Tippett v Guy's & St Thomas' Hospital NHS Foundation Trust

This is the hearing of a trial on liability in relation to the claim made by Joshua Tippett (“Josh”) acting by his mother Karyn Tippett (“Mrs Tippett”) against Guy’s & St Thomas’ Hospital NHS Foundation Trust (“the NHS Trust”). This case raises unusual disputes of fact between the parties about who was responsible for disconnecting and then reconnecting a Cardio-tocographic trace (“the CTG trace”), and also raises issues about the proper interpretation of CTG traces.

Josh was born on 8 November 2005, and is now 9 years old. Josh suffered four limb cerebral palsy, and has significant learning difficulties and continuing epilepsy. He will be dependent on care for the rest of his life. Josh managed to attend part of the first day of the trial.

Josh’s condition was caused by brain damage at the time of birth. This was hypoxic (lack of oxygen) ischaemic (inadequate supply of blood) encephalopathy (damage to the brain). It is common ground that the reason for the inadequate supply of oxygenated blood was probably umbilical cord compression meaning that at about 1353 hours on 8 November Josh’s head trapped his umbilical cord against his mother’s pelvis, reducing the supply of blood so that brain damage was suffered from 1403 hours. An emergency caesarean was carried out, and Josh was born at 1422 hours.

By the time of closing submissions, the contentions on behalf of each party had been refined. I am very grateful to both Martin Spencer QC and Derek Holwill on behalf of Josh, and Philippa Whipple QC on behalf of the NHS Trust for their submissions and assistance.

The essential submissions on behalf of Josh were that: the CTG trace taken between 1108 and 1155 hours on 8 November 2005 showed two “decelerations” of fetal heart rate (“FHR”) and should have led to a medical review at 1155 hours, as opposed to the discontinuance of the trace by the midwife; alternatively because the CTG trace up till 1155 hours was not reassuring, the CTG trace should have continued after 1155 hours until about 1220 hours when there should have been a medical review because the CTG trace would have continued to have been non-reassuring; the medical review (either at 1155 or 1220 hours) would have recommended continuing with the CTG trace with advice that if there was a further deceleration Josh should be delivered by caesarean section; the continued CTG trace would have shown either further decelerations or continued to be non-reassuring; a decision to deliver by caesarean section would have been taken; delivery would have been effected before 1403 hours, which was a time before the brain damage following the umbilical cord compression occurred.

The essential submissions on behalf of the NHS Trust were that: the CTG trace between 1108 and 1155 hours did not justify a medical review, only further monitoring; further monitoring could not take place because Mrs Tippett had removed her CTG trace and left her room; when Mrs Tippett returned to the room the CTG trace was reconnected at 1331 hours; the CTG trace was continuing at 1353 hours when the umbilical cord compression occurred; everyone had reacted properly to that event and an emergency caesarean was carried out; even if monitoring had been continued between 1155 hours and 1331 hours, Josh would not have been born before 1403 hours.

In these circumstances the critical disputes between the Claimant and Defendant relate to: (1) who removed the CTG monitoring equipment at 1155 hours; (2) what the 1105 to 1155 hours CTG trace showed; (3) what a continuing trace after 1155 hours would have shown; (4) what would have been the response to any continuing CTG trace; (5) whether Josh would therefore have been born before 1403 hours.

The factual disputes concern a period between 1108 hours and 1403 hours on 8 November 2005, some 8 years and 4 months ago. I should add that the usual difficulties in attempting to resolve relevant disputes of fact have been increased by three matters. First, pre action correspondence was first exchanged in February and November 2009, which was between 3 and 4 years after the relevant events. It was in that exchange of correspondence that the dispute of fact about who had discontinued the CTG trace at 1155 hours crystallised, and I was shown, medical notes apart, no contemporaneous documents, or documents or statements produced nearer to the relevant events than the witness statements exchanged in the action. Secondly the original medical notes were scanned, and then shredded, meaning that everyone has been working only from photocopies. This is relevant because questions were raised about the times at which notes had been made, and altered, and because the notes in some places have been overwritten. Thirdly it became perfectly apparent that witnesses on both sides had received proper assistance in compiling witness statements and had been referred to relevant notes and documents. However skilful cross-examination on both sides revealed that some relevant evidence was based on what witnesses thought was likely to have happened in the light of documents shown to them when the statements were being prepared, or what witnesses had now convinced themselves must have happened, rather than on any reliable recollection.

This last point was particularly marked in relation to the evidence given by Mrs Tippett and Martin Tippett (“Mr Tippett”) about the circumstances in which the CTG trace had been removed, but it also appeared from the evidence given by Midwife Stella Nanseera (“Midwife Nanseera”) about the time at which Midwife Nanseera had entered Mrs Tippett’s room after the onset of bradycardia (deceleration of the fetal heart rate) at 1353 hours.

The relevant principles to be applied are common ground between the parties, and I am therefore able to summarise them very shortly. The Claimant has the obligation to show, on the balance of probabilities, both a breach of duty and that the breach of duty caused loss.

The NHS Trust is vicariously liable for the actions of the relevant midwives against whom complaint is made. A midwife is liable if she fails to act with the reasonable care and skill expected of a reasonable, prudent and competent midwife. A midwife does not act in breach of duty if the midwife acts in accordance with a proper and responsible practice merely because there is a body of opinion which takes a contrary view.

Josh was the first child for Mrs Tippett. Although it was said that she was well obstetrically until 33 weeks of pregnancy Mrs Tippett had suffered two miscarriages beforehand and said, and I accept, that she was extremely anxious throughout her pregnancy.

Mrs Tippett was not a smoker or a drinker. Although Mrs Tippett did have a BMI of 35 and her father was diabetic, testing showed that Mrs Tippett’s glucose tolerance was within normal range.

Mrs Tippett was seen by midwives at 7, 12, 13, 14 and 15 weeks. None of these attendances revealed any problems, but the number of visits illustrates Mrs Tippett’s concerns about her pregnancy.

Mrs Tippett had moved into her parents’ property in Southend, and her brother, Robert Clark junior had moved out, so that she could be cared for by her parents, who were both available to help.

Mrs Tippett’s father, Robert Clark senior (“Mr Clark senior”) said that Karyn Tippett had been 18 years old when she had married Martin Tippett in 2003, and Josh had been born in 2005. He recorded that Mrs Tippett had had two previous miscarriages but that she had unfortunately had a difficult pregnancy. Mrs Tippett had had difficulty with the stairs and a sofa bed had been set out for her in their downstairs and Mrs Tippett had started to wear a pelvic girdle. Mrs Tippett had become more nervous about things after she had discovered that her baby was suffering from Ebstein’s anomaly.

Mrs Tippett was seen by a consultant on 28 July 2005, and again by a midwife at 21 weeks. At 22 weeks on 7 August Mrs Tippett had had a fall. Mrs Tippett had suffered some abdominal pain but was pain free when seen, and the baby’s heart rate was satisfactory. Mrs Tippett was seen by a midwife 24, 27 and 28 weeks and Mrs Tippett’s pregnancy progressed.

At weeks 30 and 32 the baby was cephalic (head first), and blood pressure was within a normal range and urinalysis clear on both occasions.

Mrs Tippett was booked to give birth at Southend Hospital with a due date of 8 December 2005. On 20 October 2005, when she was 33 weeks, Mrs Tippett was admitted to Southend General Hospital with abdominal pain and tightenings.

On 21 October 2005 steroids were given to assist with the maturing of the baby’s lungs. Mrs Tippett was allowed home on 24 October 2005 and returned to hospital every few days for checks on the amniotic fluid level.

On 27 October 2005 Mrs Tippett was concerned that her waters had broken, and she was admitted to hospital, where it was confirmed that she had suffered pre-term premature rupturing of the membranes (“PPRM”). A CTG trace showed some tachycardia (excessive heartrate). On examination there was no evidence of spontaneous rupture of membranes, but this was then confirmed when there was a further loss of liquid.

Further CTG traces obtained the following day showed some tachycardia but were essentially reassuring. An ultrasound on 29 October 2005 showed satisfactory fluid levels and fetal movements. A further CTG trace was reassuring, and Mrs Tippett was to return home for conservative management of the rupture.

On 31 October 2005 a potential heart abnormality was noted. Mrs Tippett was sent to an appointment at King’s College Hospital, London, where two scans confirmed that her baby suffered from moderately severe Ebstein’s abnormality, a congenital condition which involves an enlarged heart functioning below an optimum level. It was recommended that her care be transferred to St Thomas’ hospital. At Southend Hospital there was a discussion about the lack of facilities to cope with this abnormality and Mrs Tippett was also advised to go to St Thomas’ in London if she felt she was in labour. It is common ground that by this time Mrs Tippett’s pregnancy was designated high risk because of her PPRM. The evidence established that the risks were: first of infection through the ruptured membranes; and secondly premature delivery. These risks would indicate early delivery, but the longer the pregnancy could be successfully managed the greater would be the maturity of the baby at birth with all the attendant benefits of such maturity.

On 3 November 2005 in the morning Mrs Tippett thought that her labour had started. She went to Southend Hospital. She was told that it had not started. There was some discussion about how Mrs Tippett should get to St Thomas’ Hospital, and in the event it was agreed that she should travel by public transport the next day to arrive in the afternoon. The evidence showed that management of the pregnancy when there is PRRM at this stage consists largely of monitoring of the baby through a daily CTG trace, and of the mother, by checking that she is well. This can be done as an outpatient, but once Mrs Tippett was under the care of St Thomas’ in London the distances meant that she was an inpatient, spending much of her time waiting.

Robert Clark Junior (“Mr Clark junior”) is Mrs Tippett’s brother. He recalled that Mrs Tippett had had a difficult pregnancy, would spend days on bed rest because she suffered from terrible palpitations and breathlessness. Mrs Tippett had moved into her parent’s house at about 3 to 4 months into the pregnancy so that they could help her with the difficulties she was experiencing. He had accompanied his sister to see the fetal cardiologist at Kings College Hospital when Ebstein’s abnormality had been confirmed. On the 3^rd November 2005 when Mrs Tippett was suffering from abdominal pains and thought she was in labour he called an ambulance and told them they had to go to St Thomas’ however Mrs Tippett was sent to Southend Hospital because it was the nearest delivery suite.

Mrs Tippett travelled to London on public transport with her brother Mr Clark junior, and arrived at St Thomas’ hospital in the afternoon of 4^th November. Mrs Tippett confirmed that on arrival on 4^th November she had been asked about plans for a normal vaginal delivery. Mrs Tippett said she had been told in Kings College that she would have a caesarean but St Thomas’ had explained something different. She didn’t remember agreeing to the change and her recollection was that she had still thought that she was going to have a caesarean section because of the baby’s heart problems.

Mr Clark junior said that they had been met by a consultant registrar who confirmed that Mrs Tippett was expected and that the consultant was away on holiday. The delivery plan was to have a natural delivery.

There was a dispute of fact between Mr Clark junior and Midwife Nanseera about whether Midwife Nanseera had met Mrs Tippett on 4^th November 2005.

Mr Clark junior stated that Midwife Nanseera had introduced herself, noted that she was newly qualified, and had seemed inexperienced. Mr Clark said that the midwife introduced herself to him as midwife Stella, and that he chatted to her and that she complained that she’d been on her own the whole day. He said this conversation had taken place in the postnatal ward because there were no available beds on the antenatal ward. He was asked whether he might have misinterpreted the conversation. He said he could be wrong but he was pretty certain that he had been Midwife Nanseera, but also accepted that it may not have been her.

Midwife Nanseera said that she had qualified as a nurse in Uganda in 1994 and then trained as a midwife at Mulago Hospital in Uganda. She’d qualified as a midwife in 1998 and come to work in the United Kingdom in 1999, and had obtained her United Kingdom midwifery qualifications in 2003 from King’s College London. Midwife Nanseera had then taken a permanent post at St Thomas’ Hospital as a band F midwife and that was a position in which she was working in November 2005. Midwife Nanseera denied having met Mrs Tippett before 8 November.

Not much turns on this dispute of fact, but I accept Midwife Nanseera’s evidence that it was not her that had met Mrs Tippett on the afternoon of 4^th November 2005. This is because there are no notes showing that Midwife Nanseera was looking after Mrs Tippett at that time, and because Midwife Nanseera’s main place of work was at the Hospital Birth Centre, and not the other wards. Midwife Nanseera had been asked to assist on the antenatal ward on 8^th November because there was a shortage of one midwife on that day, and she said that she had not worked on the antenatal ward for a period of about 2 weeks before 8^th November. I also note that Mr Clark junior had suggested in his statement that the meeting on the 4^th November had occurred on the postnatal ward, and there was nothing to suggest that Midwife Nanseera worked on that ward. Nothing turns on whether Mrs Tippett was placed first on the antenatal or postnatal ward, and it is common ground that by the time the relevant events of 8 November 2005 occurred, Mrs Tippett was on the antenatal ward.

The notes for the 4 November 2005 show that the plan was that if the baby remained cephalic there would be a vaginal delivery with labour induced, with a delivery if there was evidence of infection, with a caesarean section for “the usual obstetric” considerations. Later notes show that it was planned that delivery should occur at 36 weeks gestation. The notes recorded that Mrs Tippett agreed to the plan, and although I accept that Mrs Tippett did not recall agreeing to it, I find that she did. This is because the notes recorded Mrs Tippett’s agreement, and her subsequent treatment was consistent with that plan and her agreement to it.

Mrs Tippett was an in-patient on the antenatal ward from 4 November 2005. From 4 November 2005 CTG’s were taken in the morning to check on the baby’s condition. The evidence showed that Mr Tippett stayed with Mrs Tippett over this period, sleeping on some type of camp bed in Mrs Tippett’s room.

The CTG trace for 6 November 2005 assumed some significance in the expert evidence so I will address it briefly. Before I do so it is necessary to say a little bit about CTG traces.

The CTG traces in this case were taken on a Philips Machine, and I was provided with a photograph of one such machine. The machine produces two traces on a sheet of graph paper, which is set out in squares. Each square represents a period of time of 30 seconds. At the top of the graph the trace measures the baby’s FHR. There are 4 features of a normal FHR that are relevant to note. The first is the baseline or beats per minute (“bpm”) of the FHR, which should be between 110-160 bpm. The second is variability, which should be 5bpm or above. The third should be the absence of decelerations, which is the slowing of the FHR. The fourth should be the presence of accelerations, which is the occasional increase of the FHR.

At the bottom of the graph the trace records the mother’s uterine tightenings. I should record that the evidence showed that by the third trimester all pregnant women will be having “tightenings”. The distinction between “tightenings” and “contractions” was not clearly defined in the evidence before me, and seemed to be related to the mother’s subjective feelings of pain.

The National Institute for Clinical Excellence (“NICE”) have produced guidelines relating to the use of CTG monitoring equipment. Those guidelines were for intrapartum (in labour) fetal surveillance, but it was common ground that they were the best available guidelines for antenatal monitoring. The guidelines (at tables 3 and 4 on page 5) categorised traces as being “normal”, “suspicious” or “pathological”. The distinction between the categories depended on whether the four features were “reassuring”, “non-reassuring” or “abnormal”. If all four features were reassuring, the trace would be “normal”. If one feature was non-reassuring, but the other three were reassuring, the trace would be “suspicious”. If two or more features were non-reassuring or there was one or more abnormal category the trace would be “pathological”. In evidence both the midwifery experts, Fiona Sommerville RGN RM MA MSc (“Ms Sommerville”) on behalf of the Claimant and Jennifer Fraser MSc RM RN DPSM (“Ms Fraser”) on behalf of the Defendant, and the obstetric experts, Mr Gerald Jarvis MA(Oxon) FRCS (Ed.) FRCOG (“Mr Jarvis”) on behalf of the Claimant and Derek Tuffnell MB ChB FRCOG (“Mr Tuffnell”) on behalf of the Defendant, tended to refer to a trace being reassuring or non-reassuring and did not refer to “normal”, “suspicious” or “pathological”. There was also reference to “sinister” traces, which appeared to be the same as “pathological” traces.

It is necessary to record the definition of deceleration, which was given at page 16 of the NICE guidelines. A deceleration was defined as “transient episodes of slowing of FHR below the baseline level of more than 15 bpm and lasting 15 seconds or more”. There was a dispute between Ms Sommerville and Mr Jarvis on the one hand, and Ms Fraser and Mr Tuffnell on the other hand about what constituted a deceleration. It was common ground from the evidence that, whatever the formal definition of a deceleration, the experts did tend to look at the patterns on the trace and use their own experience to determine whether there was a deceleration. The experts also made it clear that they would not get out rulers to check what was the baseline level, or to measure whether 15 seconds had elapsed. However it was also clear that both rival sets of experts did make an appeal to the guidelines as supporting their respective positions. I was also provided with some screenshots from the “K2 training package”, an interactive training programme which was used to assist in the training of midwives, among others, in the recognition of decelerations on CTG traces. I will return to the issue of decelerations when considering the CTG traces on 8 November 2005.

The first trace taken on 6 November 2005 was considered to be non-reassuring. The notes show that a “SHO” (senior house officer) was asked to review it. At some later stage the CTG was reconnected, and a reassuring trace was obtained. It should be recorded that the medical notes at this stage have some later overwriting on them, which makes it very difficult to work out when the CTG was reconnected. On the balance of probabilities I find that it was after the SHO review. This is because it is common ground that the second CTG trace on the 6 November 2005 was reassuring, and it would have made no sense to have asked for a SHO review if there had been a reassuring trace before the SHO was called.

The 7^th November 2005 was another waiting day in hospital for Mrs Tippett. The CTG trace was carried out, and nothing of relevance was noted in the medical notes.

On the 8^th November Mrs Tippett was in a side room on the antenatal ward. Mrs Tippett said that so far as the 8^th November was concerned she could not now say with total certainty when exactly things happened that day. Mrs Tippett said that she was able to say with certainty that the version of events of that day put forward in the Defence was simply not correct.

Mrs Tippett said that she remembered waking up that morning but with no specific recollection as to time. The notes show that at 0800 hours it was recorded that there had been no problems overnight, that Mrs Tippett was asleep, and that Mrs Tippett was left undisturbed. The note asked for the Thames Team to see Mrs Tippett that day.

In her statement Mrs Tippett said she remembered being very anxious that day. Mrs Tippett said that when she woke on the 8^th November she had pain caused by what in her mind were contractions. Mrs Tippett said that it was inconceivable that she would have gone downstairs at 0835 hours with Mr Tippett. Mrs Tippett said that she remembered her mother and father arriving shortly after she had had breakfast, saying that she remembered this because they always arrived at roughly the same time every day and she said that before the arrival of her mother and father no one had come to see her except for the member of staff handing out breakfast.

Mr Clark senior gave evidence that he arrived with his wife at the hospital each day at about the same time over this period of admission, having travelled from Southend by public transport, and then left after the rush hour had died down. He said that he arrived at the hospital at about midday each day.

Mrs Tippett said she was not comfortable because she was 35 weeks pregnant, she required help to get off the bed, and to go to the toilet. She hadn’t asked for help with the pain because the pain that she felt was the normal pain from pregnancy, as in back pain.

The evidence from Mrs Tippett when questioned, and her father Mr Clark senior, showed that Mrs Tippett did get out and about, and get at least as far as the lift bank. The evidence also showed that Mr Tippett used to go in the lifts downstairs to have a cigarette. Mrs Tippett said that she did walk to the lift on occasions to say goodbye to visitors and on some days got dressed.

On the 8^th November Mrs Tippett accepted that she was waiting and bored and that Martin had stayed overnight. She didn’t accept that at 0835 hours she had said she was going to go downstairs. She hadn’t said that she was in a lot of pain to anyone but she hadn’t said she was feeling fine. She said that she would stand by her statement.

The reason for the concentration on 0835 hours is that there is a note timed at 0835 hours, made by a midwife who was not identified, which (with punctuation added and abbreviations expanded) was that “Met couple in corridor – going to go downstairs. Karyn feeling fine – no complaining of tightening now. Awaiting Mr Maxwell’s review this morning”. Mr Maxwell was the consultant for the antenatal ward. Later evidence showed that Mr Maxwell was away on holiday until Friday of that week.

In her second witness statement Midwife Nanseera said that it was not her recollection that Mrs Tippett was complaining of severe pain, nausea or contractions on the 8^th November and that if she had been, Midwife Nanseera would have carried out an abdominal palpation to access the strength and frequency of these and would have reported to the doctors.

It is clear that, as Mrs Tippett part acknowledged, she had no reliable recollection of timings on the relevant day. That is not in the least surprising given the passage of time, the traumatic events of the day and the fact that Mrs Tippett had an emergency general anaesthetic. Mrs Tippett’s evidence about the arrival of her parents is inconsistent with Mr Clark senior’s evidence about his estimated arrival time. Mr Clark senior’s evidence is much more likely to be correct because it is consistent with expected travel times from Southend without a very early start.

I also consider it more likely than not, and find, that Mrs Tippett was up by 0835 hours, was seen in the corridor, did report the fact that she was feeling fine, and was not complaining of tightening at that stage. Whether it was Mr Tippett alone, or both Mr and Mrs Tippett, who were intending to go downstairs in the lift is not necessary to decide. I make this finding because the note is clear, and it seems to me that Mrs Tippett is very likely to have forgotten relevant events.

I therefore do not accept that Mrs Tippett thought on 8 November 2005 that she was going into labour in the morning of 8 November 2005. I consider it more likely than not that Mrs Tippett has conflated her memory of 8 November 2005, which was starting off as another waiting day on the antenatal ward, with the events of 3 November 2005, when Mrs Tippett did think (albeit wrongly) that she had gone into labour. I note that Mr Tippett did not say that he thought that Mrs Tippett was in labour on 8 November 2005. Although Mr Clark senior said that Mrs Tippett had gone into labour, this was inconsistent with the clear note in the medical records, and the absence of any actions which would have been taken by Midwife Nanseera if it was thought that labour had commenced. I also consider it very likely that if Mr Clark senior had thought that Mrs Tippett was in labour he would have arrived before midday. My impression of Mr Clark senior’s evidence was that he did not have any clear recollection of the relevant events, again for very understandable reasons, beyond the facts that: Mrs Tippett was having a difficult pregnancy; that he was doing all that he could to assist; and that he considered the way in which Mrs Tippett had been taken to theatre (which he described as being dragged) was wrong. I will address this last point below.

Midwife Nanseera gave evidence confirming her witness statement. In her witness statement she said she had “some recollection” of Mrs Tippett and events of the 8^th November 2005 as it was unusual for a mother being cared for on an antenatal ward to suffer a sudden drop in fetal heart rate and require an emergency caesarean. However in evidence Midwife Nanseera said she thought her memory of events was “very good”. It seemed to me that Midwife Nanseera’s differing assessments about how much she recollected of the relevant events was simply another example of confusing accurate recollection with understandings, that can become quite fixed, as a result of reconstruction. For example in her first witness statement at paragraph 12 Midwife Nanseera said that “at around 13.53 when I was walking from cubicles 14 to 17 back in to Karyn’s side room I heard the fetal heart rate dropping to around 60bpm just as I was outside Karyn’s door. I am instinctively able to recognise a reduced fetalheart rate due to my experience as a midwife. I rushed in to Karyn’s room leaving the door open.” Consistently with this Midwife Nanseera had stated at paragraph 9 of her second witness statement that she had referred to writing a time of going into Mrs Tippett’s room at 1356 in the notes as an estimate, corrected to 1353 hours, which she could time because “I am sure that I arrived in the room with Karyn just after the bradycardia started as I heard the fetal heart rate decelerating when I was outside the room”. However in re-examination, Midwife Nanseera thought that the time that she had gone in to the room was perhaps closer to 1356 hours than 1353 hours. It was not explained how this related to her earlier witness statements, and as a result I formed the distinct impression that there were parts of Midwife Nanseera’s witness statement that had been reconstructed with the benefit of the notes, rather than representing any genuine recollection. Again, given the passage of time, this is not surprising, but it does mean that it is necessary to examine the relevant evidence carefully.

Midwife Nanseera said that she had begun her shift on the 8^th November at 8 o’clock in the hospital birth centre where she usually worked caring for mothers in active labour. However at around 10 o’clock she was asked by the midwife in charge to work on the antenatal ward as there was only one midwife on duty that day. Midwife Nanseera went down to the antenatal ward and liaised with midwife Marisa Alvarez Sanchez (“Ms Sanchez”). There were usually 19 women on the antenatal ward and the care was split. Ms Sanchez had started reviewing the women in the lower part of the ward, bed 1 to 10, and Midwife Nanseera started reviewing the mothers in bed numbers 11 to 18.

Midwife Sanchez stated that she’d qualified as a nurse in Spain in 2001 and worked for some time in cardiac medicine. She’d qualified as a midwife in May 2005 at Canterbury University and had transferred to work for Guy’s and St Thomas’ Hospital NHS Foundation Trust in June 2005. In November 2005 she was working as a grade F midwife. Ms Sanchez said on the 8^th November she was working on the day shift and started work at 8am. She was allocated the care of mother’s in beds 1 to 10 and that Midwife Nanseera had been working on the antenatal ward caring for the mother’s in beds 11 to 19.

It appears that Midwife Nanseera got around to seeing Mrs Tippett at about 1108 hours. Midwife Nanseera said that she noted that Mrs Tippett was 35 weeks plus 3 days pregnant, had a history of spontaneous rupture of membrane since 27^th October 2005 but there was currently no evidence of leaking liquor (another word for amniotic fluid) or bleeding. Mrs Tippett was due for induction at 36 weeks and under the review of Mr Maxwell.

Midwife Nanseera put on the CTG trace and the trace appears in the bundle. Recording started at 1108 hours and mother’s observations were carried out showing normal pulse rate, blood pressure and temperature. A note was made by Midwife Nanseera “Care by midwife Nanseera midwife. CTG in progress. FHR 159 bpm via CTG”. The entry was timed at 1108, but had been overwritten. It appears that the original time had been 1006. Midwife Nanseera gave evidence that she had made a mistake about the time, and had then overwritten it when she had seen the CTG trace. It was suggested to Midwife Nanseera that she had written this after the event, which she denied.

I find that Midwife Nanseera did make a mistake on the timing putting 1006 hours, instead of 1106 hours, and later corrected this to the time of the trace at 1108 hours. I make this finding because the evidence establishes that Midwife Nanseera had started work after her late transfer to the antenatal ward at about 1000 hours. She had seen the first group of patients in the hour after 1000 hours, and Mrs Tippett must have been the first patient to be seen by Midwife Nanseera after 1100 hours. Making a mistake by an hour is exactly the sort of mistake that could be made. Secondly the record of FHR at 159 shows that the entry must have been made very shortly after it started, which was when the FHR was at just below 160, and by this time the CTG printout would have shown the time of 1108 hours. Thirdly there would have been no good reason to have put this entry into the notes after the event. It only evidenced what had already appeared on the CTG trace.

I will return to what the CTG trace showed, after setting out my findings about who removed it.

The positive evidence that Midwife Nanseera had removed CTG trace in the witness statements came from Mr Tippett’s witness statement. Mrs Tippett said in her witness statement that she had no clear recollection of who had removed the CTG trace. However the position was reversed in oral evidence with Mr Tippett saying he had no relevant recall, and Mrs Tippett asserting, for a time at least, that Midwife Nanseera had removed the CTG trace.

In his witness statement Mr Tippett had said “I recall that a CTG trace was started in the course of the morning. Whilst I do not recall the precise time, I am aware that the medical records show that it ran from 11:08 to 11:55 hours and that seems right to me. I recall the midwife saying that it was all normal and that she took it off about midday.”

When giving evidence Mr Tippett said that he confirmed the contents of his witness statement dated 17^th June 2013. In cross examination he was taken to three specific passages in his witness statement. He confirmed that the passage in paragraph 12 to the effect that a midwife had said that all was normal and fine before disconnecting the monitoring belt was wrong. He said that the events occurred 8 years ago and he had no recall. He confirmed that he didn’t remember who took the trace off. He did say that “it was not me or my wife”, but he also said “it could have been my wife I suppose so”. Mr Tippett accepted that paragraph 13 of his witness statement, where he had said “as I have said above the midwife had said all was fine” was also wrong because he couldn’t remember. Mr Tippett said he thought it likely that he had been reassured by a member of staff thinking that there would otherwise have been no reason to disconnect. He said the truth was that he couldn’t remember.

Mr Tippett also confirmed that a passage in paragraph 20 of his witness statement in which he had said that “he and his wife had been pretty much left alone until the buzzer was sounded” was not true because he was downstairs smoking at the time. When pressed about who had disconnected the trace he said that it was not him, it was neither his wife nor him, and said that he also couldn’t remember the trace being taken off.

It is not possible to put any sensible reliance on Mr Tippett’s evidence. This is because he gave unequivocal evidence in his witness statement which he confirmed to be true, which he then accepted was not right because he could not recall the reality of what had happened. Mr Tippett was frank enough to accept the reality that he had no recollection in evidence.

As noted above Mrs Tippett said in paragraph 13 of her witness statement that “I have no real recollection of midwife Stella commenting on the CTG being removed or who removed it. I do know that at no point did I leave the ward, especially not to go outside considering the pain and anxiety I was feeling.” When questioned Mrs Tippett accepted that she was playing a waiting game and that when the CTG trace was put on the belts were left for some 40 minutes to an hour with the midwife coming back. She didn’t accept that the midwife would always roll up the belts and put them to the side of the bed. Mrs Tippett had accepted that at some stage the midwife had put the CTG on and that at 1115 hours doctors had seen her, although she said she remembered that vaguely. Mrs Tippett said she remembered on and off throughout the day but had no clear recollection because at the start it was just another boring day. She remembered bits and pieces. She said she had felt ignored during the day and had wanted reassurance.

However Mrs Tippett also said in evidence that she did remember Midwife Nanseera taking the CTG trace off and she was quite sure about that and “that was a constant in her mind”. Mrs Tippett was asked about paragraph 13 of her statement where she said she had no real recollection of who had removed the CTG trace. She accepted that that was not what she had just said, and then said that the CTG had been removed by a midwife or a member of staff, it was a medical professional. Mrs Tippett finally said that the proper answer was that she couldn’t remember who removed the CTG and that the honest truth was that she couldn’t remember. Mrs Tippett said that she knew she didn’t take it off because she “didn’t want to put her baby in jeopardy”. Mrs Tippett denied that she had gone to the lift to see her parents.

It was therefore apparent that Mrs Tippett’s oral evidence about who had removed the CTG trace was not capable of being relied upon. This was because Mrs Tippett went from a position of no recollection at the time of the witness statements, to an assertion that it was Midwife Nanseera who had removed it, and that was a “constant in her mind”, before later accepting that she could not recall.

Mr Clark senior’s recollection of the 8^th November was that Karyn had gone into labour and he had gone straight to St Thomas’ with his wife Elizabeth. Mr Tippett was already there and had been sleeping at the hospital in a sort of camp bed. He said that once he had arrived his wife, Elizabeth, and he had stayed in the room with Karyn for the entire time and he had laid down on the bed that Martin had been using. Mr Clark senior said at paragraph 11 of his statement that “I know that when I arrived on 8^th November 2005 there was no CTG trace running. I was a little surprised about this because Karyn likes to have it on so she can hear the baby’s heart.” Mr Clark senior said he was sure that Karyn wouldn’t have disconnected the CTG to go downstairs to the restaurant and that Karyn was an extremely anxious individual. He said that Mrs Tippett was also in far too much pain to leave the room. He said just getting out of her bed was a struggle for her. He said she might occasionally go for a short walk outside her room, perhaps as far as the lift if someone was going downstairs but at no time when he was visiting did she leave the floor or tell him that she had done so.

Mr Clark senior therefore did not give any direct evidence about who removed the CTG trace, and his evidence about whether Mrs Tippett would have done so can only be inference from facts considered long after the relevant event.

In her evidence Midwife Nanseera said she continued on her ward round attending to other patients, popping in to Mrs Tippett’s room every ten minutes or so to check on her. She thought she checked in at about 11.25, 11.35 and 11.45 but accepted that those were rough estimates. She said that at around midday she had returned to check on Mrs Tippett and found that she was not in her room and that the CTG monitor belt was lying on the bed. She thought the machine had been turned off but wasn’t sure of this. There was no one in the room. Midwife Nanseera said she concluded that Mrs Tippett had left and disconnected the CTG trace. She had gone to check where Mrs Tippett was. She wasn’t in the toilet in her side room and Midwife Nanseera had looked in the patients’ sitting room which was very close to Mrs Tippett’s side room, she wasn’t there. As it was lunchtime Midwife Nanseera thought that Mrs Tippett might have gone down to have lunch with her partner.

Midwife Nanseera denied stopping the CTG at 1155 hours. She said that when she’d returned to the room at about midday there was no person in the room and she found the belt on the bed. She said she had wanted to continue the CTG because it wasn’t reassuring. She accepted that last part hadn’t been said in her witness statement. Midwife Nanseera rejected the account in Mr Tippett’s witness statement to the effect that a midwife commented that the CTG was normal at 1155 hours and took this off with no explanation. Midwife Nanseera said it was normal practice to write on a CTG trace when it was discontinued.

Midwife Nanseera accepted that she didn’t make a note at 1200 hours when she’d found the room empty and thought that she had probably got distracted with other patients. She accepted that at 1340 hours when she’d written up the notes she had also not written about what happened at 1200 hours. Midwife Nanseera said she had noted her plan to continue the CTG and observe closely at some stage between 1108 hours and 1155 hours but then couldn’t find that in the notes pointing only to the reference to the continuing CTG at 1108 hours. When asked why she had not written it down she said the plan was in the back of her head and that she was very busy that morning with 9 patients and doing observations on all. Midwife Nanseera was referred to relevant guidelines which make it clear that accurate note taking is a fundamental part of nursing and an integral part of providing patient care. She accepted that she had not written in the notes that she had found the CTG disconnected and that on review of the CTGs she had found them concerning and that she wanted to continue them. Midwife Nanseera accepted that she was wrong not to do so, but it is fair to note that neither midwifery experts had criticised Midwife Nanseera’s notetaking, notwithstanding the fact that the reports were produced after the conflict in evidence about the removal of the CTG trace had become clear.

Midwife Nanseera described the readings up to 1155 hours as in between not very good and not very bad. She’d seen the notes written at 1315 hours by the doctor to the effect that Mr Maxwell was on holiday but didn’t have any relevant recollection of that. At 1115 hours when the doctors were on the ward round she thought one of the doctors might have been a specific named doctor, but didn’t remember any other names. She accepted that the CTG had not been running for a full 40 minutes before the doctors had come on the ward round, although it is fair to point out that she’d only started the shift at 1000 hours that morning having been transferred over and had been dealing with patients 11 to 17, before turning to Mrs Tippett. Midwife Nanseera denied that she took off the 1155 hours trace on the basis that it had run for 40 minutes which was enough to get an idea. She said that if she was not satisfied she would continue, and she hadn’t been satisfied.

To the suggestion that she had stopped the CTG at 1155 hours Midwife Nanseera had said “I cannot stop a CTG which looks like this” and that she knew what she was doing. She said that the dips had not worried her much but there were no accelerations, and she was continuing to get the relevant picture. She said that Mrs Tippett had not seemed overly anxious to her. Everyone would be concerned for the welfare of the baby. She said she must have said something to Mrs Tippett but she couldn’t remember what she would have said.

It was apparent that when Midwife Nanseera was giving evidence that her pronunciation of some words created some difficulties for counsel’s understanding of some of her answers, and in particular whether she had said “not”, although it was easier for me as I was sitting closer to the witness box. Midwife Nanseera’s written English was sometimes unconventional. For example she had put ‘buzzle’ for “buzzer”. It was also clear to me that Midwife Nanseera did not understand some of the longer questions that she had been asked, and at one time had replied “excuse me my English”. That said I am satisfied that Midwife Nanseera was able to understand the questions when they were asked in shorter sentences, and was certainly able to articulate and write adequately.

My impression of Midwife Nanseera was that she was doing her honest best to recall matters, and it was not suggested otherwise on behalf of the Claimant in closing submissions. I did get the impression that she was happiest giving evidence about matters of fact, rather than discussing generalities, and that her approach to midwifery was linear, in the sense that she was simply attempting to put what she had been taught into practice.

Ms Whipple invited me to find that both Mr and Mrs Tippett had deliberately lied about who removed the CTG trace, suggesting that any other approach would be “benign”. I do not find that Mr and Mrs Tippett were deliberately lying about the CTG trace. It was perfectly apparent that the recollection of honest witnesses can vary over time, as occurred with Midwife Nanseera’s changing recollection about when she had entered the room after the bradycardia. It is also apparent that, because of Josh’s condition and because of the way in which significance was attributed to the stopping of the CTG trace at 1155 hours, both Mr and Mrs Tippett had been asked to concentrate on the removal of the CTG trace which had been routine and unremarkable at the time, but which had assumed substantial importance because of the subsequent opinions of experts. The medical notes allowed a framework to be created for the day, and in these circumstances false recollection becomes an obvious risk. Finally in my judgment the evidence of both Mr and Mrs Tippett was affected by their desire to know that they had not, inadvertently, done anything to contribute to Josh’s condition. I say that because Mrs Tippett expressly said that she knew that she did not take off the CTG because she didn’t want to put her baby in jeopardy. As appears below, I do not consider that, properly analysed, Mr and Mrs Tippett did do anything that contributed to Josh’s condition, but I find that their concern that they might have done has influenced their memory.

However, as noted above, it is not possible to place any sensible reliance on Mr and Mrs Tippett’s recollection about who removed the CTG trace. This is because the truth was, as they both accepted in evidence, that they had no recollection of who removed the trace. I also place no reliance on their continued assertion that they did not individually remove it, and that it must have been a health professional, because that is simply a product of reconstruction.

Mr Spencer submitted that if Mr and Mrs Tippett were not lying, the probabilities were that it was Midwife Nanseera, or another medical professional, who had removed the CTG trace. Mr Spencer made the point that Mrs Tippett would not have wanted to do anything to jeopardise her baby, and I accept that submission. However I do not consider that the removal of the trace by Mrs Tippett, whether to go to the lavatory, to see visitors or to get lunch, was jeopardising her baby. The trace had been running for a period. The baseline rate of the FHR was in normal range, and Mrs Tippett had no reason to think that the CTG was anything other than normal. As appears below, I do not accept that Midwife Nanseera was under any duty to report decelerations, or the fact that the trace was not yet reassuring, to Mrs Tippett.

I do not accept the submission that Midwife Nanseera or another medical professional removed the trace. This is because Midwife Nanseera was in my judgment an honest witness who did have some reliable recollection of the events of that day. One constant feature of Midwife Nanseera’s evidence was that Mrs Tippett had left the room, and Midwife Nanseera had found the CTG monitor belts lying on the bed. I accept that this was a genuine and reliable recollection. It is exactly the sort of thing which would be capable of recall at this remove from the events. I also accept Midwife Nanseera’s consistent evidence that no other medical professional would have removed the monitor without speaking to her, as the treating midwife.

I also note and rely on the fact that, by 1340 hours at the latest (and I will turn to this later), Midwife Nanseera was monitoring the reconnected CTG trace. There would have been no point in doing this if Midwife Nanseera had decided to disconnect the CTG trace at 1155 hours, especially if she had said, as originally suggested by Mr Tippett in his witness evidence, that all was fine. Mr Spencer suggested that one reason for the monitoring at 1340 hours would have been that the reconnected CTG trace was not reassuring, and that Midwife Nanseera might have decided to restart monitoring. While this is possible, I do not accept that as at all likely, and consider that if that had been the position Midwife Nanseera would have had a recollection of that event, and change of her approach, and Midwife Nanseera did not have any.

For all the reasons set out above I find that Mrs Tippett removed the trace. I also find, as appears below, that the removal of the trace did not jeopardise Mrs Tippett’s baby. It became common ground in submissions that if I accepted Midwife Nanseera’s evidence on this point, which I do, the claim would fail. However I have addressed the other matters raised below.

As noted above the main dispute between Ms Sommerville and Mr Jarvis on behalf of the Claimant, and Ms Fraser and Mr Tuffnell on behalf of the Defendant, related to whether the two areas in which the CTG trace showed a decrease of FHR at about 1134 hours and about 1152 hours were “decelerations”, being a non-reassuring feature, or were just dips. Mr Jarvis also ascribed significance to the fact that they followed uterine tightenings at about 1133 hours and 1151 hours, and suggested that the decelerations were caused by cord compression. Mr Jarvis suggested that this cord compression was linked to the bradycardia at 1353 hours because there was a common feature of reduced amniotic fluid, and in support of this late consideration, reference was made to the operation notes at which the emergency caesarean was carried out which showed that there was no amniotic fluid. This suggestion became known as the “single unifying theory”. Ms Fraser and Mr Tuffnell said that there was no significance about these reductions in FHR. They were not decelerations. They could not be linked to the tightenings, because there was no consistent linkage, and there was a delay of onset of reduction in FHR after the commencement of the tightening.

Both Ms Sommerville and Mr Jarvis on the one hand, and Ms Fraser and Mr Tuffnell on the other, referred to their experience in interpreting CTG traces and patterns as primary support for their positions, but all dealt with the NICE definition in evidence, developing written evidence. These exchanges demonstrated a difference of interpretation about the proper meaning of the definition. Ms Sommerville and Mr Jarvis effectively contended that there was a need for a deceleration of 15 bpm from the baseline, and a delay of at least 15 seconds before the FHR returned to the baseline. Ms Fraser and Mr Tuffnell agreed that there was a need for a deceleration of 15 bpm from the baseline, but with a delay of at least 15 seconds before the FHR returned to above 15 bpm below the baseline.

Having considered the definition in the NICE guidelines (“transient episodes of slowing of FHR below the baseline level of more than 15 bpm and lasting 15 seconds or more”) it seems to me that the interpretation of Ms Fraser and Mr Tuffnell is the correct one. The slowing of FHR below the baseline level of more than 15 bpm below the baseline level needs to last 15 seconds or more. Ms Sommerville’s and Mr Jarvis’s interpretation would mean that the definition needed to be rewritten to provide that the slowing did not last 15 seconds or more, but that there was a delay of 15 seconds until the FHR returned to the baseline. As I understood it, Mr Spencer in closing submissions did not challenge that this was the ordinary reading of the definition. I also note that if Ms Sommerville’s and Mr Jarvis’s interpretation had been right then the reductions in FHR recorded at about 1116 hours and 1149 hours would also have qualified as “decelerations” when it was common ground that they were not “decelerations”.

I do accept that the definition in the guideline was not produced for lawyers, and that in clinical practice no one is looking up the definition, but it does not seem to me that there is any other appropriate or fair way to decide which interpretation is right, than to look at the definition. In this respect I should note that Mr Tuffnell has been involved with Committees reviewing the drafting of the guidelines and gave evidence that he had always understood his interpretation was the generally accepted interpretation, and that he had taught that interpretation.

In these circumstances there was no obligation on the part of Midwife Nanseera to call for a medical review at 1155 hours, even if she had removed the trace. This is because there were no decelerations which would have suggested that there be a medical review. I accept that Midwife Nanseera wanted to continue running the trace, hoping to get more variability and some accelerations, but could not do so until 1331 hours. Although it had been suggested that if there were decelerations Midwife Nanseera should have reported that to Mrs Tippett before the removal of the CTG trace, as I have found that there were no decelerations, there was no basis for such a suggestion. There was no duty on Midwife Nanseera to tell Mrs Tippett that the trace was not yet satisfactory during her checks before 1155 hours.

In the light of what occurred on the trace between 1331 hours until the bradycardia at 1353 hours I think it likely that if the trace had continued after 1155 hours it would have continued to be unsatisfactory. In those circumstances, by about 1220 hours a medical review would have been called for. However that was likely to prompt a further request for CTG monitoring, given that the CTG trace on 6 November 2005 had become reassuring, and that is likely to have lasted from about 1230 hours to 1330 hours.

Even assuming that the further CTG trace continued to be unsatisfactory, I accept Mr Tuffnell’s evidence that a further discussion would have taken place, and that if action had been taken, labour would have been induced, perhaps after a scan had been carried out. I make this finding because such an approach was consistent with the plan agreed for Mrs Tippett on admission, and because there would have been no obstetric indication for a caesarean. There would not have been any decelerations to trigger an urgent caesarean, because there were no decelerations between 1108 hours and 1155 hours. The trace was unsatisfactory, but it was not pathological or sinister. In these circumstances, even if Mrs Tippett had not removed the CTG trace, the outcome for Josh would have been the same.

As a matter of fairness to Ms Sommerville I should record that some time was spent both in cross examination and re-examination on the fact that in the questions on the Defendant’s agenda for the experts the time for the tightenings and dips or decelerations had been mis-described and that Ms Sommerville had not picked that up in her answers. I have to say that was an exchange which in my judgment took the analysis no further at all. It was perfectly apparent that everyone was concentrating on two particular decelerations and that the times had not been cross-referenced accurately. All this point showed was the universal truth that everyone can make mistakes. It did not assist me in assessing whether I could place sensible reliance on Ms Sommerville’s evidence.

I should also record that in oral evidence Mr Jarvis developed the “single unifying theory”, which had been, at most, hinted at in his written reports. It was to the effect that there was a linkage between the tightenings and decelerations at 1134 and 1152, and the umbilical cord compression which ultimately occurred at 1353 hours. Ms Whipple was critical in submissions about the lateness of the development of this theory, and its speculative nature. I do not accept that the single unifying theory works on the facts of this case, because there were no decelerations at 1134 and 1152, and the dips were not, for the reasons given by Mr Tuffnell, related to the tightenings. At the end of the day the way in which Josh’s head must have trapped his umbilical cord with his head could not be related to the CTG trace which occurred between 1108 hours and 1155 hours. I accept that the single unifying theory came late in the day, but that seemed to me to be more of a product of Mr Jarvis’ interest in the matter on an academic level. However it can be said that Mr Jarvis had permitted himself to indulge in speculation.

Mrs Tippett said that Mr Tippett had connected the CTG trace before he left with her mother as he was fed up of waiting for the staff to reconnect the CTG and everyone was anxious to make sure the baby’s heart beat could be heard. Mrs Tippett said that Mr Tippett had never reconnected a CTG before but he’d seen the process many times. Mrs Tippett said she was aware that there was a note in her medical records that midwife Stella checked the trace at 1340 hours. Mrs Tippett said that she remembered the midwife came into her room but could not possibly recall the precise time or how long the midwife stayed with her. Mrs Tippett noted that she was still in a great deal of pain.

Mrs Tippett said she was a very anxious person, aware that anything could go wrong and always wanted extra monitoring to hear the heart beat. Mrs Tippett also said that after the reconnection of the CTG trace at 1331 hours she had not seen the midwife until she had pressed the buzzer, which would have been at 1353 hours. Her father had stayed with her all that day. Mrs Tippett said that not more than a minute or so after Mr Tippett and her mother had left for a cigarette, the baby’s heartbeat had begun to slow down. Mrs Tippett said that she buzzed for the midwife straight away.

Mr Tippett said that he had reconnected the CTG trace. Mr Tippett rejected the suggestion that it had been put on by the midwife. He said he’d had a brief look outside the door, he’d realised that everyone was busy and that he felt comfortable enough to put the belt back on. He confirmed that this was the first time that he’d put the belt back on but he’d seen it being put on a number of occasions and knew what to do. He said he put it on because he got a gut feeling that he was worried but after he then heard the heart beat he’d felt reassured and then gone downstairs to have a cigarette with his mother-in-law. He said he’d not seen a midwife after he had put on the trace and before he had left to go downstairs with his mother-in-law.

Mr Clark senior said on 8^th November they were a little worried about the lack of attention that Mrs Tippett was getting. He said there came a point when Mr Tippett and Mrs Tippett’s mother wanted to go downstairs to have a cigarette. Mrs Tippett had said at this point that she wanted to have the trace reconnected. Mr Tippett had gone out to go and find someone to reconnect the CTG and came back a few moments later saying he would do it himself. He said that the CTG trace showing that it was connected at 1331 hours would have been done by Mr Tippett.

Mr Clark senior said he was unaware of the midwife coming in to check at 1340 hours. Mr Clark senior said that when Mr and Mrs Tippett had been living apart, he’d been acting as a father figure and had become involved in looking after Mrs Tippett’s care. He said his daughter had been very concerned about heart beats. He said that Mrs Tippett was a nervous person whereas Mr Tippett had been calm and was very good at reassuring her. He said that Mr Tippett reconnecting the CTG trace had been good for Mrs Tippett and that everyone could have heard the heartbeat and that it was not rocket science to listen to the monitor.

Midwife Nanseera said in her witness statement that Mrs Tippett had returned at about 1330 hours and she had put her back on the CTG trace. Midwife Nanseera was not sure of the exact time that Mrs Tippett had returned but around 1331 hours she had gone in and she said that she had started the CTG and she had made the notes. Midwife Nanseera had recorded Mrs Tippett’s temperature, pulse and blood pressure. I accept that this could not have been recorded before about 1339 hours, because Midwife Nanseera had written on the trace at that time, and that part of the graph paper would have been in the CTG machine until 1338 hours.

Midwife Nanseera said she reviewed the CTG after it had been running for ten minutes at 1340 hours and noted the continuing reduced variability at around 5bpm. Midwife Nanseera did what is known as a “Dr C Bravado” (an acronym to assist in recollection) which sets out readings for various matters shown by review and the trace including the reason for review, which was a cardiac baby, whether there were contractions and there were none, the base line rate which was 148bpm, the variability which was 5bpm which was noted as reduced, the accelerations which were recorded as not well defined, the decelerations which were none, and overall, which was recorded as not very reassuring. The plan was to continue the CTG and observe closely.

Midwife Nanseera said it was simply not true that Mr Tippett had reconnected the CTG. She stated that she clearly recalled reconnecting the CTG when she found Mrs Tippett back in her room at around 1330 hours. Midwife Nanseera said she was not able to remember the conversations with Mrs Tippett and said that there would have always been some conversation. She said at 1330 hours there had been a male figure with Mrs Tippett when Midwife Nanseera had reconnected the CTG.

I find that it was Midwife Nanseera who reconnected the CTG trace at 1331 hours. I make this finding for the following reasons. First Mrs Tippett’s recollection of events and times was, as noted above, for understandable reasons, unreliable. Mrs Tippett had no clear recollection of the midwife coming in, and even suggested in oral evidence that Midwife Nanseera had not come in, where the notes show that Midwife Nanseera was present at least by 1340 hours. Secondly Mrs Tippett thought that it was very shortly after Mr Tippett and her mother had left that the heart rate had dropped, whereas the trace shows a period of 22 minutes. Thirdly Mr Tippett’s recollection of events on the day was, for all the reasons considered before, also unreliable. Fourthly Mr Clark senior had not even recalled the presence of Midwife Nanseera carrying out the observations, and as discussed above, he was clear only about some things. Fifthly I accept Midwife Nanseera’s evidence that she reconnected and made the mother’s observations, which take some 2-3 minutes to complete, and carried out the Dr C Bravado by 1340 hours, which evidence shows would take about 10 minutes to complete. The fact that the Dr C Bravado was recorded at 1340 hours supports Midwife Nanseera’s evidence. Sixthly, I consider that the prospect of Mr Tippett being able to reconnect the CTG trace and get such a reliable trace as was shown on the print out at first attempt was small.

At 1353 hours there was an abrupt bradycardia with the FHR dropping to 60 bpm. It rose to 100 bpm at 1355 hours, but dropped again to 80 bpm, and did not recover. At 1402 hours the midwife pressed the emergency buzzer. Medical help arrived, and an immediate emergency caesarean section was carried out under general anaesthetic. Josh was delivered at 1422 hours.

Mrs Tippett said that not more than a minute or so after Mr Tippett and her mother had left for a cigarette the baby’s heartbeat then began to slow down. Mrs Tippett said that she buzzed for the midwife straight away. The buzzer triggered a flashing light however the buzzer stopped flashing and no one had come to see her. She said she rang for the midwife immediately after that the CTG trace showed that the heart rate dropped at 1353 hours. She remembered keeping pressing the buzzer as no one showed up straight away. She said that when the midwife eventually arrived in the room there was initially no sense of urgency from her.

Mr Clark senior said there came a time when Josh’s heart rate dropped and that could be heard quite clearly. Mrs Tippett began to panic and pressed the call button. He said that no one came to check for several minutes. He said that Mrs Tippett was increasingly anxious and he didn’t know whether to stay or go and find someone. Eventually a midwife came in but she wasn’t in a particular hurry. She checked Mrs Tippett over and then left the room and came back with another nurse. She seemed to be more senior. There was some debate about which heart beat had stopped and then the second nurse, he thought, pressed the emergency buzzer. Once the crash team had arrived he telephoned his son to tell him to come to the hospital straight away.

Mr Clark senior said that Mrs Tippett had been dragged away down the corridor and that she was in agony and her feet were skidding across the floor as she was dragged to the delivery suite. He said he was horrified to see his daughter being treated in this way and he remembered being in shock when he saw his son later that day. He said that he didn’t believe that the nurses knew what they were doing and that they had ample opportunities to raise an alarm but only chose to do so when the fetal heart beat was lost completely. Mr Clark senior said he wished he’d pressed the monitor crash button. He said his daughter had been manhandled and she should have been wheeled to the theatre. He said Mrs Tippett had been taken past a sluice room, which he pointed out as the dirty utility room on the plan.

Mr Clark junior said that on the 8^th November he had called St Thomas’ to check on Mrs Tippett. He’d made the call from work and his employers at the time were First Point Healthcare. There was an automated answering system at St Thomas’ which worked on occasions. On this occasion he’d got through to the nursing station on Karyn’s floor. He said the midwife who picked up the phone introduced herself as midwife Stella. He said he knew this was the same midwife as he’d met on the 4^th November. He said that the midwife had become worried when he told her that he was Karyn Tippett’s brother and wanted to know how she was. He said that she said that she had not had much to do with Karyn and had not yet seen her that day. He said that while they were speaking Mrs Tippett was buzzing at the very same moment. She said she would go and check and asked him to hold saying she would be back in a minute. Whilst he was on hold his father had called on the mobile telling him of the crisis in Mrs Tippett’s room. He could hear commotion in the background and kept hearing someone shouting “crash”.

Mr Clark junior was able to time the call at 1359 hours, by reference to call records produced to him from his work. The log for the phone call showed that he had made a phone call at 1359 hours which had lasted for “420”, which must be either 420 seconds which is 7 minutes, or 4 minutes and 20 seconds. He had hung up after his father had called him on the mobile.

As noted above Midwife Nanseera gave inconsistent evidence about when she had gone into the room after the bradycardia. When asked about entry to the room at 1353 hours she said it was not an exact time and that it could be 1354 to 1357 hours. She said she’d been in a state of shock because this was not common. She had not expected this. Midwife Nanseera said she’d made the notes about the matters from 1353 hours at some stage between 1405 and 1410 hours when she was in theatre and writing up matters having handed over care. Midwife Nanseera said that the timing in the notes recorded the start of the bradycardia at 1353 hours which was the time corrected by her after reviewing the trace when writing up the notes after the emergency had been dealt with. She said she had initially written 1356 hours as an estimate as clearly her priority at the time was caring for Mrs Tippett and the baby.

Midwife Nanseera noted that Mr Clark senior had suggested that the call button had sounded for several minutes and the buzzer had stopped flashing by the time anyone had responded and stated that she didn’t think this could be accurate because the call buzzer does sound and a light flashes and does not stop until it is switched off.

Ms Sanchez said she didn’t have any formal involvement in Mrs Tippett’s care until she was called to give urgent assistance at around 1353 hours that afternoon and described her attempts to assist Midwife Nanseera before activating the crash button.

Although it is not necessary for the disposal of the action to make further findings, I consider it likely that Midwife Nanseera was present in Mrs Tippett’s room shortly after the FHR dropped at 1353 hours. This is because in her witness statements Midwife Nanseera referred to hearing the drop in FHR, which appeared to be a constant and reliable feature in her evidence. The trace also shows that by 1355 hours the FHR had improved a bit, before dropping and then improving, as well as changes on the mother’s trace, all of which is consistent with Midwife Nanseera being present in the room properly checking to see whether the CTG trace had stopped recording the baby’s FHR rather than because the FHR had actually decelerated. Although the trace becomes indistinct after that period Midwife Nanseera and Midwife Sanches were attempting to provide assistance, before hitting the emergency buzzer.

In these circumstances Mr Clark junior must have been talking to someone other than Midwife Nanseera at 1359 hours. That is because the CTG trace shows that Mrs Tippett was being moved before that time, at about 1356 hours, and that must have been by Midwife Nanseera. Another possibility is that the time recorded on the call log by Mr Clark junior’s employer was not correct, and that the call took place just before 1353 hours.

I also address Mr Clark senior’s concern about the way in which Mrs Tippett was taken to theatre because it was a matter raised in the evidence. It was apparent that when the crash team attended Mrs Tippett, the immediate priority was to get Mrs Tippett into the theatre. This was through some doors, off the end of the corridor and to the right, and on the same floor. As Mr Jarvis put it, the priority was speed, and no proper criticism can be made of the way in which Mrs Tippett was taken to theatre. That does not diminish the fact that these were unpleasant scenes for Mr Clark senior to witness.

Josh was born in a very poor condition. His Apgar scores (a score which assesses the condition of a new born baby by reference to heart rate, breathing, skin colour, muscle tone and reflex response) were 0 at 1 minute which is effectively lifeless, 1 at 5 minutes, and 3 at 10 minutes. Josh was resuscitated and sent to the Special Baby Care Unit. He suffered cerebral palsy due to hypoxic ischaemic encephalopathy in the perinatal period (the period around the birth). An MRI scan on 15 November 2005 showed hypoxic ischaemic brain injury of both the acute near total type and also the peripheral (edge) perfusion (spreading) failure type. The acute near total type began at 1403 hours.

For the detailed reasons given above I find that Mrs Tippett removed the trace at 1155 hours, and that it was reconnected by Midwife Nanseera at 1331 hours. I find that there were no decelerations shown on the CTG trace between 1105 to 1155 hours. I find that if monitoring had continued at 1155 hours then by about 1220 hours a medical review would have been sought. This would not have been because of decelerations, but because the trace remained unsatisfactory. In the light of the medical history, and in particular the fact that a later trace had shown a recovery on 6 November 2005, I find that the doctor would have called for a further CTG trace to be carried out. Even if that had continued to be unsatisfactory that would not have led to a caesarean, it would have led to an induced labour, perhaps after a scan. Josh would not therefore have been born, or in theatre, before the umbilical cord compression occurred at 1353 hours. For all these reasons I dismiss this claim.

It was common ground that the fact that Josh suffered cerebral palsy is a matter of great regret. I should leave the final words to Josh’s grandfather, Mr Clark senior. He gave evidence and listened with dignity to the whole proceedings. After closing submissions had been made he asked if he might correct one thing which had been suggested in the submissions. He said it was wrong to say that Josh was a burden, he said that Josh was and is a blessing to the family.