asked about previous pregnancies if questions are prompted by her scan. The clinician will retrieve the record if it is relevant for her next visit.”

Counsel for the Claimant put to Mr Murray the following question: “Is it right that the interviewing midwife is not provided in advance with information that would flag up complications in previous pregnancies?” Mr Murray answered “That’s true”. Asked if it was not surprising that no mention was made of Mrs Loraine’s fibroid in the record of her fourth pregnancy, Mr Murray replied “It is surprising. Perhaps she did not mention it.” He was then asked “Isn’t this a flawed system? An expectant mother may not have appreciated a previous problem or may have forgotten it altogether”. Mr Murray replied: “This system reflects the practice throughout the country and indeed the world”.

His evidence as to practice in hospitals generally was contested by Mr Clements. After explaining that in his opinion considerable significance was to be attached to the record of a fibroid in Mrs Loraine’s posterior uterine wall, Mr Clements said “I found it surprising that Mr Murray would say that a failure to mention a fibroid may be due to the patient’s failure to mention it. It is prudent to review a patient’s records of previous pregnancies at the first booking visit at the hospital. That is the normal practice in the generality of hospitals. The midwife at the booking-in interview should have had in front of her Mrs Loraine’s medical records, showing previous pregnancies at Arrowe Park. When she went for a scan, the sonographer should have had Mrs Loraine’s records and the fact that she was known on a previous occasion to have had a fibroid.”

On this point I prefer the evidence of Mr Clements. The relative breadth of his experience makes him better placed than Mr Murray to speak with authority on the practice in hospitals generally; and his specialised experience in risk management enables him to testify with some authority on the disadvantages of relying upon a patient to alert clinical staff to complications that may arise from disorders detected previously. As Mr Clements observed, the practice of relying on the patient to identify complications is hazardous because the patient may be unaware of the significance of factors detected by the hospital; or may have forgotten those factors or remembered them incorrectly.

In the present case the relevant records showed not only a fibroid (incorrectly entered on the record for the fourth rather than the third pregnancy) but also a footling breach presentation in the fourth pregnancy: a feature which would have alerted a competent gynaecologist to the possibility that the fibroid might present an obstacle to normal delivery. These are not features that Mrs Lorraine could be relied upon to draw to the attention of the clinicians whom she saw in the hospital. Lacking gynaecological training, she might have drawn the reasonable but incorrect inference that the fibroid had dispersed by August 2000 or that her safe delivery of a child on her fourth pregnancy indicated that the fibroid presented no danger. But as Mr Clements explained, the fibroid did present a potential complication by reason of its size and location.

All relevant witnesses, including Mr Murray, Mr Saunders, Professor Campbell and Dr Meire concur in the view that if the staff carrying out the ultrasound examinations in Mrs Loraine’s fifth pregnancy had been told that there had been a fibroid in a previous pregnancy, and that they should look for it, the probability is that they would have found it. Indeed, I think that on balance of probabilities the fibroid would have been detected at the very first ultrasound examination on 28^th April 2000, had the sonographer then been asked to look for it and supplied with the information from the records about its location and size. In reaching that conclusion I reason that the location of the fibroid had not altered between the date when it was measured in the third pregnancy and the date when it was seen following Stephen’s birth; and its size appears to have grown.

In the event (which I consider to be unlikely) that the fibroid was not detected and mapped on 28^th April, I consider that it would have been detected by ultrasound on 11^th August 2000, had the sonographer been supplied with the records of Mrs Loraine’s third pregnancy. At that date the relevance of the fibroid to the infant’s oblique lie would have been apparent.

I can be less categorical in reaching my conclusion as to the probability that the fibroid would have been detected on 18^th August 2000, had it not been detected earlier. The question would arise only on the hypothesis (which I consider to be very unlikely) that even if presented with the records of Mrs Loraine’s third pregnancy, a competent sonographer might have failed to detect it not only on 28^th April but also on 11^th August. If those circumstances were to arise the probability of detecting the fibroid on the third attempt would have to be assessed in the light of Dr Meire’s evidence that “low, posterior and small fibroids may be overlooked, even on targeted scans, especially in later pregnancy”. I would also have to bear in mind the fact that the scan of 18^th August 2000 was conducted on a hand-held device. I conclude that the fibroid, if not recorded on 28^th April and 11^th August, would on balance of probabilities have been missed by a competent operator of the mobile scanner on 18^th August. In reaching that conclusion I do not overlook Professor Campbell’ statement that it is “absolutely certain” that a formal scan conducted on 18^th August 2000 would have detected the fibroid. By using the words “formal scan”, Professor Campbell appeared to me to exclude the case of the hand-held mobile scanner which was in fact used on that date. Furthermore,I did not understand him to be addressing the hypothetical and unrealistic hypothesis that the sonographer might have failed to detect the fibroid on two previous occasions, even if supplied with information about its size and location from the hospital’s records.

If the gynaecologist managing Mrs Loraine’s pregnancy had asked for an ultrasound reading of her fibroid (as he ought to have done, had he been supplied with the appropriate records) and if the ultrasound had confirmed the size and location of the fibroid (as it would have done on 28^th April or 11^th August) this could not have failed to affect the management by a competent medical team of Mrs Loraine’s fifth pregnancy.

The management of the pregnancy would have been affected in at least the following ways:

Whether or not Mr Murray had tried external cephalic version he would have considered, in the light of a known complication, whether Mrs Loraine should remain in hospital. His concern at that stage would have been that the uterine obstruction might increase the chance of a cord prolapse. As Mr Murray accepted, there was no reason to do other than to keep Mrs Loraine in hospital. Mrs Loraine herself had confirmed to Dr Williams, immediately before his consultation with Mr Murray, that she “was happy to remain at the hospital”. Her pregnancy was then advanced to thirty-seven weeks and five days.

Even in the absence of such complicating factors as an obstructing fibroid and footling presentation, the leading medical textbooks in circulation at the time indicated that hospital admission might be an appropriate course for a lady at this advanced stage of her pregnancy. Turnbull’s Obstetrics 1995 at 263 stated “many units will feel happier of they can admit her [the mother] two or three weeks before term for daily observation”. Dewhurst’s Textbook of Obstetrics and Gynaecology, 1999 at 288 stated “Patients with transverse lie should not be allowed to labour because of the risks of uterine rupture and cord prolapse … Recurrent unstable lie justifies hospital admission at 37 weeks to await labour”. Steer’s High Risk Pregnancy, 1999 at 305 stated: “This approach [ie the interventionist approach] involves hospital admission from 37 weeks onwards”.

If Mrs Loraine’s fibroid had been known, and if her history of footling presentation been taken into account, a consultant applying the degree of prudence to be expected of him would in my opinion have admitted her in hospital, so that she could be observed and could receive prompt attention in case of an emergency.

It is contended on the Defendant’s behalf that if Mrs Loraine’s records had been disclosed to the gynaecologists treating her, they would have shown that on two previous occasions she had delivered children normally notwithstanding the fibroid. I took Mr Murray to be referring to the favourable outcome of the third and fourth pregnancies when he stated in his witness statement “The history of previous labour onset at 39-42 weeks was reassuring with regard to the risk of membrane rupture”. The fallacy in this argument is obvious; and was the subject of vigorously-presented argument by the expert witnesses for the Claimant. No inference could be drawn from the outcomes of previous pregnancies without ascertaining the state of the fibroid. To determine whether the fibroid had dispersed or mutated it was necessary to conduct a fresh ultrasound examination. . Had the appropriate examination been conducted it would have shown that the fibroid was still in the same place as in the third pregnancy and was now of slightly larger dimensions.

It is also contended on behalf of the Defendant that the risk of cord prolapse is appropriately managed by sending the mother home with advice to come to the hospital if there is a rupture or if labour starts. I accept that in this is the correct course in the generality of cases. But a different form of management is appropriate was appropriate in this case where there was a multiparous patient with a fibroid in the uterine wall that ought to have been known to the doctors treating her. In Mr Clements’ words

“The onset of labour in a woman of high parity may be rapid and tumultuous. If labour begins, in such a way, with an undeliverable presentation, such an oblique or transverse lie, the uterus may rupture before the patient reaches hospital.”

Moreover the fibroid was an important consideration which should have led to a different form of treatment, had it been known to the doctors attending Mrs Loraine. Again I quote from Mr Clements:

“If the doctors at Arrowe Park had understood the reason for the unstable lie they could not have adopted such a laissez faire attitude for it. … [In view of the fibroid] there would be no probability of spontaneous correction and head engagement”

In his written statement Mr Murray expressed the following view:

“the decision to manage expectantly without admission to hospital was reasonable and safe. Mrs Loraine was advised appropriately that she should attend weekly for assessment if all seemed well, and attend promptly if membrane rupture occurred”.

That statement leaves out of account, as Mr Murray had to do on 18^th August 2000, the record of Mrs Loraine’s previous management at the same hospital, including the record of the fibroid detected earlier. If the presence, size and location of the fibroid had been known, as well as the former footling breach presentation, the decision to send Mrs Loraine home on 18^th August 2000 could not have been taken reasonably and safely.

It was put to Mr Murray in cross-examination that on 18^th August 2000 he should have admitted Mrs Loraine to hospital. He replied “I would not change our decision. The patient had delivered twice with these fibroids. She was a low-risk patient in terms of her ability to deliver vaginally”. Obviously Mr Murray did not mean that, knowing what we now know, he would have failed to admit Mrs Loraine: for what we now know is that she was about to suffer a profound placental abruption. In its context, Mr Murray’s answer appears to mean that he would not have admitted Mrs Loraine to hospital on that day if he had known that she had both a history of fibroids and a history of safe vaginal delivery. But that is not quite the point.

If presented at an earlier stage with the records showing that in her third pregnancy Mrs Loraine has a fibroid of significant size in the ulterior uterine wall, and a footling breech, Mr Murray should have caused enquiries to be made to determine whether there was still a fibroid in the uterine wall and whether its size was such as to constitute a potential obstruction. The information that he would so have obtained, together with the outcome of Mrs Loraine’s investigations prior to 18^th August 2000 would have alerted him to a real danger of obstructed delivery. In those circumstances he ought to have admitted her to hospital as a precaution. As I have explained, the leading textbooks, in the editions then available to Mr Murray, indicated that admission to hospital should be considered in the case of a woman approaching the end of her thirty-seventh week of pregnancy, presenting with a transverse lie. If, in addition to those characteristics, Mrs Loraine had been known to have a fibroid of some 6 cm by 6 cm, located in the lower uterine wall, prudence would have required her admission to hospital. Even without knowing of the fibroid, Dr Williams considered this course. Knowing of the fibroid, Mr Clements expressed the view that this course was “mandatory”.

My conclusion is not really at variance with the written evidence of Mr Saunders, the Defendant’s expert on gynaecology. He wrote:

“Had the oblique lie persisted I am confident that admission to hospital would have been advised at some stage.”

In saying that Mrs Loraine ought to have been admitted to hospital on 18^th August 2000, had Mr Murray then known that there was a fibroid of more than 5 cm diameter in Mrs Loraine’s lower uterine wall, I am conscious of saying nothing inconsistent with the basic cases on medical negligence cited to me including Bolam v Friern Hospital Management Committee, [1957] 1 WLR 583 at 586 (“the standards of reasonably competent medical men at the time”) and by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority, [1998] AC 232 at 241.

I derive more assistance, however, from Robertson v Nottingham Health Authority, [1997] 8 Med LR 1 in which the Court of Appeal held that the hospital authority was in breach of its duty to the Claimant because inter alia there was no effective communication of information from nurses and midwives, responsible for cardiotocograph traces, and doctors responsible for making decisions relating to the management of the Claimant’s birth. Giving the judgment of the Court, Brooke, LJ said (at 13) that a health authority owes its patient a duty to provide her with a reasonable regime of care at its hospital. He continued:

“If effective systems had been in place at this hospital for ensuring that so far as reasonably practicable communications breakdowns did not occur in connection with such a significant area of a patient’s treatment then the health authority would be vicariously liable for any negligence of those of its servants or agents who did not take proper care to ensure, so far as was reasonably practicable, that the communications systems worked effectively. If on the other hand no effective systems were in place at all - and the evidence is not very complete in this regard – then the authority would be directly liable in negligence for this lacuna.”

By contrast with Robertson v Nottingham Health Authority, this was not a case of a failure of communication, in the ordinary sense of that expression. Upon Mr Murray’s account – which the only account we have – the practice at Arrowe Park Hospital was not to ask each patient, on booking in, whether she had received treatment at the hospital previously, and to retrieve the files of those patients who had answered the question affirmatively. The practice was to rely on the patient to identify potential complications to the gynaecologist and to retrieve files only if it appeared from the patient’s report that these might be material. In agreement with Mr Clements, I find that this was a flawed system; and one that exposed Mrs Loraine to an avoidable risk.

The principle to be applied in a case such as the present one is accurately expressed by the editors of Jackson and Powell on Professional Liability, 6^th ed., 2007 at 13-060:

“Mishaps may occur not because of the negligence of individual doctors or nurses, but because of bad administration or an unsafe system of work. In those circumstances the hospital authority is primarily liable.”

It is submitted on behalf of the Defendant that even if negligence is established the Defendant is not liable to pay compensation because the Claimant’s injury was not reasonably foreseeable: it was not within the scope of the matters which ought to have been within the reasonable contemplation of the Defendant’s staff.

It is on this point that the Defendant relies on the evidence of Mr Saunders which I found unrealistic. By letter dated 29^th April 2008, Mr Saunders stated as follows:

“Pauline Loraine apparently woke at 02.45 and noticed blood or fluid and called an ambulance at that stage. Had this happened while an inpatient at an antenatal ward, I believe the following sequence of events would have occurred. Mrs Loraine would have called a member of staff, probably a health care assistant or a staff midwife. They may have taken a moment to assess the situation and then perhaps called a senior midwife. I think this process would take about five minutes. A more senior midwife would then assess the situation before deciding whether to call a doctor or not. During this time they may have instigated some initial observations including pulse, blood pressure, temperature and they may even have commenced a cardiogram to monitor the foetal heart rate. Again I believe this process would have taken around five minutes. It is normal practice in hospital to call medical staff in a hierarchical way unless there is an obvious major emergency. I believe that around 02.55 there was no overt sign of any major emergency and I suspect the senior house officer would have been asked to attend the patient and that doctor would in turn have made an assessment of the patient before deciding what action to take. If we assume the worst, that is that Mrs Loraine was at that stage showing signs of an abruption, that is a tender abdomen, I suspect the registrar would then have been called to attend. The registrar would obviously have entertained the possibility of an abruption as the diagnosis and would want to have seen evidence of foetal well-being. This evidence is obtained by performing a cardiogram, a minimum required to assess the health of the baby would be a 20-minute tracing.

As you can see from the logic above, I think it would be quite reasonable for ½ an hour to pass for all these actions to be taken and for a suitable length of cardiogram to be measured. If at that stage a decision to perform an urgent caesarean had been taken, then current standards assume that this must be done within ½ an hour and this is an acceptable standard. This is the basis for my belief that delivery may not have taken place before 0345 even if Mrs Loraine had been an inpatient …”

Mr Clements retorted that the scenario described by Mr Saunders does not correspond to the facts of this case. His evidence was that if Mrs Loraine had been admitted to hospital that would have been for the purpose of avoiding a specific major emergency. Had Mrs Loraine woken up in hospital, as she did at home, with a gush of blood over her legs and clots of blood on the bed

“every midwife, however inexperienced, would have said ‘I have a patient with APH’ (meaning acute partum haemorrhage) and she would have been transferred to the registrar for immediate caesarean section.”

Even making allowance for the fact that Mr Clements is no longer in daily practice in hospital, whereas Mr Saunders is in such practice, I have no hesitation in preferring Mr Clements’ evidence on this point. I consider it to be improbable that five members of a clinical team would have been called in sequential and hierarchical order, each of them taking time to assess the situation, while Mrs Loraine suffered a massive loss of blood and her infant suffered asphyxia. Indeed, if the hospital had conducted itself in the way that Mr Saunders contemplates, it would have been in dereliction of its duty.

The manner in which the hospital’s authorities would have acted, had Mrs Loraine been an in-patient, can be gauged by the way in which they did in fact act when she summoned the ambulance at about 02.45 on 22^nd August 2000. At that point it was evident to her and to her husband (neither of whom has medical training) that they were confronted with an emergency. The ambulance crew perceived the emergency with sufficient clarity to administer fluid to Mrs Loraine intravenously, to replace her blood loss and to rush her to hospital. (There was a suggestion, although no direct evidence, that they would have sent a message to the hospital by radio to have an operating theatre ready for their arrival). This was not the situation envisaged in Mr Saunders’ report (“signs of an abruption, that is a tender abdomen”). The abruption had occurred. A registrar performed an emergency caesarean section with commendable swiftness. The entire time taken between Mrs Loraine’s arrival in the hospital and the delivery of her child was 58 minutes. If there had been a saving of the time taken for the ambulance to travel to Mrs Loraine’s house and back to hospital, the Claimant would have been born at about 03.30 but certainly no later than 03.38. By the Defendant’s admission, in that event he would have been born uninjured.

The Defendant next argues that even if it was negligent and if such negligence caused the injuries of which the Claimant complains, the Defendant could incur no liability because the Claimant’s injuries were caused by a mechanism which was not reasonably within the contemplation of those caring for Mrs Loraine on 18^th August 2000 when it is alleged her admission was mandatory for entirely extraneous reasons. If her admission was mandatory on that date, this could only be because there was a foreseeable risk of cord prolapse. Neither Mr Murray nor Dr Williams nor any other servant or agent of the Defendant could or should have contemplated that Mrs Loraine might suffer a massive placental abruption.

The liability of a tortfeasor towards a claimant who has suffered injury in consequence of an unforeseeable manifestation of a foreseeable danger is a phenomenon with which these courts are familiar. The editors of Clerk and Lindsell on Torts (18^th ed., 2000, Vol I p. 379 express in the following words the principle to be deduced from The Wagon Mound (No 2) [1967] 1 AC 617:

“as long a some damage, , however slight, of a particular kind was foreseeable to the person or property of the claimant, he can recover for the full extent of it though neither the extent nor the precise manner of its incidence was foreseeable”.

The proposition that a claimant can recover when the precise manner of the incidence of the damage is not foreseeable is illustrated in the famous case of Hughes v Lord Advocate [1963] AC 837 where employees of the Post Office, in breach of their duty, left a manhole uncovered but placed paraffin lamps around it. In those circumstances it was foreseeable that a child might suffer burns; and the claimant did suffer burns, although the mechanism by which he did so was entirely unforeseeable: he climbed down the manhole and on ascending knocked over a paraffin lamp which caused an explosion. Lord Reid stated in part at 849:

“The appellant’s injuries were mainly caused by burns and it cannot be said that injuries from burns were unforeseeable … No doubt it was not to be expected that the injuries would be as serious as those which the appellant in fact sustained. But a defender is liable although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.”

In the present case, the damage suffered by the Claimant does not differ in kind from what was foreseeable. The damage foreseeable in the event of a cord prolapse is precisely the same in kind as the damage suffered by reason of the placental abruption. That damage is cerebral palsy in consequence of foetal asphyxia.

The principle illustrated by Hughes v Lord Advocate has been applied in several cases involving clinical negligence. Of particular relevance to the present case is Wisniewski v Central Manchester Health Authority, [1998] PIQR 324 where the claimant suffered cerebral palsy as a result of partial strangulation by an umbilical cord during childbirth. The judge found that the clinician was negligent in failing to respond to an abnormal cardiotacograph trace, which ought to have led the clinicians to perform a caesarean section. The harm that was to be foreseen as a consequence of the failure to respond to the cardiotacograph reading was cerebral palsy. That was the harm suffered in the case, although the mechanism leading to that harm was not the foreseeable consequence of the negligence.

Likewise in Hepworth v Kerr, [1995] Med LR 139 the anaesthetist’s negligence inducing hypotension caused the patient to suffer anterior spinal artery syndrome: an unforeseeable outcome. The anaesthetist was however liable since the risk of major organ under-perfusion was foreseeable. Mackinnon J stated:

“The mechanism, the source of danger or the risk, whichever way it is put, was the same,”

Against this the Defendant relies on Brown v Lewisham, [1999] Lloyd’s LR Med 110 at 118 where Beldam LJ, after noting that a doctor is not a clairvoyant, stated that

“it must be shown that the injury suffered by the patient is within the risk from which it was the doctor’s duty to protect him. If it is not, the breach is not a relevant breach of duty.”

As I read it, however, that passage is not to be taken to imply that a doctor or hospital having a duty to protect a patient from a particular risk (such as cerebral palsy) is excused of liability where that risk manifests itself in consequence of a mechanism which was beyond the defendant’s contemplation.

The Defendant also relies on R v Croydon Health Authority, [1998] Lloyd’s LR Med 44 in which a radiologist, having viewed the plaintiff’s X-ray for the purpose of determining her fitness for employment, failed to diagnose her pulmonary hypertension. She later became pregnant and delivered a child by caesarean section. Warfarin was administered to the plaintiff who suffered menorrhagia and underwent a hysterectomy. Her case was that she would have suffered none of these outcomes if the radiologist had diagnosed her disorder correctly.

The Court of Appeal, although accepting that pregnancy was a foreseeable consequence of the mis-diagnosis, concluded that damages were not recoverable for the birth of a healthy child and that there was no sufficient connection between the plaintiff’s pregnancy and the radiologist’s breach of duty. This was the context in which Chadwick, LJ used the language on which the Defendant now relies:

“causation and remoteness are each aspects of the same problem: to what extent should the person found or admitted to have been careless be responsible for the consequences of his carelessness. The consequences must be foreseeable; but they must also be of such a nature that the law regards it as fair, just and reasonable to impose on the person who has been careless liability to compensate the person harmed for the actual harm suffered.”

I do not find in that language anything of substance to assist the present Defendant. In this case the consequence of the negligence was foreseeable even if the mechanism bringing it about was not. One can see why Chadwick LJ considered that it was not fair, just and reasonable to impose on the Croydon Health Authority liability to compensate the plaintiff in the case before him. In Chadwick LJ’s words:

“I think it essential to keep in mind that the relationship between the plaintiff and the health authority was that of prospective employee and employer. There was nothing in the evidence before the trial judge to suggest that the relationship between the plaintiff and her prospective employer had anything to do with whatever plans the plaintiff and her husband may have had for starting a family”.

In the present case, on the other hand, the relationship between the Claimant and the health authority was that of a patient and the managers of the hospital that had assumed responsibility for the management of her pregnancy. The management of that pregnancy entailed taking such steps as were reasonable to guard against the risk of cerebral palsy in the infant.

The third case on which the Defendant relies is Thompson v Bradford, [2005] EWCA Civ 1439. In that case the claimant was a child named Hamish whose parents took him to the surgery of a general practitioner, Dr Bradford, for immunisation at a time when Hamish had a perinatal abcess. Subsequently Hamish underwent surgery to drain the abcess and developed a vaccine strain of polio. It was alleged that Dr Bradford was liable for the contraction of polio because he had failed to advise the postponement of the immunisation. The contraction of polio was not a foreseeable consequence of the immunisation. As the present Defendant rightly observes, it was held in Thompson v Bradford that there was “no relevant breach of duty”. The only relevant breach of duty would be one that would render Dr Bradford liable for the contraction of the polio. But the only foreseeable consequence of the failure to advise against immunisation was the discomfort that Hamish might suffer from an adverse reaction to it. In the present case, there was a relevantbreach of duty. The breach was relevant because its foreseeable consequence was the exposure of the Claimant to cerebral palsy, although the route by which the Claimant came to suffer that outcome was not the same as the route that was to be foreseen at the time of the breach.

For these reasons I have concluded that the Defendant ought to have disclosed to the gynaecologists treating Mrs Loraine the records of her treatment in the same hospital earlier. Had this been done, the clinical and medical staff would have diagnosed the fibroid in Mrs Loraine’s uterus at some stage prior to 18^th August 2000. Having made that diagnosis, the gynaecologists charged with the management of Mrs Loraine’s pregnancy ought to have admitted her to hospital on 18^th August 2000. Had this course been taken the Claimant would not have sustained the injuries that are the subject of the present claim.

Accordingly there will be judgment for the Claimant on the question of liability. The issue of quantum will be a matter for further judgment, if not resolved by agreement between the parties.