Webb v Liverpool Womens' NHS Foundation Trust

Courtney Ellen Webb, the claimant, was born by vaginal delivery at 17.52hrs on 25 October 1999 at Liverpool Women's Hospital NHS Foundation Trust, the defendant. She was born following an induced labour. She sustained a right brachial plexus injury (BPI) during the birth process caused by shoulder dystocia. The result is that, sadly, she suffers from Erb’s palsy which involves a limited range of movement in her right arm.

She contends, through her mother and litigation friend, Stacey Keira Perkins, that the defendant handled the birth process negligently and that had it not done so the injury would not have occurred. This hearing over 5 days commencing on 27 October 2014 has been a liability hearing to test that contention. If relevant, quantum will be determined on a future date.

The allegations extend to a contention that a Caesarean section was indicated at various times during labour and that the defendant was negligent in its failure to proceed to Caesarean section but instead proceed to vaginal delivery. It is accepted that if Courtney had been born by Caesarean section then she would not have suffered BPI because this injury is a possible consequence of shoulder dystocia which itself is a possible consequence of vaginal, but not Caesarean, delivery.

Furthermore it is contended that even if it was not negligent to proceed to vaginal delivery, the delivery itself was negligently mishandled because the midwives employed by the defendant failed to adopt the proper and recognised procedures, well-known at the time, to avoid such an injury.

The defendant’s position is that there was no requirement at any stage that Courtney be delivered by Caesarean section before the vaginal delivery that occurred at 17.52 hours, that the shoulder dystocia was recognised promptly and managed appropriately and that the BPI could not reasonably have been prevented because it was probably caused by the propulsive forces of labour.

As one would expect in a case where such matters are in issue, each party has permission to rely upon obstetric and midwifery expert evidence. The claimant instructed Mr Michael Gillmer, Consultant Obstetrician and Gynaecologist and Mrs Sandra Tranter, midwife and the defendant instructed Dr Michael Maresh, Consultant Obstetrician and Gynaecologist and Mrs Susan Brydon, midwife.

Whilst there has been some overlap, the obstetricians have predominantly addressed the issue of whether the failure to proceed to Caesarean section at various points before delivery was negligent and the midwifery evidence deals with whether the vaginal delivery was appropriately handled taking account of the fact that it is not disputed that this delivery was afflicted by shoulder dystocia.

As a result of the joint meetings held between the parties’ respective experts, Mr Sheldon, counsel for the claimant, has revised the Particulars of Claim to produce an amended version for which he sought permission on the first day of the hearing. His premise was that the proposed amendments reflected the manner in which issues had been narrowed and/or clarified at the joint meetings. Mr Martin, counsel for the defendant had had notice of the proposed amendments and took no objection to them. He very properly acknowledged that they reflect the real issues and accordingly I gave permission for the amendments to the Particulars of Claim and have incorporated that amended document into the court bundle at Bundle 1 Tab 1 page 8A.

Accordingly Mr Sheldon and Mr Martin are agreed as to the issues for determination. They are set out in paragraph 10 of Mr Sheldon's opening note and paragraph 6 of Mr Martin's skeleton argument. In short they are;

I do not intend to dwell for too long on medical definitions but it is helpful to provide enough detail for this judgment to be read by a lay person and in particular Miss Perkins and perhaps in due course Courtney without too much recourse to a medical dictionary.

Mr Martin in paragraph 4 of his skeleton argument drew my attention to Croft v Heart of England NHS Foundation Trust [2012] EWHC 1470, in which Hickinbottom J gave a full and lucid summary of shoulder dystocia, what it is, how it occurs during childbirth, the mechanics, dynamics and possible consequences involved. His explanation has been cited with approval as recently as 16 January 2014 by Haddon-Cave J in Sardar v NHS Commissioning Board [2014] EWHC 38. For convenience therefore and with gratitude to him I cite Hickinbottom J’s summary in full;

It might help to say something about the rationale of the McRoberts manoeuvre (or position). It is that the hyperflexion of the maternal hips tilts the symphysis pubis relative to the fetus with the result that the anterior fetal shoulder often spontaneously passes underneath it.

The law relating to breach of duty in clinical negligence is well-established and there is no issue between the parties in that connection.

The starting point must be the observations of McNair J in the seminal case of Bolam v Friern Hospital Management Committee [1957] 1WLR 582;

In Maynard v West Midlands Regional Health Authority [1984] 1WLR 634 at 639 Lord Scarman said;

And in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881 he said;

In Bolitho v City and Hackney Health Authority [1998] AC 232 the House of Lords considered the Bolam test again in the context of the extent to which the court can find negligence even in the face of a body of professional opinion that supports the actions of the Doctor against whom the allegation is made where the court was unpersuaded of the logical force of that opinion.

Lord Browne-Wilkinson said

It is right to record that later in the same speech he says

Accordingly, as Mr Sheldon points out in paragraph 12 of his opening note, it is not enough for the defendant simply to adduce evidence from experts to the effect that he or she honestly holds the opinion that the treatment provided was acceptable. It is necessary for the court to be satisfied that the treatment provided had sufficient logical force to justify that opinion.

In reaching such a conclusion it is necessary to guard against substituting ones own views for those of the medical experts. In Bolitho itself the House of Lords interpreted the Judge at first instance as having formed the view, that absent medical evidence, he would have thought the steps taken (or not taken) by the defendant doctor were unjustified but the expert view to the contrary could not be dismissed as being illogical.

It is also necessary to remind myself that what is relevant here is the practice in 1999, not in 2014.

The first limb of the claimant's case is that the decision not to proceed to Caesarean section on any of the four occasions between 13.50 hours and 16.15 hours as referred to in paragraph 9 above lacked logical force and that it did so on the basis of the state of knowledge and practice in 1999.

As regards the second limb of the claim, namely that the vaginal delivery was mishandled, in distinction to the first limb allegation, there are issues of fact that require to be determined which will inform conclusions as to negligence. In short, the experts are not in significant disagreement as to what should have happened concerning the manner in which the vaginal delivery should have occurred given shoulder dystocia, the issue is about whether it did happen.

Mr Sheldon produced a comprehensive and very helpful chronology at the outset of the trial. It is not in dispute and accordingly I propose to adopt it in its entirety and attach it to this judgment as Appendix 1.

This chronology distils information from the hospital notes and from the partogram (Footnote: ²) maintained during labour. A partogram is a graphical record of, amongst other things, the hourly rate of cervical dilation during the active phase of labour. The horizontal axis of the graph measures time and the vertical axis, cervical dilation. In a clinical policy document entitled Recommended Best Practice for Use of Partogram (RBP Partogram Document) (Footnote: ³) in use at the defendant hospital at the time it is defined as "a pictorial tool used to guide assessment of a woman's labour".

There is superimposed on the graph on the partogram in use by the defendant at the time two parallel diagonal lines the first of which is described as the "alert line" and the second of which is described as the "action line". The action line is drawn 2 hours to the right of the alert line.

There is not complete unanimity between the consultant obstetricians as to what the alert line signifies. In their joint statement (Footnote: ⁴) Mr Gillmer considered that the alert line defined "what would reasonably be defined as normal progress in the active 1st stage of labour in 1999 i.e. 1 cm per hour. In his oral evidence he amplified on this, he said it was "the mean rate of dilation of the slowest 10% of the women studied". (Footnote: ⁵)

Dr Maresh considered that

Mr Gillmer drew attention to Turnbull on Obstetrics 1995 edition, the standard textbook at the time and which contains the following observation;

It will be seen from the chronology and the partogram that the alert line was crossed at 09.30 on 25 October. As I have said, the action line runs parallel to the alert line but 2 hours to its right (Footnote: ⁷). The action line was crossed at about 13.30 hours. The defendant at the time had in place a clinical policy document entitled Recommended Best Practice in Respect of Dysfunctional Labour (RBP Dysfunctional Labour Document) (Footnote: ⁸). It states:

Mr Gillmer's evidence was that at that point it became incumbent on the medical staff caring for the expectant mother to pause and consider what factors were in operation that were causing progress to be slower than expected and then to take the necessary action to correct the problem identified.

It was his evidence that the cause of slow or no progress in cervical dilation where the fetus is optimally positioned (Footnote: ¹¹) is generally down to one of two causes or a combination of both. These causes are;

As I have said, in respect of the first limb of the claim, namely that the defendant was negligent in not proceeding to a Caesarean section, it is alleged that there were 4 opportunities when that decision should have been taken.

However, before proceeding to a consideration of the conduct of the defendant at 13.50, which was the first such occasion, it is necessary to place matters in context.

The claimant does not allege a cause of action in respect of the treatment of Miss Perkins prior to 13.50 hours but that is not to say that there is not criticism of her care. The claimant's position is that the dosage of Syntocinon throughout that morning had been excessive and unnecessary and taking account of her contraction rate and the guidance in the then current Royal College of Obstetricians and Gynaecologists (RCOG) Guideline “Induction of Labour” which specified (at paragraph 4.4 that

“the frequency of contractions with oxytocin use should not exceed 3-4 contractions in every 10 minutes”

Miss Perkins was contracting at no less than 4 per 10 minutes from 06.00 rising to 4/5 and thereafter to 6 and indeed 7 prior to 13.30 before reducing to 5/6 and then 5 from 13.30. From 05.30 to 06.00 she was contracting at the rate of 3 every 10 minutes.

So far as Mr Gillmer is concerned, Miss Perkins was suffering uterine hypercontractility (excessive contractions). The RCOG guideline specified that the solution to that was reduction in or cessation of Syntocinon (Footnote: ¹²) but that was not the course of action taken here. Mr Gillmer is of the opinion that failure to do so was actually irresponsible however it is not suggested that this led to any adverse actionable consequences either for Courtney or her mother.

I should say that Dr Maresh does not accept that the Syntocinon regime was open to criticism much less that it was irresponsible, neither does Mrs Brydon. But the argument is to some extent academic in the circumstances.

It will be seen from the chronology that Miss Perkins had been on a Syntocinon infusion since 05.30 i.e. 8 hours before the action line was crossed at 13.30. The amount of Syntocinon had been steadily increased throughout the morning from 6 ml/hr of 10 iu (Footnote: ¹³) of Syntocinon in 500 ml of Hartmanns solution at 05.30 to 96 ml/hr from 09.30 to 13.00 hours at which time it was reduced to 72 ml/hr which was the level at which it was being infused at the time the action line on the partogram was crossed.

As I mentioned, the partogram contains information over and above merely cervical dilation, it included, in tabulated form, the rate of Syntocinon infusion and the strength and frequency of uterine contractions.

I have already mentioned that in the period 05.30 hours to 13.30 hours contractions are recorded on the partogram as "moderate" in strength with their frequency steadily rising from 3 every 10 minutes to 7 every 10 minutes. As to the assessment of strength, it must not be overlooked that Miss Perkins was obese at the time. That fact has relevance in other respects but for this purpose it is right to point out that Mr Gillmer’s evidence was that categorising the strength of contractions as either weak, moderate or strong is not easy but it is more difficult with obese women. He used the analogy of trying to assess how taut a bicep is by feeling it over a sponge.

It is right to say that paragraph 12 of the RBP Partogram Document required contractions to be recorded as “weak” if they lasted less than 20 seconds and “strong” if they were in excess of 45 seconds. In those circumstances strength was categorised not so much by how taut the uterus became but rather the period for which it remained taut. In so far as that is the test of strength of contractions a moderate contraction would be between 20 seconds and 45 seconds. The partogram describes contractions as moderate throughout the active phase of labour until 17.00 hours.

Mr Sheldon however pointed out that the tocograph record of contractions (Footnote: ¹⁴) suggests that at various times during this phase of labour contractions met the RBP Partogram Document threshold to warrant the description of “strong” in that they persisted for 45 seconds or longer. On the tocograph each column over which the graph of contractions is superimposed represents 30 seconds. The length of a contraction is the time from trough to trough on the graph. Mr Sheldon drew attention for example to the readings for 05.40 to 06.00, 06.30 to 6.50, 08.20 to 08.40 and 09.10 to 09.30 when the distance between 2 troughs exceeded 45 seconds. On each of these occasions indeed throughout active phase of labour (except at 05.30 and 09.00) frequency of contractions was at least 4 per 10 mins. At 09.30 Syntocinon was actually doubled to 96ml/hr.

Mr Sheldon made the point therefore that the uterine contractions were not uniformly moderate even by reference to their length leaving aside the rather difficult and subjective exercise of gauging strength by the extent of uterine tautness.

A vaginal examination (VE) to measure cervical dilation and the position of the fetus had been undertaken at 05.30 at which point cervical dilation was measured at 3 cm. A further VE was carried out at 09.30 and dilation was measured at 7 cm. Of course 4 cm of dilation in 4 hours was satisfactory.

A further VE was performed at 12.30 and dilation measured 8 to 9 cm, as it was at yet a further VE at 13.30. It is acknowledged that the measurement of cervical dilation is not an exact science and that there is some subjectivity about it but it seems that in fact dilation would have been no more than about 8 cm at 12.30 and at 13.30 because at 13.50 there was a further VE performed by a Dr Tanden at which dilation was measured at 8 cm. On the basis of that measurement, cervical dilation in the 4 hours and 20 minutes from 09.30 had been about 1 cm with no dilation between 12.30 and 13.50.

It will be recalled that this was against the background of Miss Perkins having been on Syntocinon since 05.30 and on the maximal dose of 96 ml/hour between 09.30 and 13.00 and a maximal or near maximal dose thereafter. The Clinical Guidelines for Induction of Labour issued by NICE in June 2001 (Footnote: ¹⁵) stated at page 53 that when considering the induction of labour with oxytocin

This guidance is repeated verbatim in the RCOG guideline “Induction of Labour” paragraph 2.3.5. (Footnote: ¹⁶)

It will be remembered that Miss Perkin’s contractions had consistently been 4 or more per 10 minutes since 06.00 hours.

It is right to mention that RCOG Guidelines contain a Table of “Suggested Standardised Dilutions and Dose Regimens (Footnote: ¹⁷)". On the basis of that table, infusions exceeding 60 ml/hr of 10iu of Syntocinon in 500 ml of saline is in excess of the dosage licensed by the manufacturers for this purpose. Having said that however the RBP Dysfunctional LabourDocument countenances a maximum infusion rate of 96ml/hr for primigravidae (first time mothers such as Miss Perkins) but that the Syntocinon should be increased to the maximum

“until there is effective uterine action ie 3-4 contractions per 10 minutes lasting 45 to 60 seconds”.

There can be no doubt that Miss Perkins was contracting at that frequency and, by reference to the tocograph, that, for periods of time at least, her contractions lasted at least 45 seconds. Yet infusion remained at maximal from 09.30 until 13.00.

The allegation arises because Dr Tanden, for whom of course the defendant is vicariously liable as her employer at that time, reviewed the progress of labour at 13.50 because the action line had been crossed. It is the claimant’s case that that review should have recognised that Miss Perkins was in secondary arrest (Footnote: ¹⁸) which should in turn, in the circumstances of this case, have resulted in a decision to proceed to Caesarean section there and then.

I should make it clear for the avoidance of doubt that I do not overlook the full effect of paragraph 3.44 of Mr Gillmer’s report. The penultimate sentence of which reads as follows;

The suggestion therefore is that proceeding to Caesarean section was not the only reasonable option but that performing an obstetric review with VE by 15.00 would also have been an option. Mr Gillmer made it clear in his oral evidence that he considered that it was substandard care not to decide at 13.50 to perform a Caesarean section and that no reasonable obstetrician would not have done a Caesarean section following the 13.50 examination. He felt that the course advocated by Dr Tanden of waiting and seeing what measurements an intrauterine pressure catheter (IUP) would produce and continuing with Syntocinon was unacceptable. It unnecessarily extended an already prolonged labour and subjected the mother and fetus to hypercontractions.

It is right at this point to remind myself that hypercontraction can be a particular problem for the fetus as well as uncomfortable or painful for the mother. Each time the uterus contracts the supply of blood to the fetus is restricted. This inevitably affects the fetus. Mr Gillmer described it as the fetus having to “hold its breath” during these contractions and that can be a cause of fetal distress.

He said that what he meant at paragraph 3.44 was that if labour was allowed to continue after 13.50 (and it ought not to have been) then it was imperative that a review and VE was carried out by 15.00 by which time one would have expected the cervix to have been fully dilated in the event that, somehow, cervical dilation had spontaneously resumed at 1 cm/h. His observations at paragraph 3.44 were simply carelessly drafted.

At 13.50 Dr Tanden recorded in the hospital notes the following;

The claimant contends that the action taken by Dr Tanden demonstrated that she entertained the possibility that lack of progress in dilation was due to inadequate uterine activity for which the solution was further uterine stimulation.

Mr Gillmer points out at paragraph 3.40 of his report (Footnote: ²⁵) that;

Miss Perkins had had over 8 hours of Syntocinon infusion of which over 4 hours had been at the maximal unlicenced dosage contemplated by the RBP Dysfunctional Labour Document (Footnote: ²⁶) and she was contracting at a greater frequency than the 3 to 4 contractions envisaged by NICE as the aim of a Syntocinon infusion.

His view was that any plan to seek to avoid a Caesarean section was unjustifiable and that the risks of Caesarean section, while obviously a consideration, were clearly outweighed by the risks of proceeding to a vaginal birth when cephalopelvic disproportion was indicated.

Dr Maresh however argues that prior to committing a primigravida to a Caesarean section, which, apart from the risks attendant on any operation, will automatically have implications for future pregnancies, it is appropriate to ensure that all women are given an adequate attempt at aiming for a vaginal delivery (Footnote: ²⁷).

The RBP Dysfunctional Labour Document contains a section on management of dysfunctional labour. It states the following;

At paragraph 3.43 of his report Mr Gillmer considers the use of the IUP catheter referred to in Dr Tanden’s entry in the hospital notes. He considers whether Dr Tanden could logically have considered that, albeit that contractions were frequent, they were ineffective. First, he points out that it is well recognised that IUP catheters can be unreliable (Footnote: ²⁸) but in any event uterine contractions had been effective enough to achieve a rate of cervical dilation that followed the alert line on the partogram i.e. 1 cm/h between 05.30 and 09.30 and that accordingly it was "totally illogical to conclude that her uterine contractions were ineffective". Furthermore he said in his oral evidence that IUP readings are in any event no substitute for assessing progress by VE. He referred to Turnbull’s Obstetrics page 572 (Footnote: ²⁹)

As regards the extract from the RBP Dysfunctional Labour Document cited in paragraph 64 above, he pointed out that refers to spontaneous labour. That is obvious he argues not least because that is made clear from the first phrase but also because it calls for the commencement of Syntocinon infusion. His position was that management of an induced labour is different from a spontaneous labour because in an induced labour the uterus has already been artificially stimulated.

In his oral evidence he further explained why in any event the regimen advised by Dr Tanden was wholly inappropriate. He argued that uterine stimulation had been in progress from 05.30 predominantly at maximal rates so in the unlikely event that the cause of lack of dilation was ineffective contractions what could be done about it? In that case stimulation had been extensively tried and had not worked. On what logical basis he asks rhetorically could it be considered that that would suddenly change with or without further Syntocinon? The answer he came up with was that there was no logical basis.

Mr Gillmer is critical of what can be derived of the thought processes of Dr Tanden from her entry in the notes. At paragraph 3.44 he notes that she recorded a "good size baby" (Footnote: ³⁰)and that the action line has been crossed but that the significance of these observations and the fact that mother’s cervix had only dilated 1 cm to 8 cm between 09.30 and 13.50 appears not to have been recognised. In other words she failed to recognise that Miss Perkins had a prolonged labour with recurrent uterine hyperstimulation and secondary arrest despite a very high dosage of Syntocinon infusion since 09.30. Nor did she note that the most likely cause of the secondary arrest was a large fetus with potential cephalopelvic disproportion. There was, said Mr Gillmer, a failure to consider the 3 principles that inform the reason for slow/stalled dilation namely the 3 Ps (Passenger i.e. the size of the fetus, Passages i.e. the size of maternal pelvis, Powers i.e. the power of the uterus to expel the fetus). All that had apparently been considered is that last “P”.

Dealing with the points made by Mr Gillmer at paragraph 60 above, Dr Maresh accepts that in a woman in a second labour who experiences a slowing of progress the most usual reason is cephalopelvic disproportion and that in those circumstances one would consider performing a Caesarean section. His view however, expressed at page 8 of his report, (Footnote: ³¹) is that the situation is totally different in a primigravida and the most usual reason in such circumstances is inadequate uterine contraction. Accordingly his view was that it was very important to be able to assess the contractions adequately. He has no criticism therefore of Dr Tanden in seeking to establish, with the benefit of an IUP catheter the strength of contractions particularly since in this case an external contraction monitor would not be as effective, in the light of Miss Perkins’ obesity.

Indeed he says at page 319 that

These views were repeated by him in the conclusion to his report in paragraphs 33 and 34 (Footnote: ³³). And further he derives support for his view that insertion of the IUP was appropriate from the passage quoted at paragraph 64 above in which I set out the instructions in the RBP Dysfunctional Labour Document.

The joint report of the obstetricians is most helpful. In the context of the course that should have been taken at 13.30, it is right to record the following;

First, there is agreement (Footnote: ³⁴) as to the risk indicators for shoulder dystocia and there is also agreement that all were present in Miss Perkins’s case (Footnote: ³⁵). The risk factors are

Secondly, that Mr Gillmer believed that Miss Perkins was hypercontracting when contractions exceeded 4 in 10 minutes. Dr Maresh accepted that when contracting at that rate (5 in 10 minutes had been the minimum rate of contraction since 09.30) Miss Perkins could have been considered to fulfil the formal definition of hyperstimulation but “the contractions were short lasting with adequate relaxation between”

Thirdly, that Mr Gillmer is of the view that in light of the suspected larger than average fetus (Footnote: ³⁷), the prolonged maximal Syntocinon infusion and the occipto anterior position of the fetus the secondary arrest was probably primarily caused by cephalopelvic disproportion. In his oral evidence he was even less equivocal. He stated in terms that this labour went into arrest because of disproportion. Dr Maresh was only prepared to say that that was possibly the cause (Footnote: ³⁸).

From paragraph 6 the experts record their discussion about the progress of dilation and how it can be best described. Mr Gillmer is consistent with earlier views in expressing the opinion that the labour slowed from 09.30 and had stalled (i.e. gone into secondary arrest) at the latest by 12.30 and that should have been recognised at the VE at 13.50. Dr Maresh agrees that the labour slowed between 09.30 and 12.30 but that whilst the rate of progress of dilation was slower than average, it was not abnormal. The experts are therefore not in disagreement about the position to 12.30 save that Mr Gillmer points out that 1 to 2cm dilation in 3 hours is abnormal in the sense that it meets the criteria for a dysfunctional labour even according to the RBP Dysfunctional Labour Document because it is at a rate that crosses the action line. (Footnote: ³⁹)

The real area of dispute is that Mr Gillmer sees the absence of progress between 12.30 and 13.50 as a clear indication of secondary arrest in the late first stage of labour. Dr Maresh is not so sure bearing in mind the subjectivity of the measurement of dilation and the fact that the measurements at 12.30 and 13.50 were undertaken by different practitioners. He will go no further than agreeing that the evidence indicates that progress to 13.50 was slow but not that it indicates secondary arrest. This is of course in distinction to his acceptance of secondary arrest in paragraph 73 above.

Finally the essence of the disagreement between the experts as to the position at 13.50hrs is perhaps best summed up in their observations in paragraph 9 of the joint statement.

The experts inevitably expanded on their views in their oral evidence. I have already touched on certain areas where they did so but in so far as I have not, it is important to address that now in connection with events to 13.50. I shall come back to evidence that touches on subsequent periods at the relevant time. In the meantime however I need merely add that Mr Gillmer’s oral evidence was consistent with his written evidence save to the extent that the clarification of paragraph 3.44 was inconsistent with a literal reading of what the written words actually convey.

There was some discussion in cross examination of Mr Gillmer about what would have been the situation if the defendant had worked to an action line 4 hours to the right of the alert line rather than 2 on the basis that a line 4 hours to the right is no less valid and was in fact the practice adopted by the World Health Organisation.

Mr Gillmer’s position was that the RBP Dysfunctional labour document made clear that the labour was dysfunctional when the action line was crossed and that was by reference not least to the defendant’s own 2 hour partogram. In addition, as a fact and based upon the standard text of Turnbull’s Obstetrics the labour was dysfunctional because dilation was at less than 1cm/hr. So even though at 13.50 a 4 hour action line would not have been crossed a Caesarean section was demonstrably indicated (Footnote: ⁴¹).

As to the contention that the proof of the pudding was essentially in the eating because Miss Perkins had actually fully dilated by 16.39 and so the absence of progress prior to that was not inevitably due to disproportion, his point was that if one pumps enough Syntocinon into the mother the uterus will be forced to contract and the cervix dilate and that will eventually result in vaginal delivery but at the risk of for example the shoulder dystocia that occurred here.

Dr Maresh also gave oral evidence in accordance with his written evidence save for the amendment to which I have already referred at footnote 18 above. In so far as Mr Gillmer was critical of the lack of detail in Dr Tanden’s note, he confirmed, and this was supported by the midwifery experts, that note writing was by no means as detailed in 1999 as it is now.

Dr Maresh believed that Dr Tanden had considered disproportion bearing in mind that progress of labour had clearly slowed because she referred to fetal size but that it was perfectly acceptable to seek to acquire further information in order to consider the adequacy or otherwise of uterine activity before subjecting the patient to a risky Caesarean section.

This is especially so where there was really inadequate information as to the strength of contractions bearing in mind the subjectivity involved in that analysis and the issue of maternal obesity. Indeed his position was that it was likely that contractions were not strong because there was good relaxation between contractions. Since strong contractions often last in excess of a minute, long relaxation periods suggest that there were short contractions within a 10 minute period. I remind myself that the RGB Dysfunctional Labour Document defines strong contractions as those lasting in excess of 45 seconds.

His view was that it was not the frequency of contractions but their strength which was the critical factor and the best way of testing that was with an IUP that could judge contraction strength empirically. The use of a catheter would mean that there would have to be an adequate period to collect readings. I must have in mind here page 572 of Turnbulls obstetrics that I cite in paragraph 65 above. Dr Maresh says that Miss Perkins had already had 7 VEs and it was wrong to subject her to further examinations until it was absolutely necessary - at about 16.15 to see if by then she was fully dilated. He argued that there was no sign of fetal or maternal distress and so no disadvantage in waiting 2 hours for a further VE. Of course there is no record that Dr Tanden had in mind a VE at 2 hours. That is not specified in her notes.

His position was that a reasonable body of obstetricians would have taken the same course as Dr Tanden, as indeed he would have done. Furthermore he contended that even if there is a suspicion of disproportion this is not always an indicator for a Caesarean section.

As I have said, it is also right to add that he did not criticise the extent to which Syntocinon was used up until this point. Primigravid women, he argued frequently need large amounts of Syntocinon to augment dilation and vaginal delivery. This is common.

Mr Sheldon tested Dr Maresh quite extensively yet entirely properly on his conclusion that Dr Tanden's decision to maintain Syntocinon, measure the strength of contractions and wait and see was indeed one that would have been adopted by any reasonable obstetrician bearing in mind that at 13.50 hrs she (Dr Tanden) was faced with a woman who had all the risk factors for dystocia because she;

As indicated above, Dr Maresh having first conceded in the joint statement that Miss Perkins was in secondary arrest, had later only been prepared to acknowledge that there had been slow progress in labour. As it happens, his definition of secondary arrest offered from the witness box included not only “arrested” but also "slowed" dilation. He accepted that on the basis of that definition Miss Perkins was indeed in secondary arrest at 13.50 and had been for some time. This is wholly at variance with what he says at paragraph 7.3 of the joint statement wherein, after an analysis of cervical dilation, he states

He accepted that Dr Tanden’s notes do not say in terms that she was concerned about the adequacy of contractions; there is indeed no reference even to frequency of contractions nor indeed is there any reference to secondary arrest or a consideration of the option of Caesarean section. He emphasised that note keeping in 1999 was not as detailed as now but by reading between the lines he was confident that the adequacy of contractions was her concern, why else order an IUP?

As to the advice to continue Syntocinon, his position was that it was standard practice in induced labour in secondary arrest where the expectant mother was on maximum Syntocinon to infuse more Syntocinon but he had no literature to which he could point in support of that conclusion. It has to be said that it does not appear to be consistent with what was said by Mr Gillmer to be the practice in 1999 as reflected in the Clinical Guidelines of 2001 referred to in paragraph 48 above. I do not recall that Dr Maresh challenged the assertion that the 2001 guidelines merely reflected the existing practice as 1999.

He argued that Syntocinon influences not just frequency but power of contractions and that that is what is important. He said that everyday in practice he sees women in secondary arrest experiencing an overstimulated uterus and on maximum Syntocinon for whom the treatment is a regime of continued Syntocinon infusion.

The point is, he contends, that at 13.50 there was evidence of moderate contractions (5/6 per 10 minutes with a good relaxation (which means that contractions cannot have been long or strong) but where neither mother nor fetus are in distress it is totally appropriate to continue with labour with a view to avoiding a Caesarean section. In short it was his view that it was not at that stage appropriate simply to go straight to Caesarean section, there is a huge range of opinion as to when it is appropriate to abandon the target of vaginal delivery and go to Caesarean section.

As he said in a joint statement (paragraph 13.1)

Mr Sheldon questioned Dr Maresh on how a finding of inadequate uterine activity would have been addressed bearing in mind the amount of Syntocinon to which Miss Perkins had already been exposed. His answer was that a consultant in those circumstances may have ordered an infusion of Syntocinon at a rate greater than the unlicensed maximum, i.e. in excess of 96 ml/ hour. He conceded that would have been unusual but was not unheard of. If that is to occur, he said, it was important to ensure adequate relaxation between contractions and that the mother was not exposed to fluid overload. There was also a need to have a clear management plan and the direct ongoing involvement of a consultant. He conceded that such a course would have been the only alternative to a Caesarean section.

I was not referred to any documentary evidence to support the contention that the maximum dosage of Syntocinon could be exceeded (Footnote: ⁴³). I have already referred to the table at page 7 of the 2001 Clinical Guidelines which does not envisage more than 96 ml/ hour and the fact that it also states that the recommended regimen involves

“the minimum dose possible of oxytocin….…. aiming for 3 to 4 contractions every 10 minutes"

Dr Maresh says merely that the clinical guidelines are just guidelines and that they are open to an exercise of discretion. I should say that I note that Dr Tanden herself notes that Miss Perkins is on the maximum dosage of Syntocinon. It is a strange concept that a “maximum” can be exceeded.

Mr Sheldon took Dr Maresh to the RBP Dysfunctional Labour Document on the basis that at paragraph 9 of the joint statement he asserts that guidance in that document was followed by the insertion of an IUP. It was pointed out to him that the relevant passages indicating the need to consider insertion of an IUP appear to relate to spontaneous labour where infusion of Syntocinon is envisaged after an arrest in labour not, as here, where arrest has occurred after extended Syntocinon infusion in an induced labour. His response was that if there is no separate protocol for induced labour then one should apply the guidance in this document and common sense. Whether that is so or not, it is difficult to see how that can be characterised as compliance with the trust guidelines when there appear to be no relevant trust guidelines for the management of an induced labour. In any event, as Mr Gillmer contends, there must clearly be a significant difference between an induced and spontaneous labour in the way in which lack of progress in labour is managed.

Dr Tanden has not been called to give evidence and there is no witness statement from her. Accordingly what was in her mind can only be a matter of speculation. Her evidence on the situation at 13.50 would clearly have been helpful and relevant.

Wisniewski v Central Manchester Health Authority [1998] Lloyds Reports Med 223 is authority of the proposition that adverse inferences can be drawn from the absence of a witness who might be expected to have material evidence to give on an issue. Of course that is subject to the caveat that no adverse inference should be drawn if the reason for the witness's absence is a satisfactory one and indeed that the detrimental effect of his/her absence may be reduced or modified if the reasons for absence is merely partially satisfactory.

Mr Martin argues that there is good reason for Dr Tanden’s absence. First, she no longer works at the trust, secondly she is unlikely to have any material recollection of these events bearing in mind the lapse of time and thirdly, the particular importance of her evidence has only become clear as a result of the amendments to the Particulars of Claim on the first morning of the trial and in respect of which the defendant had only limited notice.

The fact that a witness no longer works for a party does not in itself strike me as being a particularly good reason for failure to produce evidence from such a witness. It may of course make it more difficult to trace such a witness and/or to secure their cooperation but I have no evidence that either of those issues was a problem.

The passage of time, while clearly a factor, has not precluded the defendant from relying on the evidence of Dr Adams and two of the midwives involved in the delivery who presumably are in no better position than Dr Tanden to recollect events of 15 years ago.

As regards the third proposition namely that it has only become clear by the recent change in the pleadings that her evidence has become particularly important, Mr Sheldon makes a point that her evidence would at least have been directly relevant to allegations at 32 (i) 32 (ii) and 32 (v) and 32 (vi) of the unamended Particulars of Claim. And that the unamended Particulars of Claim raise repeated concerns about management up until 15.30 when Dr Tanden was the sole obstetrician involved in Miss Perkins care.

That is indeed true but it is clear that the amended Particulars of Claim do accord greater importance to the position at 13.50. It is only by the amendments that it is specifically pleaded that it was at that time that a Caesarean section should have been decided upon. Prior to the amendments, the allegation at paragraph 32 (ii) was that the decision to proceed to Caesarean section should have been taken following the vaginal examinations that should have taken place at or about 14.30 and/or 15.30.

Accordingly I am not prepared to draw a wholly adverse inference from her failure to attend, it would have been useful for her to attend but her absence has at least been partially explained to the extent that, at worst, the detrimental effect has, to use the words in Wisniewski been “reduced or modified”.

I note that the midwifery experts have expressed a view on the issue of proceeding to Caesarean section. Mrs Tranter defers to the view of Mr Gillmer (Footnote: ⁴⁴), Mrs Brydon indicates at page 8 of her report (Footnote: ⁴⁵) that in her experience there would not have been a decision to proceed to Caesarean section at any time before full dilation was reached.

Before moving on from the position at 13:50 hours I wish to say something briefly on the issue of causation. The question is, even if a decision to proceed to Caesarean section was made, whether in fact a Caesarean section would have taken place. The complication arises out of the fact that the experts are agreed that the time between a decision to proceed to Caesarean section and the point of knife to skin would be about 60 minutes with a VE of the patient about 5 minutes or so prior to incision. The purpose of the VE is to consider whether the position of the fetus has changed in the 55 minutes or so since the decision was taken to make it undesirable to proceed with the Caesarean section but rather instead revert to a vaginal delivery.

There is no dispute that a decision made at 13:50 hours to proceed to Caesarean section would have resulted in a Caesarean section. The fetus would not have descended by 14:50 hours to the point which necessitated a revision of that decision. The experts are agreed on that. At paragraph 29 of their joint statement the obstetricians state;

What is the basis of this allegation? It arises from Mr Gillmer's proposition that if, wrongly, a Caesarean section was not put in train at 13.50 hours there should have been a review and VE at 15.00 hours at which time it would have been seen that a Caesarean section was the only realistic option available. The allegation therefore is essentially one of omission i.e. an omission to carry out a VE at 15:00 hours. I should make it clear that Mr Gillmer does not suggest that continued use of Syntocinon after 13.50 was inappropriate once the (wrong) decision had been made not to proceed to Caesarean section (Footnote: ⁴⁶).

It will be recalled that it was at about 15:00 hours that Mr Gillmer would have expected dilation to be at or near full if, for some reason, cervical dilation had spontaneously resumed at a normal rate assuming that it was at 8 -9 cm at 12.30. Even if not fully dilated at 15.00 hours it would by then be clear whether secondary arrest was still an issue and that it was likely to be safe to proceed to a vaginal delivery.

As Mr Gillmer states in the joint statement paragraph 13.3

Dr Maresh considers that it was

“in accordance with accepted practice to continue with the Syntocinon infusion after 13:50 hours. Furthermore Stacy Perkins was reviewed by the registrar 1 hour after the catheter insertion and the midwife has documented that the pressures were then adequate with the oxytocin increased back to what it had been before".

Further, having decided to adopt a policy of waiting and seeing whether the issue was inadequate strength in uterine contractions, the defendant is criticised for seeking to measure that by use of an IUP catheter the use of which had been abandoned generally (and in the hospitals of both experts) at least 10 years before because it was an unsatisfactory and unreliable way of assessing strength (Footnote: ⁴⁷).

Dr Maresh argues that the defendant hospital was using IUPs regularly and so the staff would be better able to use these catheters than staff at other hospitals because they will have been more familiar with them. He accepts however that IUP catheters were more of a research tool than a clinical tool.

In any event, Mr Gillmer argues that the readings from the IUP were inconsistent to such an extent that there were uninterpretable and of no benefit. The readings are set out in the joint statement at paragraph 15 (Footnote: ⁴⁸). By 15.00 hrs the readings had swung from 95 mvds at 14.30 hours to 150 mvds 15 minutes later and 75 mvds 15 minutes after that. That, he argues, can only reflect malfunction in the intrauterine pressure system. He points out that at 16:15 hours Dr Adams recognised that the IUP was not working well.

He referred in his oral evidence to readings from the tocograph which demonstrated that the IUP was not working properly and that the manner in which the mvd unit readings were collated was defective. What is more he says the mvd readings were unsatisfactory in that what ought to be recorded is the total sum of the peaks in pressures in contractions in the 10 minute period. Therefore one would normally expect to see a chart giving values every 10 minutes. He contends that this trace does not show readings presented in 10 minute intervals but rather simply random recordings. In short Mr Gillmer's view was that there had been no extrapolation from the tocograph trace to produce meaningful figures in the notes. That contention was one that Dr Maresh was not asked to comment upon and so was unchallenged.

Dr Maresh considered that

However he goes on to suggest that there will be natural variations between readings and one needs to allow time to assess over a period the significance of what the IUP is recording and that no meaningful information would be available from the IUP until 14.30 (Footnote: ⁵⁰).

He felt that by 14.50 the readings generally indicated that pressures were adequate and that it was appropriate to give further time for the continued Syntocinon to take effect, lead to full dilation and enable a vaginal delivery.

It is also right to say however that in so far as the justification for further time for Syntocinon to take effect was that by 14.50 readings generally indicated that pressures were adequate, the fact is that albeit that the reading at 14:45 hours was 150 mvds, at 15:00 hours it was only 75 mvds and had been only 95mvds at 14.30 hrs. I also note that in paragraph 17 of the joint statement Dr Maresh confirms that “on only one occasion did the IUP monitor suggest that the contractions were effective when the reading was 150 mvds at 14.45 when assessed by the registrar”.

So in reality between 14:30 hours (Footnote: ⁵¹) and 15:00 hours there were two out of three readings showing inadequate uterine strength notwithstanding Syntocinon infusion at or near the maximum since 09:30 hours. That in itself does not sit comfortably with his contention that at 14.50 pressures were adequate.

The claimant contends however that even if pressures were adequate it was important to see sooner rather than later whether that was being translated into renewed progress in cervical dilation. That could only properly be recognised by a VE because VE is the only reliable manner of assessing progress in cervical dilation (Footnote: ⁵²). It was not the strength of contractions per se that was in issue here (Footnote: ⁵³), what mattered was dilation. True it is that dilation is the result of the strength as well as frequency of uterine contractions but the problem about which the defendant was concerned was not whether pressure was inadequate per se but whether inadequate pressure was the reason for the failure in progress of dilation. The fact is that if uterine contractions were adequate and there was still no dilation then, bearing in mind that the fetus was optimally positioned, the diagnosis would have been cephalopelvic disproportion. In fact no VE was undertaken until 16.15 hours.

Secondly, at the end of the day even if the IUP catheter could produce reliable information that the uterine contractions were inadequate in strength, so what? How was it supposed that this problem could be addressed bearing in mind that Miss Perkins was already on maximum Syntocinon? The defendant’s answer is that it would have been open to the defendant to increase Syntocinon to above the maximum albeit that that suggestion was not one that found its way into Dr Maresh’s report or the joint statement and only evolved as a proposition during his cross-examination.

Mr Martin points out that there was no need for VE at 15.00, if at 13.50 dilation was at 8cm then, if the next VE should have been at the time that full dilation could be expected (assuming normal progress in dilation as result of the continued Syntocinon infusion), full dilation would not have occurred until 15:50 hours and so a decision to reassess at 16:00 hours was plainly reasonable, especially when there was no sign of fetal or maternal distress. In any event this mother had had 6 VEs since admission for inducement and they are a procedure which is uncomfortable and invasive and should not be done except when necessary. That does not however answer the question of what plan was in place to see if dilation was occurring in circumstances where contractions were thought to be adequate (as Dr Maresh did at 14.50).

Had a VE been undertaken at 15:00 hours what would it have revealed? Mr Gillmer is clear that it would have revealed very slow dilation. He reaches that conclusion because even

Paragraph 4.12 of Mr Gillmer's original report records that it is his view that, on balance, a VE at 15:00 hours would have revealed that her cervix was no more than 9 cm dilated and she would even have crossed a 4 hour action line at this time.

In paragraph 26 of the joint statement when answering a question on whether he believed there had been any progress of labour between 13:30 hours and 16:15 hours his response was that there had been cervical dilation of approximately 1 cm in 2 hours and 45 minutes between 13.30 hours and 16:50 hours

Dr Maresh at paragraph 26 of the joint statement is also prepared to say

The point essentially made by the claimant is that that could have been recognised therefore at 15.00 hrs and letting things drift between 13.30 and 16.15 was substandard care.

There is an issue to resolve about causation in the event that there is a finding that the defendant should have proceeded to Caesarean section at 15:00 hours. It is agreed by the experts that a decision to proceed to Caesarean section at 15:00 hours would have resulted in knife to skin at about 16:00 hours with a VE about 5 minutes or so before at 15.55. Indeed it is agreed that any decision to go to Caesarean section would have actually resulted in knife to skin about an hour later with a VE about 5 minutes before.

In the joint statement Mr Gillmer contends that if a decision had been made to proceed to Caesarean section at 15:00 hours this would still have proceeded because the VE immediately prior to performing the Caesarean section would have shown that the cervix was still not fully dilated (Footnote: ⁵⁶).

Dr Maresh on the other hand thought that a VE at just before 16:00 hours would indicate that a vaginal delivery should be attempted and on balance would have been attempted. (Footnote: ⁵⁷)

In his oral evidence Mr Gillmer was clear that he would have continued to Caesarean section. He said that Miss Perkins would have been no more than 9 cm dilated and it would not have been reasonable to give her more time to deliver vaginally. His view was that he would have undertaken the Caesarean section unless she was literally about to deliver at the point of the pre-Caesarian VE with the fetal head at the perineum and descending. Also it was important to bear in mind that she would have been consented and anaesthetised and would literally have been on the table in the operating theatre.

The difficulty with that situation is that he assumes her to be 9cm dilated at 15.00hrs. She would therefore have been only 9cm dilated at 15.55 hours if there had been a further arrest in progress. In fact there was on any view slow progress albeit according to Mr Gillmer at a rate that suggested cephalopelvic disproportion. Mr Sheldon points out that once the decision to deliver by Caesarean section has been taken she would have been taken off the Syntocinon so it is likely that dilation would have not advanced much or indeed possibly at all between 15.00 hrs and 15.55hrs.

On the other hand clearly the birth process was not so advanced as would stop Mr Gillmer proceeding to Caesarean section in any event. It is clear that at 15:55 hours Courtney was not at the perineum descending because there was not full dilation until 16.39 and at 16.15 she was only at the spines. His view indeed was that occipito anterior position at the spines was the perfect position for a Caesarean section and since there was not full dilation at 16.15 because there was, according to the notes, part of the cervical rim still visible there was nothing to preclude a Caesarean section at 16.00 hrs.

In addition, Mr Gillmer’s position was that this Caesarean section was actually needed because there was cephalopelvic disproportion and so a vaginal delivery would in any event probably bring with it difficulties in the form of shoulder dystocia or possibly even worse. He drew attention to what was said in Turnbull and which I cite above at paragraph 112.

Dr Maresh takes the view that at 15:55 hours even if Miss Perkins were not fully dilated she will have been near full dilation and that this makes a Caesarean section dangerous because it would be necessary to disimpact the fetal head from the maternal pelvis which is a difficult manoeuvre which could involve distension and tearing of the uterus. His view was that the procedure is even more difficult in the case of an obese mother because fatty tissue tends to concentrate in the lower abdomen which is the area with which the surgeon would be concerned. Of course there are also the other risks associated with the procedure such as possible pulmonary embolism and the fact that the operation scars both the uterus and the abdomen.

His view was that it was obviously a consideration that the mother had been prepared for a Caesarean section, anaesthetised and consented and was expecting delivery to be by Caesarean section. However his view was that even in 1999 there will have been discussions with the mother who would be told a reassessment would be made before knife to skin and that although Caesarean section was the plan it was not inevitable that the plan would be followed through.

The allegation here relates to the treatment provided to Miss Perkins by Dr Elisabeth Adams at 15:30 hours. She was the senior registrar on call and was the only doctor involved in the birth from whom I heard. Her witness statement is in bundle 2 tab 5 page 28. Dr Adams qualified as a doctor in 1989 and had been working in obstetrics and gynaecology since 1990.

Her involvement with Miss Perkins commenced at 15:30 hours when she was contacted by Dr Tanden because Dr Tanden was concerned about the intrauterine pressure which had by that stage reduced to 75 mvds and wished to discuss that with Dr Adams as senior registrar. Dr Adam's response, recorded in the hospital notes was to double the dose of Syntocinon and re-examine in one hour.

Unsurprisingly, after this length of time, Dr Adams has no direct recollection of her involvement in this birth. She cannot recall whether a conversation with Dr Tanden was face-to-face or over the phone.

It appears that she did not examine Miss Perkins, this is one of the grounds of criticism levelled by Mr Gillmer. Had she done so and conducted a VE Mr Gillmer believes that she would have seen a cervix not fully dilated (because even at 16:15 hours there was still a rim of cervix) and she would then have realised that a Caesarean section was indicated.

Mr Sheldon put to her that where the patient had been on Syntocinon for 10 hours and had crossed the partogram action line at least 2 hours earlier it was incumbent upon her as senior registrar to at least examine the patient and not to rely on unreliable pressure readings from an IUP. She did not agree, she pointed out that Dr Tanden was an experienced registrar in whom she had confidence albeit actually she could not recall definitively whether Dr Tanden was male or female. She felt however that it would have been inappropriate to undertake an examination on the basis that it would have undermined Dr Tanden who was looking after Miss Perkins.

Dr Adams is clear that she would have advised having looked at the medical notes and the partogram and while being in possession of all relevant information because she was confident that Dr Tanden would have supplied her with this.

Initially another criticism was that the regimen suggested by Dr Adams included doubling the already maximum dose of Syntocinon. In fact it is now clear that while Syntocinon was doubled, volume was halved so that the effect was the same. The rationale was to avoid overloading Miss Perkins with fluid. Mr Sheldon in his final submissions suggests at paragraph 60 that Mr Gillmer stated he was flabbergasted by the decision to double Syntocinon. My note suggests that he understood the rationale of ensuring that there was no fluid overload.

The claimant's point is that even so, the recommendation was to continue with Syntocinon at a very high dosage in respect of a patient who had been on Syntocinon since 05:30 hours and on maximal or near maximal Syntocinon since 09:30 hours. And if that in itself was not irrational enough, the claimant says that to do so on the basis of IUP readings which were clearly meaningless was substandard care.

Dr Adams’ position was that high doses of Syntocinon over a lengthy period was not unusual. The effect could be the uterus became tired with the result that more stimulation was required in the form of more Syntocinon.

Mr Sheldon argues that the evidence of Dr Adams indicates that the culture at the defendant’s hospital was to avoid Caesarean sections at all costs. Dr Adams spoke of the necessity of proving to the consultants that no progress had been made in labour notwithstanding adequate contractions before he or she would permit a Caesarean section. She indicated that the ethos of her training was to try and achieve vaginal delivery because of the increased risks involved in Caesarean section and she made reference to the risk of pulmonary embolism and scarred uterus. Her view was that it was a disservice to a patient to give her an unnecessary Caesarean section but that neither she nor the unit had a problem in undertaking Caesarean sections where they were necessary.

It is argued that it was clear that Miss Perkins was at clear risk of a complicated vaginal delivery including shoulder dystocia because all the risk factors were present. Indeed in her oral evidence Dr Adams mentioned that it crossed her mind that there may be cephalopelvic disproportion but that most commonly primigravidae fail to progress in labour because of inadequate contractions and so it was appropriate to continue with monitoring to see if this was so in this case.

Dr Adams indicated that in her view Miss Perkins was no more specifically at risk than any other primigravida of shoulder dystocia despite a recognition that the risk factors were present here. Her basis for that view was that shoulder dystocia is unpredictable and the only big risk factor that Dr Adams knew of was previous shoulder dystocia. This does not appear to be supported by the experts who accept that Courtney was at much greater risk.

I have to say I have some sympathy with Dr Adams who was giving evidence about one birth on a busy ward over 15 years previously. There is criticism that she did not see this patient at 15.30. However, on the basis of her evidence it seems to me that even if she had undertaken a VE there would have been no progression to Caesarean section in the light of the fact that she believed that there may be inadequate contractions here and indeed that was the basis upon which Dr Tanden had approached her. That also seems clear not least on the basis of the joint experts view that had Miss Perkins been examined at 15:30 hours Dr Adams would have seen that there had been some, albeit slow, progress in dilation. It also seems to me that no Caesarean section would have been ordered in view of the ethos that every mother should be given the chance of a vaginal birth and Miss Perkins had not yet exhausted that chance. I am fortified in this view by the fact that even following a VE at 16.15 there was no progression to Caesarean section.

The real issue is whether there ought to have been a decision at 15:30 hours to undertake a Caesarean section and whether in that event a Caesarean section would have taken place at 16:30 hours.

We know that Miss Perkins was fully dilated by 16:39 hours so it is likely she would have been near full dilation at 16:25 hours (there was after all only the rim of the cervix visible even at 16:15 hours). On the other hand we know that the head was not delivered until 17:50 hours and so at about 16:25 hours there was still some time before the point was reached at which Mr Gillmer would abandon commencement of a Caesarean section.

However, the fact is that Mr Gillmer's own evidence from the witness box was that by 16:25 hours some clinicians would have permitted a vaginal delivery to go ahead in the light of the state of dilation and the position of the fetus. That would, it appears, have been the decision of Dr Maresh. Mr Gillmer did not suggest that he would necessarily have been critical of the decision. It is clear to me that under those circumstances even if there was a breach of duty in failing to decide on a Caesarean section at 15:30 hours the claimant cannot on balance establish causation.

Inevitably if the claimant cannot establish causation in respect of a decision made at 15:30 hours she cannot establish causation in respect of a decision made 45 minutes later.

In the circumstances I do not think it necessary to dwell on this allegation at all save to say that it is a criticism of Dr Adams because a VE was undertaken at this time which must have revealed dilation of 1 cm in 2 hours 25 minutes (Footnote: ⁵⁸) . The contention is that it should have been clear in the light of the chronology that the very slow rate of progress was attributable to cephalopelvic disproportion.

The fact is that Miss Perkins did actually proceed to full dilation by 16:39 hours but of course Mr Gillmer's position is that if you pump enough Syntocinon into the mother you will eventually force the labour.

I acknowledge however that it would lack logical force to conclude that on balance a decision to proceed to Caesarean section at 16:15 hours would have resulted in a Caesarean section at 17:15 hours when I am satisfied that a Caesarean section envisaged for 16.30 following a decision at 15.30 hours justifiably may not have taken place.

In the light of my observations in paragraphs 155 and 159 above I need to confine myself only to decisions at 13:50 hours and 15:00 hours.

I acknowledge that the credentials of both obstetric experts are very impressive as indeed are those of the expert midwives.

Mr Gillmer's are set out a commencement of his report. He has been a consultant in obstetrics at John Radcliffe Hospital, Oxford since 1979 until he retired from practice in January 2010. He was an examiner in this field until 2009 and also an international lecturer.

The CV of Dr Maresh is at page 329, towards the end of his report. He is a consultant obstetrician at St Mary's Hospital in Manchester and has held that post since 1986. He is also a lecturer and a prolific writer of learned papers published in peer reviewed journals He has particular responsibility for the delivery unit at St Mary’s and he remains actively involved in intrapartum (Footnote: ⁵⁹) care. In that respect he differs from Mr Gillmer who has retired from practice.

Mr Martin draws attention to the fact that Mr Gillmer is now retired while Dr Maresh remains in practice. At paragraph 20 of his final submissions Mr Martin suggests that Mr Gillmer is “out of touch” and that he is “now remote from obstetric practice”. Dr Maresh on the other hand remains responsible for a unit delivering about 8000 babies a year.

Of course, I am concerned with practice in 1999, not 2014. In 1999 Mr Gillmer was actively involved in intrapartum care.

It may be surprising that two such eminent gentlemen cannot agree as to whether a Caesarean section was the only appropriate response to the situation that confronted Dr Tanden at 13.50 hrs but that is clearly the position. Although I accept that there is agreement between Dr Maresh and Mrs Brydon that a Caesarean section was not necessary at any time.

I remind myself that the onus is on the claimant to establish, on balance, that the defendant’s failure to proceed to Caesarean section in those circumstances was negligent. Since I am presented with evidence to the effect that there is a body of medical practitioners, represented by Dr Maresh who in 1999 would not have seen it as negligent to continue with Syntocinon infusion and monitor pressure by use of an IUP in the circumstances with which I am concerned the claimant can only succeed if I am satisfied on balance that such a view lacks logical force.

Whilst I have the utmost respect for Dr Maresh and Mrs Brydon after much consideration I have come to the conclusion that it does lack logical force.

The fact is that it is agreed at least by the obstetricians, if not by Mrs Brydon that all, not some, but all, the risk factors described at paragraph 73 above for shoulder dystocia were present at 13.50 hrs. In so far as Dr Maresh may have thought at one time that secondary arrest was absent it seems clear from his oral evidence that he accepts that it was present, even if the dilation had not literally stopped.

In addition, as well as the agreed risk factors there is evidence here of a “good size baby”. Dr Maresh himself interpreted that as a baby suspected of being "larger than average" (Footnote: ⁶⁰). Not in itself perhaps a determinative factor but clearly one of some relevance when added to all the recognised risk factors.

In addition Miss Perkins was clearly in dysfunctional labour despite having been on Syntocinon since 05.30 and at maximal or near maximal dosage since 09.30.

The obvious question therefore is what was the logical basis for believing that this dysfunctional labour even may have been caused by inadequate uterine activity rather than cephalopelvic disproportion?

Dr Maresh concedes that disproportion was a possible cause of the secondary arrest, however that is defined but would go no further than that. I do not see how it can be thought that it was not probably caused by disproportion, as Mr Gillmer contends when set against the background that I have set out in detail above and which includes not just the extensive Syntocinon infusion but that this uterus was hypercontracting according to the RCOG and NICE guidelines referred to in paragraph 48 and 49 above and had been since 09:30 hours.

Dr Maresh argues that the frequency of contractions does not assist in an assessment of their strength (Footnote: ⁶¹). It is right that on the partogram, strength is noted as only "moderate". However the evidence was that it is difficult to assess manually the strength of a contraction particularly in obese women and indeed that with obese women the strength of contractions is often underestimated. Of course, if that had happened here than contractions may have been stronger than the partogram suggests.

It is also right to say that the tocograph shows some evidence that the contractions were, at times, strong in so far as strength is a function of duration, as is clearly recognised by the RBP Dysfunctional Labour Document. (Footnote: ⁶²). So it seems clear that there was at least some evidence of strength at 13.30 in any event and which suggested that strength or lack of it was not really the problem in respect of failure of progress of dilation.

Mr Martin argues that the RBPs demonstrate a practice accepted as proper by a responsible body. (Footnote: ⁶³) However, as regards the suggestion that the RBP Dysfuctional Labour Document suggested that insertion of an IUP catheter was best practice, that is based on the extract from the document set out in paragraph 64 above. It seems to me to be clear that that applies to a spontaneous birth, not, as here, an induced birth. That is clear from the reference to “spontaneous birth” and the “commencement” of Syntocinon where dysfunction is indicated. In an induced birth Syntocinon infusion will have already commenced.

In any event it seems, as Mr Sheldon asserts in paragraph 21 of his final submissions, the RGB Dysfunctional Labour Document was not actually strictly complied with on the basis that the target range set by Dr Tanden for IUP pressure readings was 150 to 200 mvds but the document states that inadequate activity is indicated by less than 200mvds. In addition Syntocinon was not reduced as per the document when contractions were at 3-4 per 10 minutes even though in some periods the length of contractions evidenced by the tocograph exceeded 45 seconds.

It is difficult in those circumstances to understand the basis upon which Dr Maresh contends, at paragraph 9 of the joint statement, that

“(He) considers that trust guideline is well followed by insertion of an IUP catheter”.

In any event, there is the question of the value of the IUP readings. I need not dwell on that because it is covered elsewhere save to say that Dr Maresh himself concedes that it is possible that it should have been appreciated earlier (than 16.30) that the IUP was providing inconsistent information.

However all that does not address the fundamental question of what was to be done if there was clear evidence of inadequate uterine contractions notwithstanding the amount of Syntocinon that had been infused over many hours? It will be remembered that inadequate uterine activity in itself would not exclude the possibility (or in my view, probability) of cephalopelvic disproportion because dysfunctional labour in a mother with an optimally positioned fetus can be the result of a combination of inadequate uterine activity and disproportion.

It has been noted on times almost without number that Miss Perkins had essentially been on maximum Syntocinon since 09.30 (Footnote: ⁶⁴). How can it logically have been thought that a continuation of that regime was likely to somehow cause the uterus to spontaneously resume dilation at an acceptable rate?

The answer from Dr Maresh was that if it did not Miss Perkins could be infused with greater than the maximum dosage of Syntocinon. I have to say that that was a surprising answer in light of the fact that 96ml/hr is expressed even by Dr Tanden as the maximum and that the literature also expresses that to be the maximum unlicenced, I emphasise, unlicenced, dosage. Even Dr Adams did not appear to contemplate exceeding the maximum (or seeking a consultant’s permission to do so) without taking steps with regard to the volume of Hartmanns solution which had the effect of keeping the dose equivalent to 96ml/hr.

In addition it is important to record that on Dr Maresh’s own evidence, Syntocinon can affect not just strength of contractions but also frequency. Indeed, as I understand it, its primary purpose is to start and then maintain contractions. So further Syntocinon would not just possibly increase strength but also frequency in a woman who had been hypercontracting for hours. Dr Maresh did not contradict Mr Gillmer’s evidence that hypercontractability can be a problem for a fetus who, metaphorically, has to hold its breath during every contraction.

Furthermore, Dr Maresh’s view that the decision at 13.50 to further consider the issue of inadequate uterine contractions over a further time was premised on the basis that labour had not stalled but was progressing slowly. That was a premise that in cross examination he did not seek to maintain. In so far as that premise informed his view as to the logic of the course adopted by Dr Tanden, as it clearly did, it is inevitably undermined by the concession that Miss Perkins was indeed suffering secondary arrest.

I turn to the risks inherent in Caesarean sections and which Dr Maresh and indeed Dr Adams referred to including pulmonary embolism and scarring of the uterus and the abdomen and I remind myself that there were added risks in the case of Miss Perkins because of her obesity (Footnote: ⁶⁵). Clearly these must not be underestimated but neither according to Mr Gillmer should they be overestimated and they must be set against the risks of a virginal delivery where there is probably disproportion. That in my view is clearly the message from the passage in Turnbull to which Mr Gillmer referes in paragraph 112 above and I accept it.

Dr Maresh argues that every primigravida should be given the chance of vaginal delivery and of course I accept that birth by that means is very much the preferred option. Mr Sheldon suggests that the evidence of Dr Adams was that the ethos at the defendant hospital was that vaginal birth should be attempted at any cost.

Even Mr Martin points out at paragraph 39.3 of his final submissions

“it was clear that there was an underlying evidence based philosophy at Liverpool Women’s Hospital that CS rates were too high, that the majority of first mothers could achieve a vaginal delivery, and should be given the chance to do so and that true cases of cephalopelvic disproportion were rare”

Having said that, I do not accept that the ethos was to carry out vaginal deliveries at any cost. When that was put to Dr Adams she disputed it and said that Caesarean sections were carried out on a regular basis when they were properly called for but it has to be said, on her evidence, there was clearly a high threshold to cross before a consultant would agree to a Caesarean section. I do not criticise the defendant for that but I recognise that Mr Gillmer’s view was that he doubted that those in charge at the defendant hospital (whom he knew but from whom I did not hear) were likely to be as inflexible as Dr Adams suggested.

As for the absence of Dr Tanden, it may have been that Dr Tanden could have thrown more light on her management at 13.50 but of course I have not had the advantage of hearing from her. Even if it is inappropriate to draw adverse inferences from her absence, it is difficult to draw any positive conclusions about her treatment in the absence of any evidence from her.

Although it was not suggested by the defendant that Dr Tanden’s decision was made in the agony of the moment and that it would be wrong to equate a mere judgment call with negligence, I have considered that but I have to say that I do not see this in that way.

This is the sort of issue that the staff on a busy delivery suite had to deal with on a standard basis as part of their function. Shoulder dystocia itself was seen, as Dr Adams said, as a “common emergency”. It is safe I think to assume that dysfunctional labour and crossing the action line on the partogram therefore will have been even more common.

Furthermore, in this case there was no split second in which a decision had to be made to avert a crisis. This issue was, in other words, not sensitive in terms of seconds but rather in terms of minutes. That in my view takes it out of the “agony of the moment” scenario and indeed that, and the lack of logic, also takes it out of the “wrong judgment call” scenario.

I have had regard to the point raised by Mr Martin that if the defendant had worked to a 4 hour action line this would not have been crossed. Mr Gillmer does not agree but in my view the overarching consideration was that this was a dysfunctional labour on the basis of the standard definition at the time and that was how it was seen by the defendant as a result of their own protocols. In the circumstances it was incumbent on the defendant in any event to take appropriate and logical action to minimise the risk of harm.

For all these reasons and as a result of the analysis of the management set out at length earlier in the judgment, I am driven to the conclusion that the decision not to proceed to Caesarean section at 13.50 did indeed lack logical force and that accordingly negligence is established. Causation is not an issue as regards 13.50. and so does not need to be further addressed. (Footnote: ⁶⁶)

I emphasise that I have been conscious of the risk of reaching such a view with the benefit of hindsight and the knowledge that there was indeed shoulder dystocia in this case which is an event that is very hard to predict. I am satisfied that the decision at 13.50 and the resultant failure to proceed to Caesarean section was illogical at the time, for the reasons expressed.

I appreciate that having made my findings as regards the conduct of the defendant at 13.50 I need go no further. The claimant is entitled to her judgment. In the event that I am wrong however and/or because there may be arguments in respect of the costs of prosecuting and defending the other issues I go on to consider briefly the position as at 15.00 hrs and the question of whether the birth itself was mishandled. I intend to spend no further time on events at 15.30 and 16.15 in the light of my conclusions as to causation referred to in paragraphs 155 and 159 above.

Indeed I need not analyse to any significant extent whether a decision not to undertake a VE at 15.00 was negligent unless I am satisfied that a Caesarean section would have taken place if such an examination had taken place. The claimant cannot succeed on this limb of the claim even if there is a breach of duty unless she can establish that any breach caused a failure to proceed to Caesarean section.

I address the issue of causation at 15.00 from paragraphs 131 above and I need not rehearse them here.

It seems to me that an analysis of the views expressed by Dr Maresh cannot sensibly result in the conclusion that they lack logical force and that no obstetrician acting reasonably would not permit a vaginal birth if presented with the situation that pertained here at 15.55 if in 1999 they had been presented with a patient near full dilation.

I say “near full dilation” because 20 minutes later at 16.15 a VE revealed only a cervical rim mainly anterior pushed back and that the fetus was at the spines (Footnote: ⁶⁷). Mr Gillmer may well have proceeded to Caesarean section at any time before the fetus was in the pelvis descending and perhaps that may even be the preferred course of action but that is not the test. The test is the Bolam test and whether any contrary view expressed lacks logical force.

I accept that there is a probability here that there is disproportion which may well indicate Caesarean section in any event but on the other hand I accept that Caesarean section at or near full dilation with the fetus at the spines carries risks especially with an obese mother.

In addition Mr Gillmer’s view expressed in paragraph 127 that dilation was only about 9cm at 15.55 is an assumption that may or may not be correct. There is no actual evidence of the extent of dilation at that time. All that is known for certain is that 20 minutes later Dr Adams recorded the cervical rim as mainly anterior and the mother as starting to feel pressure. Dr Adams indicated that at 16.15 she believed that all the indications were that MissPerkins was about to deliver. (Footnote: ⁶⁸) That is obviously suggestive of dilation very much near completion. It is likely therefore that she would not have been far off at 15.55 especially since she was clearly not a speedy dilator.

I do not overlook that a decision to proceed to Caesarean section at 15.00 will have resulted in her coming off Syntocinon with the result that whatever was the state of dilation at 15.55 it will have been less than that absent the Syntocinon but the Syntocinon appears to have been working slowly in any event and so I cannot be satisfied that the situation at 15.55 would have been so different that a Caesarean section remained the only logical course of action.

Accordingly even if there is a breach of duty at 15.00 hrs I am not satisfied that causation is established because I am not satisfied that any resulting decision not to undertake a Caesarean section at 15.55 hrs would have been Bolam negligent.

Having said that I should add that I do have difficulty in understanding why no VE was undertaken at about 15.00 to establish whether the cervix was dilating. I refer to paragraphs 124 to 126 above. A decision not to undertake a VE until 15.50 or thereabouts when full dilation could have been assumed to have occurred strikes me as lacking logic where that assumption is based upon dilation of 1cm/hr from 13.50; a speed of dilation that had not been achieved since 09.30 that morning despite maximal Syntocinon infusions.

I appreciate that VEs should be undertaken sparingly but nevertheless there seems to me to have been good reason to do one at about 15.00 and there is no suggestion that Miss Perkins would have objected.

See paragraphs 155 and 159 above

As I have said, the fact that Courtney suffered BPI following shoulder dystocia is not in dispute, the issue is whether the midwives involved in the delivery were negligent in their handling of the delivery and that BPI was the result.

It is accepted by the claimant that BPI is not inevitably the result of the application of excessive traction although that is apparently the usual cause. It can be the result of natural maternal propulsive forces sometimes where the baby’s head has not restituted. It seems to me to be irrelevant that, statistically, BPI is likely to result from excessive traction. The issue I have to determine is whether, on the evidence, that is what caused it here.

The allegations of negligence are that;

In determining these matters I have had the benefit of the oral and written evidence of Miss Perkins and her mother, Mrs Kathleen Perkins as well as Courtney’s father, Mr Kenneth Webb, all of whom were present in the delivery room at the relevant time. For the defendant I have heard from 2 of the 3 midwives who conducted the delivery namely midwives Gilbertson (nee Adekoya) and Horridge (nee Charters). The third, Midwife Sword has neither provided a witness statement nor given evidence orally.

As remarked earlier, I have the expert reports of Mrs Tranter and Mrs Brydon and their joint statement and some input also from the obstetricians. In addition I have the hospital notes of the birth kindly summarised by Mr Sheldon in what has become the appendix to this judgment. Finally, there is a postnatal note at page 37 of bundle 4 which records that full delivery was achieved after delivery of the posterior arm and recording that the birth was afflicted by shoulder dystocia.

Whilst Mrs Tranter concludes from an analysis of the notes that the staff appear to have taken “all appropriate steps to achieve Courtney’s delivery in this frightening obstetric emergency” (Footnote: ⁷²) she has concerns that the speed with which the steps were taken indicated that an inappropriate amount of traction was applied” (Footnote: ⁷³)

At page 17 of her report she develops that but essentially she notes that there are only 2 minutes between the delivery of the baby’s head and her body and only 90 seconds after diagnosis of shoulder dystocia.

This period of 90 seconds is, she feels, a very short interval in which to go through the manoeuvres identified in the notes but she recognises that timings which would have been written retrospectively are approximate and that the interval between delivery of the head and the body may have been slightly longer. If they are accurate though she feels that they demonstrated a hurried approach to achieving delivery “which may have lead to excessive traction being applied” (Footnote: ⁷⁴)

At page 21 of her report she is actually more robust. She records that it is her opinion that excessive traction was applied. She points out that the notes suggest that

“there were two midwives primarily involved in the delivery, firstly Midwife Charters (Horridge) followed by Midwife Adekoya (Gilbertson) with the delivery then achieved by Midwife Charters who is named on the delivery summary. Despite the appropriate steps being taken to resolve this emergency situation this changeover of personnel together with the speed with which the manoeuvres were apparently undertaken, in my opinion led to excessive traction being applied”

In fact the evidence of the midwives is that it was probably Midwife Gilbertson who delivered the head and Midwife Horridge the body (Footnote: ⁷⁵).

Mrs Brydon points out that there is “no evidence in the notes of excessive traction and no evidence in the notes or the witness statements of lateral flexion of the neck” (Footnote: ⁷⁶). I have to say that I would have been surprised to see any recording that excessive traction had been used and the fact that there is no such recording does not really assist in determining whether there was excessive traction. I think Mrs Brydon puts the issue for determination succinctly in her paragraph 75

“If there was panic and all the midwife did was pull increasingly hard in order to deliver the baby then this is evidence of substandard care. If, as described in the records, there was recognition of delay with the shoulders due to a compound presentation, the midwife called for assistance, the maternal legs were hyperflexed and suprapubic pressure was applied then the care was appropriate”

It is therefore a question of fact.

On the question of excessive force Mrs Brydon refers in her report at paragraph 80 to an interesting article at page 207 of bundle 3 entitled “Risk Factors for Shoulder Dystocia: An Engineering Study of Clinician Applied Forces”. At page 209 the authors conclude that

“a clinician’s first reaction to a difficult delivery is to exert considerably larger forces than he normally would.”

That would support the contention that excessive but inadvertent pressure may have been applied here.

The same conclusion can be drawn I think from paragraph 83 wherein Mrs Brydon concedes that it is often quoted that the traction needed to cause BPI is 100 Newtons or more and that

“it is very easy to apply pressure above 100 newtons if the head is out of line with the body or is moved laterally away from it”

Courtney’s head was not restituted immediately after the head was delivered and so was out of line with her body.

On the other hand, she points out that a failure in restitution itself involves pressures on the baby’s neck and shoulders especially in a birth involving a large woman and the addition therefore of even mild traction may well be sufficient in such circumstances to increase the risk of injury without there being negligent traction. (Footnote: ⁷⁷)

I have of course considered the midwifery joint statement in detail. I have to say that in the context of the delivery there appears to be a tendency of both experts to analyse the factual evidence and reach conclusions as to the facts. That of course is my job but having said that, I do not blame them, to a large extent that is the natural result of the questions they have been asked to answer.

The fact is that the midwives do not appear to be at variance as to what conclusion to apply as to the standard of care based on those facts. If I find an unjustifiable failure to place Miss Perkins in McRoberts or find that excessive traction or flexion was applied or that fundal pressure was applied then there is a breach of duty. If that was a material cause of the BPI then there is causation.

I now come to the witnesses of fact whose evidence must be prefaced with the observations that they are giving evidence about events over a short period of time 15 years ago. In addition the atmosphere at the time was inevitably not so tranquil that it would have been easy to commit things to memory there and then for future forensic analysis.

As regards McRoberts, it will be recalled from the extract cited from Croft v Heart of England at paragraph 11 abovethat this requires the mother to be placed flat with her legs hyperflexed onto her abdomen.

The evidence of Miss Perkins, her mother and Mr Webb is that that did not happen.

In her witness statement Stacey Perkins says that nobody tried to alter her position and she just remained on the bed while pushing. She recalls having her mother in a headlock which she suggests would not have been likely if she were flat on her back.

In her oral evidence it has to be said that she accepted that when the dystocia occurred there was a lot of action in the room and she was, understandably, panicking and her evidence has to be considered against that background but her firm recollection was that her back was at an angle in that she was neither sitting upright nor laid down. She was tilted with some pillows beneath her back.

She spoke of recalling being directed to place her feet apart on the hips of a midwife and Mr Webb and recalls another midwife pushing on her tummy but she cannot say which part of her tummy. She remembers pushing so hard on Mr Webb’s hip that she thought she may injure him. She recalls that the reason she was given for placing her feet in this way and for the pushing on her tummy was to “help to get Courtney out” and that when she was in the position of her feet pushing into the hips of others she moved slightly down the bed but was still sufficiently propped up to see Mr Webb’s face.

I should mention that she has a recollection of a discussion with staff at some time about a Caesarean section but nowhere does that appear in the notes.

At paragraph 18 of her statement she states that Stacey was half sat up in bed, propped up on some pillows. She makes no reference to Stacey’s feet being on the hips of others and she suggests that a plan was considered at the time that the dystocia was identified to give Stacey a Caesarean section. (Footnote: ⁷⁸) It has to be said that on the basis of the obstetric evidence it seems very unlikely indeed that a Caesarean section would have been undertaken at that point.

In her oral evidence she recalls the feet on hips. Her evidence was that Stacey’s legs were “as far back as they could go” and were raised and that that was all part of the procedure adopted to get Courtney delivered. While she can recall that a midwife did apply abdominal pressure to Stacey she cannot say to which part of the abdomen it was applied. She too recollects being in a headlock.

At paragraph 18 of his statement Mr Webb recalls that he was told that they needed to get Stacey “in a special position to get the baby out” and, at paragraph 19 that she was told to put her legs “right back”.

In his oral evidence he indicated that the instructions about the position that Stacey needed to adopt occurred before the delivery of Courtney’s head -- therefore before dystocia requiring the special position was even indicated. He too felt that when in this position Stacey had her legs back as far as they could go and her knees were bent but that the angle of her back did not change. She remained propped up on pillows.

Mr Webb is the only witness to recall excessive traction. From paragraph 21 of his witness statement he deals with what he saw. I need not reproduce what he says but the picture he paints is a disturbing one. Indeed at paragraph 21 he suggests that the traction used was so great that not one midwife but two were needed to exert it and at paragraph 23 that the baby was “yanked” out.

In his oral evidence he conceded that he was unclear when all this pulling exactly took place. It may have done so even before the delivery of the head. That however does not sit well with the chronology of his statement which clearly describes this excessive traction being applied after delivery of the head.

She had qualified as a midwife in 1997. Notwithstanding that shoulder dystocia is an emergency she has no recollection of events and her evidence is based on the notes.

In her witness statement (paragraph 17) she is clear that the notes indicate that an attempt was made to put Stacey Perkins in McRoberts but her habitus (size) precluded it.

She confirms however she and her colleagues “would have been able to achieve some form of abduction with her legs and hips”. Clearly legs on hips, knees bent and legs back as far as they would go was “some form of abduction”.

She was clear that if the notes indicate that she applied suprapubic pressure, as they do at 17.51 hours, then that will be what she did. Her evidence initially was that she did not deliver the head or shoulders, merely the body and so would not have used any traction that would have had any effect on the issues before me. In cross examination she said that she swapped places with Midwife Gilbertson after delivery of the head but she used no traction to deliver the shoulders but rather the baby was delivered spontaneously by maternal effort and suprapubic pressure. There is plainly an inconsistency there.

In her oral evidence she was asked by Mr Sheldon about the entry that she made in the postnatal notes at page 37 of bundle 4 wherein she records shoulder dystocia and that the posterior arm was delivered first. That led to a discussion about the posterior arm technique (Footnote: ⁷⁹). Dr Maresh opined at paragraph 37 of the joint statement that with that technique excessive traction cannot have been applied to the right side of the baby’s neck. She was clear however that the technique illustrated was not attempted and her report was not intended to convey that it was. Her entry at page 37 was merely recording as a fact that the posterior arm was delivered first.

She understood that McRoberts requires the mother to be flat, she cannot recollect whether in fact Miss Perkins was flat or what the difficulties were in putting her flat if there were any. She accepted that the position described by the family members was not McRoberts but was clear that that will have been attempted, on the basis of the notes.

She understood the need for clear and comprehensive notes of the type of manoeuvre used, the time taken and the amount of force used and the outcome of each manoeuvre attempt as advised in Myles Textbook for Midwives (Bundle 3 tab2 page 276)

She qualified in 1991 but she too has no recollection of this incident and her evidence is based on the notes. At paragraph 7, after dystocia was indicated, she reports unsuccessful attempts to put Miss Perkins in McRoberts and at paragraph 11, Midwife Horridge applying suprapubic pressure while she had a hand on the baby’s shoulder, not to apply traction (and indeed no traction, not even gentle traction was applied) but to guide the baby out.

She was aware of the Wood Manoeuvre but there was no need to use it because the baby was fully delivered without having to resort to it. She thought that actually it was she who delivered the head and shoulders and only then did Midwife Horridge take over.

In cross examination she too accepted that McRoberts involves laying flat but postulated that Miss Perkins could not be laid flat because she had an epidural inserted. The suggestion that that would prevent a patient laying flat was not supported by the other medical witnesses to whom it was put and in any event such a reason would not justify describing a failure to achieve McRoberts on “habitus”.

She was clear that she did not apply traction gentle or otherwise even though there may have been in excess of a minute between delivery of the head and the shoulders because, if she had, it would be in the notes. She accepted therefore that the strength of her evidence was dependent on the accuracy of the notes but she was clear that sometimes all it takes to overcome the dystocia is suprapubic pressure and maternal effort.

It is clear that McRoberts was not achieved but that does not signify negligence if it was attempted and it simply could not be achieved.

I have no doubt it was attempted. That is clear from the notes themselves written well before there was any suggestion of the birth becoming the subject of litigation. The fact is that the notes clearly indicate that the midwives were aware of McRoberts so why would they not attempt it in the very circumstances in which it is intended to apply?

As to why they did not succeed, after this length of time other than that it was referable to habitus, it is in my view entirely understandable that they cannot recall. I do not criticise them for simply recording that their failure to achieve it was down to habitus without giving more detail. With the benefit of hindsight it would have been nice if they had but it goes without saying that absence of hindsight afflicts us all (Footnote: ⁸⁰) .

Furthermore, it was clear, even on the evidence of the family, that an alternative was tried. It can hardly be said that the manoeuvre chosen, involving maternal feet on the hips of two people on either side of the bed with knees bent and legs as far back as they can go, is any easier than McRoberts so it is difficult to see why this manoeuvre would have been chosen over the recognised manoeuvre if the latter were possible.

I am satisfied that the claimant has fallen well short of the necessary threshold required to establish that there was a negligent failure to achieve McRoberts.

There is, to put it simply, no evidence of fundal pressure being applied. Not even the family positively assert it and it was well recognised in 1999 and had been for some years prior to that that fundal pressure should not be applied at all. The notes record the application of suprapubic pressure and there is simply no reason to doubt them

That allegation must also fail.

This issue presents somewhat greater difficulty but nevertheless I am not satisfied that it has been established that excessive traction was applied.

First it is important to repeat that it is accepted that not all BPI is caused by excessive traction but can be caused by maternal propulsion. Mrs Brydon herself recognises that it does not require the application of excessive traction to cause BPI.

The fact that statistically the great majority are caused by excessive traction cannot assist in the determination of what occurred in a specific case.

It is right to record that Midwife Gilbertson who appears to have been dealing with the delivery at the relevant time was an experienced midwife who had been qualified for 9 years.

She was aware of the dangers of traction and clearly aware of the steps to be taken to achieve delivery without it, not just McRoberts and suprapubic pressure but also the Woods Manoeuvre.

It was her clear evidence that there was no need to proceed to Woods because Courtney was delivered spontaneously with a little guiding.

I have considered carefully Mr Sheldon’s points made from paragraph 86 of his final submissions that maternal effort and suprapubic pressure are unlikely to have been enough.

He contends at paragraph 87 that Courtney was born within 2 minutes of the dystocia having been indicated despite Miss Perkins having been pushing for 82 minutes prior to that. However that reference to 82 minutes is from the time that pushing commenced at 16.39. It offers no assistance on how long one might have to wait for the body to follow the head down the birth canal into the outside world.

Further the midwives did not do nothing. They used suprapubic pressure, which itself can have the effect of solving the problem and they put Miss Perkins into a position as near to McRoberts as they could. It will be recalled that even Mr Webb and Mrs Kathleen Webb agree that her legs were as far back as they could go. In addition the fact that the posterior arm was delivered first is not without relevance. That in itself can free the fetus. As the posterior arm comes forward the angle of contact between anterior shoulder and the symphysis will change so that the anterior shoulder may well spontaneously be able to slide under the symphysis. I do not accept that it is improbable that these could have worked without any further intervention.

In paragraph 88 Mr Sheldon argues that a finding that excessive traction was not used would be to suggest that midwife Gilbertson acted in a counterintuitive way based not least on the research referred to by Mrs Brydon. But the fact that something is counterintuitive does not mean that it does not happen. If that is what it meant then every child subject to dystocia would be subjected to excessive traction. It simply means that the temptation to pull too hard must be guarded against.

As to paragraph 90 of his submissions, even if traction were used, and the consensus of the experts is that gentle traction is permissible, there is no evidence of excessive traction other than the fact that there was BPI (but I have dealt with the fact that BPI can be caused by processes other than by excessive traction) and the evidence of the family, which I shall come to shortly.

I cannot find the reference at page 389 of bundle 3 that Mr Sheldon refers to in paragraph 91 of his submissions but even if there is something in the joint statement that suggests that the obstetricians find it surprising that even in as much as a minute in an emergency situation a midwife could resist the temptation to apply even some traction, even when gentle traction is permissible, I have to say that I do not see that as sufficient to make a finding against an experienced midwife that she did apply traction when her evidence is that the time was spent trying to guide the shoulder away from the obstruction to its progress- especially when the there is a note that the posterior arm was delivered first and which in itself is consistent with Midwife Gilbertson’s evidence of attempting to guide the posterior shoulder rather than simply pull.

I should also add that Midwives Gilbertson and Horridge were not the only practitioners present. There was a more senior midwife present, Midwife Sword and possibly Dr Adams. It is likely that if either of them had seen Midwives Gilbertson or Horridge prepare to undertake a manoeuvre that was dangerous to the child they would have intervened.

As for paragraph 92, the fact that there was only a very short time between the occurrence of the problem and full delivery may well be the result of the steps taken. It is not a basis for finding that traction was excessive. The suggestion by Mr Sheldon that the second attempt at delivery must not have coincided with a contraction and that delivery is therefore even more likely to have been accompanied by traction depends on the timings in the notes being entirely accurate. Mrs Tranter stated that they would be made afterwards (Footnote: ⁸¹) so in my view in any event it would be wrong to make a finding of negligence on the basis that timings are completely accurate.

As for the evidence of Mr Webb, with respect to him I simply do not accept that there would have been yanking as he describes much less two midwives pulling on the baby in a way reminiscent of some sort of tug of war. There are clear inconsistencies in his evidence. That is hardly surprising in the light of the passage of time and the emergency prevailing in the delivery room at the time. I have no doubt that he has done his best and had no intention of seeking to mislead but in vital respects his evidence simply lacks credibility.

In all the circumstances I am not satisfied that the claimant has established that the delivery was negligently handled.

I propose to give judgment for the claimant on the basis of my finding as to events at 13.50 hrs but I am not satisfied that liability attaches to the defendant in respect of any of the other allegations.