DS v Northern Lincolnshire and Goole NHS Foundation Trust (Rev 1)

The Claimant and his witnesses have anonymity. DS was born by caesarean section at 1529 hours on 4 June2005 after an unexpected emergency in which his mother's placenta had partially separated from her uterus during labour. He is now nearly 11 years of age. His mother FS was 19 years old and healthy when she went into labour spontaneously at 40 weeks gestation. There had been no complications during the pregnancy (her first). Labour lasted 13 hours, 20 minutes. Near the time of his birth and immediately afterwards DS suffered a period of acute, damaging hypoxia, which caused brain damage resulting in spastic cerebral palsy. There is common ground that he has certain disabilities and is obviously a much loved, vibrant child with a very good sense of humour.

DS acting by his mother and litigation friend seeks damages for the injury and loss said to have been caused bythe negligence of Northern Lincolnshire and Goole Hospital Trust's (the Trust) midwifery and medical staff in the management of part of DS's mother's labour at Scunthorpe General Hospital. According to Myles Textbook for Midwives (Edited by D. Fraser and M. Cooper) 14^th edition, placental abruption is an accidental occurrence of haemorrhage that occurs in 0.49-1.8% of all pregnancies. Severe separation of the placenta is an acute obstetric emergency.

By s.1 Congenital Disabilities (Civil Liability) Act 1976 a duty of care is owed to the unborn child. This trial isconcerned with issues of breach of duty and causation.

The case brought on DS's behalf alleges that there was negligent delay at the end of his mother's labour in thatthe midwives failed to realise that his heartbeat had dropped to dangerous depths until 1500 hours; that this was because inadequate monitoring was being carried out: that once they discovered this the labour should have been managed in such a way that medical assistance was called for minutes before it was and that the doctor who then arrived should have made the decision to deliver by emergency caesarean section at least a couple of minutes before she did. But for the negligent delay DS's delivery would have been achieved 6 or 9 minutes before 1529 hours and the saving of time would have been sufficient to reduce the effects of the period of damaging hypoxia to a materially less damaging injury.

The Trust defends the claim on both negligence and causation. It denies that its midwives or doctor acted inbreach of their duties or that they delayed any appropriate and reasonable step in FS's care. Also medical causation cannot be established because on the balance of probabilities even an interval of ischaemic hypoxia shorter by 6-9 minutes that than which DS sustained would have caused essentially the same injury and the only way to avoid it would have been for DS to have been delivered within 10 minutes of the hypoxia starting.

The sources of evidence available on the question of negligence are primary witness evidence: contemporaneousand retrospective medical records; some electronic monitoring records and expert testimony. Expert evidence was also led on causation.

There is no dispute about the applicable law. In order to establish liability and negligence DS must prove that theTrust's staff did an act, or failed to do an act, in a way in which no reasonably competent obstetrician or midwife would have acted or failed to act. The test is prospective not to be corrupted by the benefit of hindsight. DS must then show that any negligence he has proved caused, or made a material contribution to, his injury and damage; in the context of this case what has to be proved is that but for the negligence DS would have been born unharmed or if harmed the level of damage likely to have been sustained would have been materially less.

The individual midwife or doctor is to be judged by the standard of a reasonably competent doctor or midwifecarrying out the functions expected of her in the delivery suite of a hospital providing maternity services. In Bolam v Friern Hospital Management Committee (1997) 1 WLR 583 what has become known as "the Bolam test" was described by McNair J as follows (page 587):

In Bolitho v City and Hackney Health Authority (1998) AC 232 it was emphasised that the practise in question in the quotation above had to be accepted as proper by a responsible body of medical professionals. In the leading speech Lord Brown-Wilkinson said (page 241):

The Claimant's injuries are summarised in the re-amended Particulars of Claim. DS has a severe spastic cerebralpalsy which is bilateral though asymmetric in distribution. He is profoundly disabled, his principal problems are that he has significant dystonia, he is unable to sit unsupported and can only occasionally take three or four steps independently. He can crawl upstairs on his knees and come downstairs on his bottom under supervision. DS has learning difficulties of moderate severity. His speech is difficult to understand. He is doubly incontinent and at increased risk of developing epilepsy. He will require care on a round-the-clock basis for the rest of his life and suitable accommodation and assistive aids and technology. He will always require a range of therapies. His life expectancy is to about 74 years but he will be unable to work or drive a car. The Issues

The Claimant's case was first prepared in 2012 for a letter before action. A degree of adjustment to his case hastaken place during the progress of litigation. The Claimant's re-amended Particulars of Claim allege that the Defendant was negligent in that it:

Following joint expert discussions the experts agree that the Claimant suffered a prolonged acute total hypoxicepisode of 42 – 47 minutes duration. All breaches of duty are denied and in terms of causation the Defendant asserts that irrespective of any breach of duty found the Claimant's condition would have been unchanged. Relevant Material from Labour Notes

FS's Labour notes are in a conventional format and consist of a table with four columns. The first is headedMDT (Multi-Disciplinary Team) and enables the person entering a note to describe their role, so that MW = Midwife and STMW = Student Midwife. The next column is headed Date and Time. The third column is the largest space for the recording of events and the final column is headed Print and Sign.

A print out from the CTG (Cardiotograph) trace obtained from the foetal scalp electrode applied to DS's scalp atabout 1506 bore apparent artefacts. The trace of the FHR between 1506 and approximately 1508 appears to be between 60 and 80 beats per minute thereafter in hand writing appears VE and the words "by D Deshmukh". A CTG trace appears interrupted from 1508 and although there are some signs of a trace between 1511 and 1513 these are much higher than the FHR is likely to have been and appear to be irrelevant. Partogram

A partogram chart had been maintained. The FHR was marked on it by hand up until 1400. The FHR of 60 beatsper minute is marked at 1500 and counter signed by Midwife Voulgaris. There is a further entry that clear liquor is seen at 1500 hours. On the partogram the degree of intensity of contractions was marked during the period of care by Student Midwife and Midwife Voulgaris. The other entry of note is that at 1000 hours the results of the vaginal examination are marked as fully effaced at spines and the position of the foetus is marked as cephalic on a diagram

FS and ES, (DS's grandmother) gave evidence, much of which was contradicted by the Trust's staff. As ever,careful scrutiny must be applied to the evidence where allegations of negligence are made and an objective appraisal has to be achieved. This is not to detract from the understanding and sympathy which any such witness will naturally be entitled to expect from the court. The burden was on the Claimant to persuade me that where contradictions occur, especially important ones, the evidence of FS and her mother was more likely to be correct. Generally, I was not so persuaded. This is predominantly because the evidence of the Trust's witnesses was substantially supported by the records which I am sure were written at the times shown on their face (rather than made up afterwards) and because where the evidence of the Trust's witnesses conflicted with the Claimant's mother and grandmother, their evidence was sometimes inherently improbable. The best aid to resolving

FS made a statement in this claim on 12 February 2015 giving her age of birth of 16 April 1986. DS was her firstchild. He now has a brother who was born on 12 November 2008 by elective caesarean section and is developing normally. Upon admission FS was having contractions and a vaginal examination showed that her cervix was dilated to 5 cms. A controversial aspect of her evidence was her recollection that although two midwives took over her care at 0818 hours only one of those was with FS and her mother ES most of the time. This was the Student Midwife Herron (nee Lusby-Spedding) (SMW). According to FS the Supervising Midwife Voulgaris

Both midwives rejected this account and the medical notes demonstrate that where observations are recordedthey are signed by SMW and, on almost every occasion, countersigned by MWV. Although in her initial statement MWV said she had been in the labour room throughout except for short breaks, she corrected this in her second statement having seen the Claimant's evidence. On balance I am satisfied MVW's final account is correct. In her evidence MWV said she wasn't present in the room the entire time and may have been absent for as long as half an hour at a time but that she was present most of the time between 0818 and 1500 hours caring for FS and supervising the student midwife. She accepted that she was not necessarily present when each observation was recorded in the medical notes by SMW and that she may have countersigned some entries "in blocks".

FS gave evidence confirming that when a vaginal examination was carried out at 1010 hours with her consentthe labour notes properly record the findings: her cervix was dilated to 8 cms, the vertex was at the level of the ischial spines and the membranes were bulging through the cervix. MWV gave evidence that she was present during the vaginal examination and that this would be normal procedure because she was supervising SMW.

FS stated that she had never become aware during labour that her waters had broken while the notes record thatat 1150 hours rupture of the membranes with clear liquor draining had taken place. The midwives' evidence was that they had seen this occur spontaneously and had assumed that it was rupture of the main amniotic sac. That turned out to be incorrect but I have no doubt that what is recorded at 1150 in the notes was a contemporaneous recording and reflected the midwives' understanding at that time.

A significant and controversial recollection in FS's statement was,

FS is correct in that there is no record of her being in excruciating pain and her abdomen being "rock hard". Theevidence of the midwives was that there were times when FS was unable to cope with the pain that she was

Inevitably the most important evidence from FS concerned events at 1500 hours. In her statement she had saidthe following,

The contemporaneous medical notes do not bear out this account in that at 1406 hours it is recorded that FS wasbearing down with her contractions and giving small pushes although nothing was visible at the entrance to the cervix at this time. Contractions are noted on several occasions between 1330 and 1500. The FHR which had been measured at frequent although not entirely regular intervals, to which topic I will have to return, was measured and noted at 15.00 hours as 60 beats per minute. In a same entry the spontaneous rupture of the membranes is recorded. At 15.04 the FHR which had been measured with a Pinnard was recorded as still 60 beats per minute and two minutes later at 15.06 a foetal scalp electrode having been attached to DS's head, the FHR was being measured at 70 beats per minute. This appears to be the last contemporaneous record prior to the unfolding emergency situation recorded retrospectively at 16.30 hours.

Returning to FS's statement she describes screaming in pain when she arrived in theatre for the emergencycaesarean section. She was then given a general anaesthetic. She describes seeing an obstetrician, Mr Roberts, on Monday 6 June and being told that she had suffered a placental abruption and that DS may not survive and if he did he would have lifelong medical problems. Six weeks after DS was born she saw Mr Daniels, another

At the start of her evidence in Court she stated that her memory was not affected by the passage of time. Shemaintained that MWV did not enter the labour room over the 6 ½ hours FS spent there except to bring refreshments and to say that FS was doing really well. She denied that she had ever seen MWV enter her signature on the medical notes. In cross-examination she was taken to a letter dictated on 1 August 2005 by Dr M Mohammed, Specialist Registrar in Obstetrics and Gynaecology. This letter was written to FS's GP following the appointment FS had been given and during which she and her mother had the opportunity to ask questions about her labour and the delivery of DS, the Registrar having in front of her all the medical notes concerned. The letter is 2 ½ pages long and appears to be a detailed description of a post-natal appointment. Dr Mohammed records a number of questions she was asked by FS and her mother:

Dr Mohammed records that she went through the notes page by page and reviewed them line by line. FS deniedthat anything like this happened. The witness said the doctor did not answer the questions she and her mother had although this had been the whole point of the appointment. She said that Dr Mohammed had just "flicked through the notes". The letter Dr Mohammed had written made no sense to FS. It was not a correct account of the meeting. It was put to her that the letter was detailed and clear, but she denied that it was a true reflection of the appointment. Her attention was taken to a particular passage.

Although there is no particular time noted for this in that paragraph, the next time that Dr Mohammed includedwas 10.10 hours and working back in the notes a FHR of 188 beats per minute was last recorded at 09.44 hours. There is no indication of a rigid abdomen at that stage. The witness said that this part of the letter must be an error by Dr Mohammed because she did not say that to her.

Similarly, FS was asked about another passage in the letter

FS agreed that she had said that she'd experienced increasing pain at around 15.00 hours but she denied that sheand her mother had any explanations from Dr Mohammed or that they had indicated to Dr Mohammed that they were satisfied with all the explanations and answers they had been given. FS also denied that towards the end of this meeting Mr Daniels had entered the room and apologised for not being able to facilitate the meeting personally. FS maintained that they didn't see Mr Daniels at all that day and they were not happy with the meeting they had had.

Although the meeting itself is not of primary relevance to the issues in this case I found FS's evidence about themeeting with Dr Mohammed unsatisfactory. The letter was dictated on the same day as the meeting. It was typed a couple of days later and it is detailed enough for me to be satisfied that it represents a full record of detailed discussions that FS and her mother had with a knowledgeable, experienced doctor intent on assisting them to understand the crisis that had occurred towards the end of FS's labour. FS agreed that she had not mentioned to Dr Mohammed that the supervising midwife was not in the room for substantial periods or at all during the period of labour between 0818 and 1500 hours. She denied that she and her mother had asked specific questions of Dr Mohammed which Dr Mohammed had recorded, for example, ES had asked why FS was not given any Venflon. FS denied Dr Mohammed had explained that the placenta had partially separated by the time of the caesarean. FS and her mother had not given Dr Mohammed the impression that they understood the baby's heart beat had been lost pre-operatively and Dr Mohammed did not explain that the foetal heart was running at a low rate until auscultation was stopped just before the caesarean section.

Finally it was put to FS that if her evidence was correct then the midwives failed to note any of the things whichwould have indicated very strongly that she had suffered a placental abruption well before 1500 such as her "rock hard" abdomen, her complete failure to push etc. In particular it was put to her that the Claimant's case had changed from the way it was originally formulated because the medical evidence did not support a placental abruption much before 1500 but that she nonetheless maintained an inherently improbable account that the midwives caring for her had been ignoring signs of potential danger to her baby. She denied that she had made up this evidence to suit her case that the midwifery staff were incompetent and heedless.

ES, DS's grandmother also gave evidence. She has had three children all of whom were born without surgicalintervention, healthy and well. She confirmed that when FS saw a midwife at home in the early hours of 4 June 2005, FS and she were told that the birth was classed as low risk and FS could stay at home or go to hospital if she wished to. FS went to hospital and arrived early in the morning. ES confirmed her daughter's evidence that SMW cared for FS and MWV merely stood at the door occasionally to ask if FS was alright and only entered the room to deliver refreshments. In her statement dated 12 February 2015 she stated that the supervising midwife's conduct was a matter of concern to her and observed that FS had indicated that she did not want to be cared for by a student midwife in advance of going into labour but had been reassured by the midwives caring for her before 0818 hours that SMW was close to the end of her training and relatively experienced.

ES stated that she began to get concerned about her daughter at about 1330 because her contractions seemed tobe fading and she was becoming agitated. She was also in great pain and sought a caesarean section, because of the pain. ES confirmed FS's evidence that SMW felt FS's stomach and said "That's strange, your belly is rock hard". SMW seemed to be puzzled by this. ES denied that she had subsequently become aware that such a sign may indicate placental abruption.

ES also confirmed that FS was asked to push by SMW (at about 1500) and when she did, after much persuasion,she delivered "a balloon". At that point SMW looked anxious and asked DS's father to press the buzzer. ES stated that it was the midwives who mechanically ruptured FS's membranes using an instrument "that looked like a crochet hook". When the membranes were ruptured there was a substantial quantity of blood and the buzzer was pressed again and another midwife appeared. She tried to measure the baby's heart rate, it not having been measured before or since rupture of the membranes. She had difficulty measuring the heart beat and the buzzer was then pressed again at which the doctor appeared, thereafter the crash team was called.

In evidence ES adopted her statement. She had heard her daughter's evidence and agreed with FS that themidwives had "made up their notes". ES said that she had expected the baby to have arrived by two o'clock although she didn't mention her concerns to anyone else. She denied that MWV was in the room supervising the student for most of the time and denied that SMW's notes were counter-signed by MWV, who must have added her counter signature to the notes later.

She also agreed with her daughter about the content and nature of the meeting they had had with DoctorMohammed. They were disappointed that the doctor had not answered the questions they had wanted to be answered. She said

In cross examination she maintained that FS was in "excruciating pain" from before 1330 and that SMW had been panicked at 1500 hours when a bag of waters was delivered. Neither of the midwives seemed to know what the "balloon" was. This reaction was not accepted by the midwives and the account is unlikely to be accurate: MWV was very experienced and, in my judgment, could not have failed to appreciate what the bag of membranes was. ES maintained that the membranes did not rupture spontaneously but were deliberately and mechanically broken. She said that the note made ostensibly at 1500 hours was wrong. She denied that she was making this evidence up and also denied that she was mistaken about it. It was put to her that it was possible she could have mistaken the foetal scalp electrode that was inserted after the rupture of the membranes for the crochet hook that she had described and the witness was shown a photograph of a foetal scalp electrode. The witness admitted that she did not mention the fixing of a foetal scalp electrode at all in her statement but was adamant she had not made a mistake.

She also maintained that a quantity of blood soaked the bed when the membranes were ruptured. She describedit as "a guest-towel full" of blood approximately 18 inches by 12 inches. She said seeing all the blood was frightening for her and she certainly had not confused what is later recorded in the notes, retrospectively, as "a small show". She too denied that she was making up her evidence to demonstrate that the placental abruption happened well before 1500 and was obvious but not recognised by the midwives. The Midwifery Evidence

Midwife Andrea Louise Herron (SMW) started her midwifery training at Hull University in 2002; she qualifiedas a Registered Midwife in August 2005, two months after the birth of DS. During the last 18 months of her training she worked on a placement at Scunthorpe General Hospital obtaining practical experience including performing vaginal examinations, providing perinatal care and assisting with normal deliveries. She has remained employed there as midwife aside from two periods of maternity leave.

In her statement dated 8^th February 2015 (she made a supplementary statement on 8^th May 2015) SMW records that although she has a reasonable recollection of the relevant events this is supplemented by a review of the contemporaneous medical notes and consideration of her usual clinical practice. In her statement she described taking over the care of FS at 0818 on 4^th June 2005. MWV was present supervising while SMW managed FS's delivery and monitored and recorded her labour. FS was SMW's only patient that day. FS was accompanied by her mother and boyfriend. FS was primgravida and was categorised as low risk. As a result she was not on a regime of continuous CTG monitoring.

At 0818 hours FS was in the first stage of labour. The Trust's policy was for auscultation of the foetal heart every15 minutes during the first stage. SMW stated that she would have initially used a Pinnard and then a Toco from the CTG machine to auscultate the foetal heart. She recorded her findings in the clinical notes and also on the partogram that was being maintained.

In respect of the vaginal examination at 1010 hours SMW stated that she would have performed an abdominalpalpation before the examination to enable her to check that the vaginal examination corresponded with what she could feel on the abdominal examination. The cervix was fully effaced and 8cms dilated. The presenting part of the foetus was cephalic and she could feel the fontanelle. She recorded the position as undefined due to bulging membranes. The foetal head was at the spines she did not feel the cord or placenta. The FHR at the end of the vaginal examination was 128-138 beats per minute, within the normal range.

Whilst continuing to monitor FS's labour which remained normal, at 1145 hours she recorded that FS wasbearing down with her contractions. She explained this in her statement as meaning that FS was starting to feel the urge to bear down. With hindsight it is accepted by both sides that it is likely that the OP position of her baby will have been the cause of FS feeling the urge to bear down despite not being fully dilated. At 1150 the rupture

FS's contractions then reduced in frequency but were still strong on palpation and the witness considered this tobe normal; a further sign that FS was entering a latent or transitional stage of labour otherwise known as the "rest and be thankful stage". She was palpating the contractions by hand and also holding the Toco in place on FS's abdomen to listen to the foetal heart. She was listening before, during and after contractions. At this time each contractions was lasting approximately 50-60 seconds and the uterus was relaxing in between contractions.

FS had been due to have a routine vaginal examination at 1415, this being about 4 hours since the previousvaginal examination, but the examination was delayed because FS appeared to be approaching the second stage of labour. SMW increased the frequency of the foetal heart monitoring to every five minutes or so in accordance with the Trust's policy for the second stage which they were anticipating. At this point FS was in discomfort and quite distressed however SMW was clear that FS's abdomen was never "rock hard". If she had noticed such a sign she would have noted it in the record and acted upon it.

At 1500 hours she saw the bag of waters but initially thought it was the baby's head. The bag came out at theheight of a contraction and the pressure of the contraction caused the bag to rupture and the waters flooded. At that point MWV was not in the room but she was called back in as SMW thought that the baby was about to be delivered. She records in her statement that she had gone to the door to call the supervising midwife back into the room and she arrived immediately. There was a minimal show present at the time of the rupture of the membranes but there was no thick red blood.

Once MWV returned to the room she took over management of FS and thereafter SMW assisted by writingdown what was happening on a piece of paper with a view to the notes being written up later.

The foetal heart was recorded as the records show. At 1500 hours and 1504 the listening was done by MWVinitially with a Toco and then with a Pinnard. Her initial view was that the deceleration in the FHR was due to a cord prolapse. The labour ward co-ordinator Midwife Lilley responded to the buzzer. SMW explained that although it would have been possible to call a doctor into the room rather than the Labour Ward co-ordinator the clinical situation was that the FHR had only just dropped and that was why the co-ordinating midwife's presence was initially sought.

The midwives attempted to get FS into a better position in order to conduct a vaginal examination to assess thesituation. This was at 1505 hours. It was necessary to check that there was no cord prolapse, what the position of the baby was and whether FS was fully dilated. It was during this examination that the foetal scalp electrode was attached in order to obtain a continuous reading of the FHR and to check that the maternal heart rate was not being picked up instead. The doctor was then called by a midwife leaving the room to a central bank of phones. The call was made at 1507 hours and the Registrar Doctor Deshmukh attended at 1508 hours. She performed her own vaginal examination. Between 1508 and 1509 sudden blood loss was noted vaginally. SMW said this was the first time there had been any blood loss during the labour and at 1513 hours the Registrar called for an emergency caesarean section.

By the time of her second statement in May 2015 SMW had read the evidence of the statements of FS and ES,and she responded to some of the content.

In evidence she said that when she wrote in a time onto the medical records the time she recorded was that of theevent concerned not the time she was making the note. In cross examination she explained that she had been present at very many but less than 40 deliveries during the final 18 months of her training by the time of the DS's birth. She had seen bulging bags of fluid before but could not say how many times. She said it was standard practice to carry out abdominal palpations to feel and measure contractions and where possible to determine the position of the baby and she agreed that she should have (always) noted if she had done then. She did not remember if MWV pointed out that she had failed to make such a note. She agreed that if there is fault in her not recording the abdominal palpations that she had done then that would be a fault shared by her supervisor.

Plainly each palpation should have been recorded although it is right to note that the records of the midwiveswho were responsible for FS care prior to 0818 hours had not recorded any such information in the records and SMW has recorded some palpations although her attention was not drawn to these in evidence: at 0900, 0930, 1005, 1040, 1100, 1130 and 1154.

MWV came in frequently, she was not there all the time, although SMW could not recall what proportion oftime MWV was in the room or what the gaps in her attendance were. Half an hour could have passed without her coming in but not three quarters of an hour. MWV's supervision consisted of discussing care, discussing what was normal, looking at documentation. The details of the supervision were not documented on the medical notes but SMW denied that she had been left effectively unsupervised.

SMW agreed that some of the counter signatures on the notes may have been made after the relevant entry hadbeen made. In a normal low risk pregnancy, as this was considered to be, the FHR was monitored at least every 15 minutes. In some of the notes where a range for FHR is entered that's because a FHR is variable when measured with a sonic instrument. When a Pinnard was used to listen a range would not be recorded. The vaginal examination at 1010 was carried out with the consent of the supervising midwife and she would have been present. The witness would have expected the FHR to rise a little after a vaginal examination and she had noted it at 128 – 136.

She agreed that she had increased monitoring of the FHR from every 15 minutes but significantly she denied thatshe had at any stage believed FS to be in the second stage of labour at which time the Trust's guidelines would require FHR monitoring at least every five minutes. She had in fact increased the rate of foetal heart monitoring of her own volition and she said that this was because she was a student and eager. She was listening before, during and after contractions not just afterwards as the Trust's guideline requires.

Of her notes at 1406 hours she said that reassuring features were recorded at that time. A wish to bear downmeant that FS was coming into the second stage. Other signs were anal dilatation, pouting of the labia but these were external signs. Vaginal examination would be required to be certain of full dilatation or viewing the baby's head.

FS's labour was going well and progressing so it was decided by MWV that there was no need to do a vaginalexamination. Both midwives believed that FS was showing signs of coming into the second signs of labour. SMW agreed that she stopped making notes on the partogram at about 1400 hours. She could not explain why she stopped then but MWV carried it on after 1500 hours.

It was put to her that women with babies in an OP position would often be in pain from pressure on their backsand she agreed with this but she denied that FS was in continued pain between contractions.

It is plain from the contemporaneous records that SMW increased the frequency of FHR monitoring from around1400 hours and that this increase was not consistently maintained. It is important to note that the Trust guidelines are clear that FHR monitoring in a normal low risk labour need not be more frequent than every five minutes when the mother is in the second stage of labour. Prior to this there is no requirement for foetal monitoring at five minute intervals. The firm evidence of both midwives was that until 1500 hours they did not consider FS to be firmly in the second stage of labour. It could be argued sensibly that when a vaginal examination is being delayed because the woman is believed to be close to the 2^nd stage of labour a reasonable supplementary step would be to increase the frequency of foetal heart monitoring to every 5 minutes at least. This would be at worst an unnecessary caution but at best it could provide an alert to potential hazards such as deceleration in the foetal heartbeat. However, it is plain that the Trust's Guidelines do not require such increased monitoring until the 2^nd stage was reached.

Dealing with events at 1500 hours she said that she saw the bag of bulging waters although she didn't remembernow whether that was during a contraction or not. The father was asked to press the buzzer. There are two

Asked about her note she said that at 1500 hours the bag of waters had already ruptured and she had taken aToco reading of the heart for a minute. She denied that she had intended to do a FHR monitoring at 2:57 hours but didn't do so because of seeing the bag of waters which MWV then ruptured. She agreed that nobody could have known if the FHR had been at 60 beats per minute for 8 minutes or so or less at 1500. She did have sufficient experience to know how dangerous such a low heart beat was but she did not agree that it was necessarily an abnormality because a FHR can drop after the breaking of waters and there was a need to rule out the various potential causes. She agreed that after 3 consistent minutes of such a low heart rate where it was not recovering a decision would be taken to get medical assistance.

Caroline Voulgaris (MWV) made a statement dated 12 February 2015 in which MWV described her occupationas Registered Health Visitor, she had qualified as a General Nurse in 1986 and as a Registered Midwife in 1989 working at Scunthorpe General Hospital. At the time of DS's birth, she had about 16 years' experience as a

In her February 2015 statement she described herself as supervising the student midwife and present in the roomthroughout (save for short breaks). She countersigned all the entries within the medical records to confirm that they were accurate. At the time that FS was in labour she and the student midwife were providing 1 to 1 care on the labour ward which means that FS was the only labouring mother for whom the witness was responsible. FS was considered to be low risk and so she was not placed on continuous CPG monitoring. No problems were identified when the foetal heart beat was listened to; the heartbeat was within normal limits. Throughout the labour the witness encouraged the student midwife SMW to place her hands on FS's uterus to feel the length of contractions at no time did she notice that FS's abdomen was "rock hard". At 1150 she noticed some water and presumed that the membranes in the amniotic sac had ruptured but with hindsight she stated that this was likely to be a rupture of the hind waters with the fore waters remaining intact. By around 1230 FS's contractions changed in character, they became a little less frequent however they were still "expulsive contractions" lasting 50-60 seconds. FS was struggling to cope with the pain and was being supported but she was not in constant pain. At 1406 FS was starting to bear down with her contractions and give small involuntary pushes. This suggested that she was making good progress and getting close to full dilatation.

At this time a routine vaginal examination was due as it had been 4 hours since the previous one. As FS wasdemonstrating some external signs of full dilatation: vulval pouting and anal dilatation and she was starting to bear down with her contractions, MWV anticipated that she would progress to a normal vaginal delivery. She discussed the situation with the Labour Ward co-ordinator, Sister Lilley and decided not to perform a vaginal examination at that time. The plan was to wait an hour and then assess the situation if delivery had not occurred by then. Of course it was at almost an hour after this time that the crisis occurred. At 1429 FS was still in "the latent stage of labour; she was not in the second stage and was not actively pushing". The FHR was within the normal range at 1434, 1445 and 1452.

When the emergency occurred at 1500 MWV actively took over the management of FS. She wrote her notesretrospectively but stated she was certain the times recorded in those notes are accurate because she would have called out the times and events as they occurred using the digital clock on the labour ward. These details would have been written down in the delivery room and she would have had access to those records when she came to write her notes. She described the emergency at 1500 in the following way:

In her second statement dated 19 May 2015 prepared after she had seen the Claimant's factual evidence she setout matters with which she took dispute. Firstly she disputed FS and ES's account of her limited involvement in caring for FS.

Secondly she disagreed with FS's account that she was in excruciating pain and her stomach was "rock hard". MWV said that if this had been reported to her or she had seen it she would have acted.

Thirdly, she disagrees with FS's recollection of no contractions after 1330 and relies on the medical notes.Similarly FS's assertion that she felt "hot and sick" MWV points out that this would have been recorded if true and on the partogram FS's temperature was recorded as 36.6 degrees centigrade at 1335 which is a normal reading. Fourthly, MWV disagrees that FS did not ever have the urge to push during her labour and relies on the record at 1406. Fifthly, she again disputes the allegation that she broke the sac of membranes mechanically and suggests that the Claimant's witnesses may have confused the foetal scalp electrode with an instrument and become disordered about the sequence of events.

In her evidence she again dealt with her degree of involvement with FS's labour "my recollection was that I waspresent, I did go out of the room but I cannot confirm exact times that I was in and out of the room". She agreed that half an hour's absence at a time was possible, she couldn't remember what she was doing when she wasn't in the room with FS and from time to time when she returned to the room there would be a block of entries for her to consider and countersign but she denied that she countersigned the whole document in retrospect. She was asked about the vaginal examination at 1010, she answered that she didn't do the examination herself but she would not have expected SMW to have done that on her own. She looked at SMW's notes sometime after the vaginal examination ended and was there when SMW's findings were explained to FS. She agreed on reflection

She agreed that DS was in fact in the ROP position and that this particular position may give rise to pain for thelabouring mother but MWV was adamant that FS did not describe serious pain as there is no serious pain noted in the medical notes. She was asked about the assertion in her 2015 statement that the foetal heart was checked before, during and after each contraction. It was put that contrary to her statement the foetal heart was not checked at those three stages in respect of each contraction. The witness agreed, she said she wished to change the sentence in her statement to say that it was not on every single contraction that these three checks were made and she agreed that there was no way of knowing from the medical notes whether the foetal heartbeat was checked before, during or after a particular contraction where it is noted.

The witness disagreed that FS was in the second stage of labour at around 1400 and thereafter. She said that ifshe had believed FS to be in the second stage of labour she would have documented it as such. The 1410 FHR was taken soon after the previous one and MWV explained the frequency with which FHR was measured by the student being very keen "and this additional practise gained for her in confidence". She was asked if there were any signs consistent with the second stage of labour and the witness agreed that there may have been some vaginal pouting and anal dilatation but they had decided to give FS time to progress rather than do a vaginal examination at 1415 when it was next due. It was put to her that the real reason the vaginal examination did not take place was because the midwives assumed FS was in the second stage of labour. The witness said she did not assume FS was in the second stage.

There was no point at which a decision was made by the midwives to increase the foetal heart monitoring toevery 5 minutes. It was put to her that she should either have confirmed that FS was in the second stage by vaginal examination or used the 5 minute FHR measure as a safe way of proceeding in the absence of vaginal examination. She replied that it was not in breach of the Trust guidelines for her to have neither done a vaginal examination nor asked for FHR monitoring to be more frequently undertaken. She said she had to consider all the features when she was making a decision, the state that FS was in at that time was classed by her as 'prior to the second stage'. When pressed about the decision not to have a vaginal examination at 1415 MWV said

She was asked what she meant in her statement when she referred to "expulsive contractions" and she agreedthat the word expulsive was not in the notes. She said what she meant by 'expulsive' was an urge to push, bearing down and this was not evidence of her assessment that FS was in the 2^nd stage of labour. This part of the evidence from the supervising midwife was not clear but I am not persuaded that the lack of clarity arose from an intention to hide her actual assessment of the stage FS had reached in her labour.

She could not remember where she was when she was summoned at 1500. It was put to her that there was acontradiction between SMW's statement that the bag had ruptured before MWV was called and MWV's evidence that she responded to a buzzer at 1500 hours and saw the bag of membranes. There was also a contradiction within SMW's evidence as to whether she had called MWV from the door of the labour room or pressed a

MWV denied that she and SMW hadn't known what the bulging bag of membranes seen at 1500 hours was. "Weboth knew what it was although we had thought membranes had already broken. We made FS comfortable, SMW listened to foetal heart beat with a sonic aid". She agreed that that part of her statement in which she refers to doing this FHR check was wrong. She said that she had re-checked foetal heart by listening to it using a Pinnard.

There are further contradictions in the midwives' evidence as to which of them did which monitoring at 1500 and 1504. However I am satisfied that the FHR was monitored at those times, or thereabouts. She agreed that she had no way of knowing how long the FHR had been at 60 and she knew that 60 was half of normal and it was very low indeed. It was put to her once a heart rate that low had been recorded for a minute it was necessary to keep recording constantly to see how it progressed and she agreed. She was asked why it was not continuously monitored thereafter. Her answer was unsatisfactory,

This was taking place between 1500 and 1504. It was put to her that three minutes of a pathologically low heartrate was the signal to call a doctor. She agreed that that was the Trust's guidance but they were dealing with a dropped heart rate and she had called for Sister Lilley within a minute of re-checking the rate and when she was sure it was not the maternal pulse being heard. She didn't think any longer that this was a low risk labour but it was normal procedure to inform the Labour Ward Co-ordinator and have an extra pair of hands to escalate matters. The question arising is whether these circumstances called for obstetric input alongside any other midwifery steps.

At 1505 they started doing a vaginal examination having obtained verbal consent from FS. She agreed that themidwives could have started it as soon as the FHR was a steady 60 beats per minute but they had a distressed lady and they would have been preparing to do the vaginal examination as Sister Lilley arrived. She insisted that they did not delay and they did appreciate how serious the situation was. The normal practice would have been to try and turn FS into an alternative position. "From memory we did try to change her to a left lateral position, she may already have been in it". She agreed that in her retrospectively written note the vaginal examination it timed at 1505. She said that that was the time she completed the examination. When asked why in those circumstances Doctor Deshmukh had not been bleeped until 1507 MWV said they had to establish what had occurred but when pressed she changed her mind and said that the time recording at 1505 was when they were performing the vaginal examination not when it was completed and that the vaginal examination took 1-2 minutes.

When Doctor Deshmukh arrived they had told her the situation. FS would have been unknown to doctorDeshmukh because she was expected to have a low risk labour. Giving her a history would have taken 30 seconds or so. Doctor Deshmukh would have been told that a vaginal examination had taken place in the last couple of minutes that they believed there was no cord compression and that FS was fully dilated. The doctor examined FS, palpated her uterus, observed the CTG from the scalp electrode, decided on the mode of delivery and advised the next steps. This process would have been interrupted if a contraction occurred during it. To MWV Doctor Deshmukh's vaginal examination did not appear to be taking a long time, it was about the same time as the midwives had taken.

In general, deceleration to 60 beats per minute when the mother is entering the second stage of labour is quitecommon. She said she had encountered it 2 or 3 times a week when working full time as a midwife. It would be followed by spontaneous recovery of the foetal heartbeat. DS's case was the only time she had experienced an adverse outcome following a FHR deceleration in her practice of 16 years. She was asked to explain again what she had done before calling for Doctor Deshmukh

Before the vaginal examination the midwives would need FS's verbal consent, they would prepare the pack washtheir hands, glove up, explain to the mother what they were doing and help her to cope with contractions (the tightening of the vagina) by waiting until the contraction had passed. She maintained that 1505 was the time when they started the vaginal examination and this was her final answer. She couldn't remember how long each part of what they were doing from 1500 – 1507 took but the vaginal examination would have taken two minutes to actually do. This was her normal practice. The concern arising out of MWV's evidence was whether she delayed seeking obstetric help because she hoped and expected that the FHR deceleration could be managed within the midwifery team at a time when all signs were that it needed to be escalated. I did not find her evidence on this topic persuasive. It was suggested to her that what she had done before calling the doctor, even it if could not be objected to as unnecessary, had all simply taken too long during the course of an emergency situation. She replied

The labour ward co-ordinator Midwife Carol Lilley became a Registered Midwife in 1988 and the labour wardco-ordinator at Scunthorpe General Hospital in 1998. She retired in August 2013. She had no recollection of events surrounding DS's birth and the contents of her statement dated 12^th February 2015 were based upon a review of the contemporaneous medical records and her usual clinical practice. She confirmed that MWV discussed FS's progress with her at 1415 and she had agreed with MWV proposal to defer a vaginal examination because MWV, a very experienced midwife expected FS to start entering the second stage of labour. The deferral was for an hour and it was anticipated that FS would be reassessed for a vaginal examination after about 1515.

She was unable to say at what time the buzzer was pulled causing her to go to the labour room. Once there, asstandard practice she would have introduced herself to FS and the other midwives would have provided her with a history and information about the current situation. It follows that they would have told her that there had been a spontaneous rupture of the membranes, the waters were clear and the FHR deceleration. As there had only just been a spontaneous rupture of the membranes and it had been five hours since the previous vaginal examination when FS had been 8cms dilated it was necessary to check there was no cord prolapse and that full dilatation had taken place as well as the position of the baby and to ensure that the FHR was being picked up rather than the maternal heart rate. She confirmed that the vaginal examination that the midwives carried out was for all of these reasons and a foetal scalp electrode was also applied to DS's scalp to ensure direct contact and enable continuous recording of the FHR.

As soon as she had established the constant FHR she contacted the Obstetric Registrar. In order to call DoctorDeshmukh she had to go out of the room to the desk. She would use a phone which had a direct dial to bleep the doctors who usually respond very quickly and Doctor Deshmukh was in the room within a minute. Once the doctor arrived Midwife Lilley would not have stayed in the room. There was a strong likelihood that Doctor Deshmukh would decide to perform a caesarean or instrumental delivery so she would have gone out to start making preparations and she may have called the theatre staff to give them some pre warning that the theatre may be required. When Doctor Deshmukh called the crash section she would have come out of the labour room and told Midwife Lilley this was required. Midwife Lilley would then have called a number that is specific for crash caesarean sections. This alerts theatre staff anaesthetists and the paediatricians. It is a voice over bleep. Once the doctor had called the crash sections FS would have been told what was happening and the midwives would have started to move her to theatre immediately. The theatre room was always set up for the labour ward so all that was required was to move the mother and resuscitaire.

In evidence she stated that she had not been asked for a statement immediately after the emergency and firstaddressed her mind to the events in 2015. She agreed that deferring the vaginal examination that was due at 1415 was decision that the midwives could have made without discussing it with her but she would expect them to

She agreed that if the FHR were 60 beats per minute and had not recovered within three minutes it was classifiedas pathological according to Trust policy. She said that they didn't have a CTG to confirm that the FHR had not recovered. She agreed that the expert midwives who had provided reports for this case said that there should have been continuous monitoring once FHR was at 60 but she said that what was necessary was for the scalp electrode to be attached and this needed a vaginal examination which would also be used to ensure that there was no cord in the vagina and FS was fully dilated. It was put to her that once she knew that the FHR had been at 60 for potentially three minutes already she should have called for emergency medical attention irrespective of the CTG but she disagreed because if it had been caused by a cord prolapse she could have cleared the cord out of the way.

She agreed that a doctor could have been called at the same time as the midwives carried out a vaginalexamination but maintained that they had done everything as quickly as possible. She needed to find out what was happening. This was not really an answer to the point. She maintained that it would have been a very different call if she had found a cord prolapse. It was put to her that the problem she was faced with was that there was a deceleration in the heart rate, no constant record was kept following that drop to check how long it persisted for and so the only safe course would have been to ensure that the doctor was called within three minutes. She disagreed, but failed to explain why.

Once the scalp electrode was attached she would have suggested that they changed FS's position to see if itthereafter recovered. She said that many babies do experience deceleration at full dilatation when the membranes rupture. It was put to her that in the circumstances the midwives should have put FS into a left lateral position immediately. The witness replied that FS may have been in that position already at the time she entered the room. She was pressed with the assertion that in retrospect the only safe thing to do when there was no way of knowing how long or short a period the FHR had been at 60 for, was to call the doctor. She replied that once they had identified there was a drop in the FHR for three minutes they called the doctor. Of course this is to ignore the period from 1500 to 1504. She was asked what stopped her making a crash call herself without involving a doctor. She said that it would divert a lot of doctors and nurses. She could have made one but at that time in her judgement there was no indication requiring a crash call. If there had been blood issuing from the vagina she would have made the crash call herself but there was no blood until Doctor Deshmukh did her vaginal examination.

In her experience the FHR will drop after the breaking of the membranes in every shift, possibly 5 or 6 times pershift. Most will recover; a change of position will often lead to a recovery, but if the heartbeat does not spontaneously recover the midwives involve the medical staff. In her experience decelerations of more than three minutes do spontaneously recover. This witness had also never had an adverse outcome like DS's. She had delivered 900 babies herself and been present at more than double this number and it was her only such case. The Trust's guidance of course is clear. A persistent deceleration of 3 minutes must be treated as a pathological one and delivery expedited.

She confirmed again at the end of her evidence that if the midwives had found blood she would have made animmediate crash call without a vaginal examination being carried out. She said she would not have tolerated any delay. The clear impression left at the end of her cross examination was that she understood her job well and would have been a calming influence in a time of serious emergency as occurred from 1500 hours in FS's labour. However, her response to the repeated question as to why the priority wasn't a continuous monitoring of the heart rate, which was that a number of other things were done after her arrival before 1507 when the doctor was called, was not impressive.

Expert midwives were called for both sides. Heather Greenway is a state certified midwife (1979) with extensiveclinical, managerial, risk management, and midwifery supervision experience as a senior midwife, clinical risk manager, and Supervisor of Midwives. She has worked in consultant based hospitals, midwifery and GP led units and in the community and retired from clinical practice in 2012. She has an impressive CV describing skills in all areas of high and low obstetrics in labour wards, and other settings. As a Supervisor of Midwives she was involved in setting and reviewing guidelines and midwifery standards and practice as well as carrying out internal and external investigations of adverse outcomes. She has been a panel member of a regional CESDI (confidential enquiries into still births and neo natal deaths) team and has worked as a midwifery expert witness for over 20 years for both claimants and defendants in over 1,300 cases. She has also co-written a medico legal handbook on obstetrics.

She provided a report for DS in July 2015. Most helpfully to the court she participated in a joint meeting withSuzanne Cunningham, the expert midwife instructed on behalf of the Trust. Suzanne Louise Cunningham is a consultant midwife at University Hospital Southampton Foundation Trust, she has been a registered midwife for 28 years working in a variety of acute settings: acute hospitals, the community and education. She has a clinical leadership role in practice and in service development, education, audit and consultancy. She is also a Supervisor of Midwives. This summary of the experts' qualifications and experience is not intended to diminish their achievements in any way and a similar approach will be adopted in this judgment for all expert witnesses.

The experts' meeting was ordered a part of the preparations for trial and it took place on 25 February 2016. Ahelpful agenda had been prepared beforehand. The relevant matters addressed during the meeting included a discussion of the material disputes in the case factually, background explanations and definitions of some of the terms used in the evidence, a discussion about relevant guidelines, the interpretation of entries in the medical records, and the proper rate of foetal heart monitoring in the present case, and also whether the work of the midwives satisfied the Bolam test.

It was accepted that there are material disputes in the case as to (1) whether the Claimant's mother was in thesecond stage of labour in the minutes before 15:00, (2) the regularity of FHR monitoring that should have been undertaken before 15:00, (3) whether the membranes were artificially ruptured and (4) how long following discovery of the low FHR should medical assistance have been summoned. The two experts agreed that there are three main stages of labour; the first stage is from the onset of regular painful contractions and progressive cervical dilatation until the cervix is fully dilated, there may be a stage late in the first stage which has been called the "rest and be thankful phase" but this does not occur in every labour and when it does it usually lasts no longer than 20 minutes. It was accepted that this stage does not require commencement of increased FHR monitoring.

The second stage of labour is from the full dilatation of the cervix until the birth of the baby. The length andsuccessful progression of the second stage cannot be predicted or assumed and without being able to observe visible progress when there is maternal pushing Heather Greenway (HG) added that it is necessary to check the cervix is fully dilated if there is involuntary maternal pushing for a period of time, no more than 30 minutes but no sign of the presenting part. Suzanne Cunningham (SC) added that there is a stage often described by midwives as "transition" when the cervix is almost fully dilated, the contractions become very painful and women often feel panicky and unable to cope any longer with the contractions. This is often followed by a quiet phase when the contractions then reduce in frequency almost as if to allow the woman to gather her resolve for the second stage which requires her to become physically and consciously active in birthing the baby. The third stage of labour is from the time of delivery of the baby to the time of delivery of the placenta and membranes, both experts agreed that it is not possible to accurately confirm the onset of first and second stages. They also agree that in FS's case there were some symptoms of second stage described before the membranes were seen bulging at the introitus at 15:00 and full dilatation at second stage was confirmed at 15:05. HG added that the second stage was likely to have been achieved some time before 15:00 because the cervix is usually fully dilated if a bag of membranes is visible at the introitus. SC however expressed a view that there is no evidence that the active second stage had started prior to the 15:00 bag of membranes becoming visible. She continued

The midwives agreed that in respect of monitoring the relevant RCOG/NICE Guidelines (2001) directedmidwives to monitor the FHR by checking it for a minute immediately after a contraction, every 15 minutes during the first stage and every five minutes during the second stage SC stated that the rational of the more frequent monitoring during the active second stage is because of the presence of the expulsive contractions which last longer and are accompanied by a compulsive urge to push and she expressed the view that these longer contractions can mean less efficient foetal oxygenation during the expulsive contractions from cord or head compression or reduced perfusion at the placental site. HG on the contrary drew attention to the evidence of the midwives. It is right to note that SMW stated that she had increased foetal monitoring to five minute intervals in accordance with Trust guidance. The assumption made by HG is that at that point SMW had decided that SS was in second stage of labour.

The experts agreed that they are unable to explain the irregularity of intervals in SMW's recording. HG was ofthe view that a student midwife would be taught to carry out and record observations in accordance with recommended practice at the time. She relied on the action of discontinuing the partogram record of the FHR from 14:06 and drew an inference from that as to the assumption within the midwifery staff that FS was in active second stage of labour. Further support came from the request made by midwifery staff for FS to push. SC however drew attention to the change in practice caused by the NICE guidance in 2001, in that intermittent auscultation for low risk women in labour was introduced and continuous monitoring was no longer applied in cases such as FS's. She would not be critical of monitoring more frequent than every 15 minutes, which the records demonstrate occurred from around 11:00 not simply from 14:06.

Both experts agreed that there is no evidence in the clinical records that FS's membranes were artificiallyruptured and the only support for this claim is the evidence of FS and ES. The experts agree that if I conclude that FS was in active second stage of labour at any time up to 14:52 then a FHR should have been checked by 1457 and HG points out that if SMW was actually auscultating every 5 minutes "in accordance with Trust policy" she would have begun to check the FHR at 14:57. By contrast SC remains of the view that there was no basis for concluding that FS was in the active second stage of labour at any stage up to just before 15:00 and an auscultation at 1457 was not mandatory. Once the abnormally low FHR of 60 beats per minute was established at or around 1500 the commencement of continuous CTG should have immediately resulted.

Both experts agree that a confirmed diagnosis of second stage of labour can only be made by vaginalexamination or when there is a visible presenting part. HG expressed the view that it would have been reasonable to assume a diagnosis of second stage labour from the signs and symptoms that MWV described. As long as MWV had checked and confirmed full dilatation had been achieved after a period of pushing. SC however stated that in a low risk spontaneous labour there is "no requirement to rush into diagnosing the second stage of labour". The practice of the day in 2005 was consistent with presumptive signs noted by MWV that the second stage was approaching to enable her to delay a vaginal examination due at 1415. A conscious decision not to perform a vaginal examination and to allow an hour for further presumptive signs of the second stage is a practice that SC says began to emerge at the beginning of this century and is now very much part of normal practice and is used as a method of supporting women in normal labour providing observations of signs that the second stage are recorded as they appear.

The experts agreed that it was reasonable for midwifery staff to check the accuracy and ongoing rate of the FHRby directly comparing the auscultation findings with the maternal pulse before seeking medical attention. They also agreed that the actions taken by midwifery staff were reasonable although they did not agree as to when the obstetrician should have been called and the timings of the other actions carried out. SC's opinion is that

Both experts agreed that it was reasonable to involve a senior coordinating midwife, although HG makes thatconcession on the basis that this action did not result in any delay in making an emergency request for an obstetrician to attend. The midwives should have been aware of the urgent need to exclude cord prolapse and assess cervical dilatation by vaginal examination without the need to wait for or be prompted by senior midwifery assistance. SC states that the involvement of the senior coordinating midwife was reasonable and reflects the current practice as well as that of 2005.

The experts agree that medical attendance was sought seven minutes after the noted time of a bradycardic foetalheart rate. HG does not agree that the time taken was reasonable in this case, SC considers that it was. SC expresses her opinion in this way,

In evidence HG stated that it was never possible to assume that a woman will have a normal vaginal delivery.Once the midwives decided not to do a vaginal examination because FS was 'approaching 2^nd stage' which was a reasonable decision, more frequent monitoring of the foetal heart beat should have begun. The explanation for a reduced contraction rate before 1500 was not clear and there are many possible reasons for it. In her view it was not unreasonable for 'bearing down with contractions' to be written once and if it continued to occur for it not to be specifically noted again. This supported her view that FS was in 2^nd stage and should have been treated as such in respect of monitoring. Bearing down is expulsive and she would expect FS had been continually bearing down with contractions once it had been noted at 1406. Of course this is entirely contrary to FS' recollection of her contractions.

She would not expect 'nil visible' to be recorded i.e. SMW looking at the vulva during contractions unless SMWthought FS was in 2^nd stage and pushing. She agreed that unnecessary vaginal examinations should be avoided but she insisted that midwives need to perform them regularly for reassurance that the labour remains normal, assess the state of the membranes, level of descent of the head and the position of baby.

Full dilatation was probably before 1500 because the membranes usually appear at full dilatation but it is notpossible to say when full dilatation was achieved. She agreed that if the court accepted the evidence of the midwives that they were not treating FS as in the 2^nd stage of labour then there was no need to monitor more frequently than every 15 minutes.

At 1500 it would have been appropriate and essential to continually monitor FHR using a sonic aid to ensureFHR was audible and measure it as a key part of management once a slow rate is heard is to establish what is going to happen next. Even if the midwives thought that affixing a FSE was necessary they still needed to continuously monitor the heart rate while they were preparing for or putting the FSE on. By 1503 at latest they should have called the doctor because by then there had been 3 minutes of a bradycardic rate which had not recovered. HG stated that to do so would have been in line with the Trust's Guidance and the relevant algorithm to which the court was referred.

The witness agreed that it is not uncommon for a deceleration to occur during 2^nd stage and usually it resolves itself over a few minutes. She said,

HG was also asked about some much less relevant matters. It was put to her that she had not mentioned in herreport or evidence FS' evidence that she was in great pain, had lost her contractions and that when SMW palpated her abdomen she commented, on more than one occasion that it was 'rock hard' and 'strange'. HG agreed it would have been a gross breach of midwifery care if these signs had been ignored but she responded that the use of Entonox often leads to short term memory loss and when she had examined the notes and midwives' statements she had assessed that FS's pain was more likely linked to an OP position baby. She agreed that she should have made it clear that she did not find those parts of FS's evidence to be accurate.

She denied that she had ignored inconvenient factual evidence in writing her report and her evidence to the courtbecause it did not fit the amended pleadings in the claim. She maintained that her view had remained the same throughout although she could have dealt with these points in her report.

During her cross examination SC agreed that intermittent auscultation is a screening process and if a continuous abnormal heart rate is detected then CTG monitoring should be started. This was an important concession. When membranes rupture and the baby's head pushes down a very common vagal response is for the heart beat to fall. On hearing 60bpm she would expect a midwife to react at that time by turning the woman onto her left lateral position. There is nothing in the notes to confirm they did that but they may have not put everything down in the notes. It would have been good practice to do so but in any event, given this turned out to be a case of placenta abruption, putting FS into a left lateral position would have made no difference.

It was put to her that the midwives should have kept auscultating after the first minute of 60bpm but rather thandoing that they listened to the FHR only intermittently until the FSE was attached. She replied that she could not say what they did, in what order. This was not a satisfactory answer. It was put that even when they were trying to attach a FSE the midwives should have carried out continuous monitoring but she disagreed that that would be normal practice and described the process of attached a FSE:

She was asked about the entry in the notes at 1406 'bearing down with small pushes given, nil….' And she said,

She did agree that although health professionals in general are very poor at writing in abdominal palpationsbefore carrying out a vaginal examination, as occurred at 1010 in the notes, she would expect them to be done. She would also expect supervising midwife to draw the failure to record abdominal palpations to attention of the

She did not move from her opinion that the midwives caring for FS had acted appropriately,

I make the following findings:

Doctor Deshmukh made a statement on 19^th August 2013. She obtained her medical degree in India in 1989 and trained in Obstetrics and Gynaecology. She moved to the United Kingdom in 2001 and took up Senior House

She went on to describe explaining the situation to FS and removing her to theatre. She used a cordless phone tospeak to the consultant on call en route to theatre. Her operation note written retrospectively includes the following information

In evidence she said that she had not known anything about FS or her situation when she arrived. It is possiblethat the note at 1507 was correct and that she had been told she was needed to review a FHR but she didn't think that was the position. Thus, on arrival she had to take sufficient relevant history. Low risk pregnancies are midwife-led. A midwife gave her a brief history, from memory she believed that this included a low risk labour until very recently, had been progressing well, membranes had ruptured, the FHR had dropped, the co-ordinator had been called, a vaginal examination was done and she asked whether the position had been changed and the midwife said that that had already been tried. The scalp electrode was on and there was no cord prolapse FS was fully dilated and the DS's position was OP at the spine. Doctor Deshmukh was asking the questions during this conversation and she was told that the low heart rate did not recover during intermittent monitoring and changing of the position of FS.

She would have asked when the last heart rate was normal and was told it was normal until the waters broke. Itlooked normal when she looked at the notes, the last reading being eight minutes before the waters broke. She said that getting all this information would have taken 1-1½ minutes. Then she did her own vaginal examination which she did not time: a pack was opened and FS positioned. If she was contracting they would have waited for it to pass. She would have washed her hands and gloved up. Finally she would have put lubrication on her fingers and inserted her fingers into the vagina about 4cms to feel the level of the head in relation to the spine, check there was no cord prolapse in fact and check position of the head. All of this is normal procedure.

With hindsight she agreed that she could have just gone for a crash call based on the heart rate. But shemaintained that she wasn't wasting any time. She was making decisions as to the quickest route out for the baby and at that time the quickest route could have been an instrumental delivery. In the five minutes she was in the labour room there would have been at least two contractions maybe more, so if she would have to wait for one to pass her work would take longer. She would be more likely to wait if FS was uncomfortable during the contraction.

It was put to her that it had taken her a long time to come to a decision in light of what was written in the notes.She disagreed: it was during the vaginal examination that she first saw blood and, when withdrawing her hand at the end of her examination, she saw fresh blood. She insisted that she had not stopped doing something between 1508 and 1513 in particular she didn't stop after the sudden blood from the vagina noted at 1508-09. She must have completed her vaginal examination by something like 1512 and then spoken to FS and to the midwives. She agreed it was clear to her from when she arrived that the baby had to be born soon and she knew the difference that 2 or 3 minutes might make to the outcome but that is what the vaginal examination is for i.e. to decide whether to try forceps. She said,

Forceps delivery was seriously considered but given the position of the baby's head she decided not to try a trialof forceps. She stated she was not taken by surprise by any of her findings but she was doing her own examination and based on her own findings she had to take the decision as to the quickest way to deliver the baby. She said that two or three minutes in a labour can make a difference positively as well as negatively e.g. she could have seen a change in position of the baby to a more favourable position. It was accepted by counsel for the Claimant that Dr Deshmukh would have been in breach of her duty had she not done her own vaginal examination but he put to her what would have been wrong with making the crash call as soon as she realised the position of the baby? She replied

It was put to her that she could have done a crash call before she carried out her vaginal examination and saved

Mr Elgot conceded that once the crash call had been made things went as well as they possibly could. He madeit clear his criticism was that it took Dr Deshmukh five minutes to decide to make the crash call. Dr Deshmukh said that with the benefit of hindsight one could say she had not needed to do any of the examination she had done but that was what she was trained to do and although she agreed there was very little to lose in making the crash call as soon as she had heard the full account from the midwives, she had to make a decision there and then on the mode of delivery and so she did what she needed to do to make that decision. She explained that circumstances can change in 3-5 contractions when the mother is contracting well. From experience there was a fair chance that vaginal delivery could be achieved provided rotation happened.

When pressed about her training she said that she was trained to do an abdominal examination to feel how farthe head had gone and if the uterus was contracting well having determined the position of the baby. The vaginal examination was necessary to get a clear picture. The advantages of ventouse or forceps would have been that delivery would have been quicker and also a major operation (emergency caesarean) would have been avoided. If it had been possible she would have done a non-rotational forceps delivery immediately. If she had put out a crash call immediately on her arrival in the room 10-15 people would have been taken away from other work they were doing at that time including other patients they were caring for in non-emergency situations. If she had then discovered a forceps delivery was possible her competence would have been questioned and she would have wasted the time of many medical professionals.

She also confirmed that it was unusual for such a low risk labour as FS's to progress to such an outcome but shedenied again that any time was wasted. They had all done what they needed to do. She denied that a crash call would only involve 3 or 4 people and further when she was asked about some handwriting on the CTG trace which appears to indicate that the vaginal examination took place at 1508-1509 rather than spreading over to 1512-1513 she said it was not her handwriting and someone else may have written VE in the wrong place on that

I found Dr Deshmukh to be an impressive witness and she displayed a reasoned response to the matters beingput to her. Once she had made the crash call at 1513 she acted efficiently and expeditiously to deliver DS via emergency caesarean section and DS was born 16 minutes later. I have no doubt that had she been able to she would have delivered DS instrumentally within the labour room which would have saved important minutes. I have also no doubt that her decision upon consideration that instrumental delivery was not likely to succeed was a good decision. The real issue is whether the Claimant has proved that she should have made that decision more quickly.

Mr Gerald Jarvis (GJ), a consultant obstetrician and gynaecologist produced a report on 15 July 2015. He isEmeritus consultant at St James' University Hospital, Leeds. He has been involved in this speciality for 42 years having qualified in medicine in 1971. He is a Fellow of the Royal College of Obstetricians and Gynaecologists and a Fellow of the Royal College of Surgeons of Edinburgh. He has written a postgraduate text book in the field and has provided expert testimony in similar cases in the past. He last delivered a baby in 2002 and retired from obstetric practice then. He produced his first report for the Claimant in 2008.

The defendant's obstetrics expert was Dr D J Tuffnell (DT). He is a consultant in obstetrics and gynaecology atBradford Hospitals since 1994 and has been an honorary visiting Professor in obstetrics since 2007. He was the

Helpfully for the court these two experts also took part in a joint meeting the fruits of which were noted downand signed by them on 19 February 2016. It is not necessary to set out all the topics they discussed in detail. They agreed that a vaginal examination by a doctor was not mandatory at 1406 or1430 hours. Whilst the cervix was not fully dilated a check of the FHR should have been recorded no less frequently than 15 minutes. Once the cervix was fully dilated this recording should be increased to no less frequently than every 5 minutes. The obstetric experts deferred to expert midwifery opinion but on a simple arithmetical analysis of the foetal heartbeat readings in the medical notes, the recording intervals plainly varied between close to 5 minutes and over 15 minutes.

Question 9 on the agenda was:

In the next question on the agenda the experts were asked to express an opinion on the balance of probabilitiesas to what a FHR recording at 1457 would have shown. GJ said that the foetal bradycardia would have been recognised 3 minutes earlier than it was. DT said that as this was before the rupture of membranes his view was that the reading would have been normal.

The obstetricians agreed that the symptoms of placenta abruption are continuous abdominal pain and vaginalbleeding. The classical sign is of a hard tender uterus and depending upon the degree of placental separation there may be FHR abnormalities as well. They also agreed that in response to a placental abruption the frequency of maternal contractions would typically be of a lower amplitude. The cause of the foetal bradycardia at 1500 hours was probably placental abruption. They also agreed that the abruption may have commenced before the membrane rupture but without any significant symptoms or signs and the rupture of the membranes may have led to a rapid extension and the sudden foetal deterioration.

The first indication of placental abruption was the FHR abnormality noted at 1500 hours. When asked to statetheir view as to when full dilatation had been reached GJ stated that full dilatation occurred between 1406 and 1505 but on the balance of probability closer to 1505. DT agreed that the cervix was identified as being fully dilated at 1505 and it was possible the cervix was fully dilated before that but it was not possible to identify the point at which that occurred.

Finally, the experts agreed they could not give an exact duration for the period of bradycardia and hypoxia on abalance of probabilities because they did not know when the bradycardia began. They did agree that there was at least 29 minutes of bradycardia before delivery and potentially a further 3 or slightly more minutes but this was a matter upon which they deferred to the paediatric experts.

In cross-examination GJ denied that he had ever expressed a view to the effect that Dr Deshmukh should haverequested a caesarean section within a minute of her arrival. Any reference to such a claim within the pleadings in the case was not his responsibility. He agreed that upon arrival Dr Deshmukh should introduce herself, receive a short relevant summary from the midwife, ask any questions necessary, look at the heart rate recordings given they were the primary reason for her being called and then make a decision which could include a vaginal examination even though one had recently been performed. However, the degree of urgency of the situation should effect how long all of this should take. This was one of the most serious obstetric emergencies and it would have taken GJ himself less than 30 seconds to get the relevant information. He could also see an argument for not performing a vaginal examination as it was obvious that delivery was required and he would have made that decision on the information he had gleaned himself. If a vaginal examination was to be done all that was necessary was to obtain verbal consent, it was not necessary for the doctor to wash her hands in a situation as urgent as this, she could simply put on sterile gloves. FS may have had to wriggle down the bed a little, with help. It would be necessary to clean the vulva with antiseptic and put on some lubricating cream, the labia would be parted with the left hand and the doctor should insert two fingers from the right hand into the labia for the examination. It doesn't take long to confirm full dilatation and whilst ascertaining the station of the baby's head against the ischial spines he would have left a hand on FS's lower abdomen in order to be able to combine the abdominal and pelvic findings. The midwives had excluded cord prolapse and with the information thus gathered he would know whether it was going to be an easy or difficult operative vaginal delivery. If it had been easy he would have proceeded with a vaginal delivery, if difficult or he was worried that it might fail he would proceed with a caesarean section.

From the point of verbal consent to withdrawing his fingers following the vaginal examination would take 1-2 minutes at this point the decision is virtually instantaneous because the vaginal examination would have told him if vaginal delivery was possible. In his opinion a maximum of 3 minutes is all that could reasonably be required and the 3 minutes period was in his view the slowest time that a reasonable obstetrician would take in an emergency situation such as this.

He was surprised at the evidence from Dr Deshmukh that the time required was or may have been extended bycontractions. The only reason to desist during a contraction would be to avoid giving the mother two lots of discomfort and whilst sympathising with her given the clinical emergency GJ would not desist in his vaginal examination despite the discomfort. He also disagreed that the hope of the baby's head rotating from an OP position at full dilatation was a realistic one. In his experience it is not uncommon for someone who has had a baby before to achieve such a rotation but uncommon for someone in their first labour to do so.

He expressed a view that once the CTG print out is examined and assuming the electronic times recorded thereare correct then it would appear that the foetal scalp electrodes trace started at 1506. The pattern of the trace looks different post 1508 and it may be that that was when Dr Deshmukh was doing her vaginal examination and her fingers interfered with the foetal scalp electrode. It may be that at 1508-1509 was the time when the vaginal examination was actually being performed despite Dr Deshmukh's evidence that she finished her vaginal examination just before 1513 and made her decision at that time. On the other hand the CTG contains final traces at 1512 which would be consistent with Dr Deshmukh's evidence because the foetal scalp electrode would be taken off the baby's head at the end of the vaginal examination because a decision had been taken to have a caesarean section. He denied that 10-15 people would be summonsed were an emergency crash call made, in his experience it would be a far smaller number of people.

He agreed that in the vast majority of placental abruptions no cause can be identified and it occurs "out of theblue". He also agreed that it's not possible to determine full dilatation without vaginal examination. He agreed that there were no convincing signs of full dilatation as 1406, the additional evidence of vulval pouting and anal dilatation was timed at 1415. It was unlikely that FS had been in the second stage of labour from then until 1500 given the absence of other evidence. It was sensible to say the onset of full dilatation was closer to 1505 than 1406. However onset of full dilatation should have been presumed if the midwife had evidence that FS may have been in the second stage of labour on the basis that frequency of observations must increase for good reason. In those circumstances one either did the vaginal examination or erred on the side of caution and initiated second stage observations at no more than 5 minute intervals.

GJ interpreted the number of recorded observations and SMW's assertion that she was acting in accordance withthe Unit's policy together with all the other pieces of evidence suggests to GJ that the midwives did think FS was in the second stage. He did not consider FS's evidence of a hard abdomen to be evidence of a massive abruption earlier in the day although it could have been evidence of a small abruption which did not have an effect on the FHR. Bleeding in an abruption occurs between the placenta and the wall of the uterus i.e. outside the amniotic sac and it takes time for the blood to get in to the amniotic sac and mix with the fluid therein. However rapid release of the liquor at rupture of the membranes may make a placental abruption which has already occurred worse. When the FHR was listened to quickly after rupture of the membranes it was 60 beats per minute and not in the process of falling. If the spontaneous rupture had been the cause of the abruption the fall in the FHR would not have been instantaneous, it would have taken some time and would not have reached a steady 60 beats per minute so soon. On the balance of probabilities GJ' view, in evidence, was that abruption preceded rupture of the membranes and the FHR fell progressively until 60 began the new steady rate. On the balance of probabilities he believes that an auscultation at 1457 would not have given a reassuring reading. The drop in FHR was unheralded but it only occurred after the abruption had happened and so abruption before 1500 is a probability in his view rather than simply a possibility. He stated that this view was speculative i.e. there is no certainty. What I took him to mean by that was that it was his best shot at interpreting the evidence, using his expertise he was not suggesting it was guess work or mere speculation. He accepted that in his report he had stated that "the slow foetal heart rate at this time [1500] leads me to propose that the placental abruption had probably just occurred."

He was asked whether spontaneous rupture of the membranes itself could have been the sole cause of placentalabruption and he said that where there is excessive liquor volume that was possible but with a normal liquor volume he had not seen a placental abruption and found it improbable given the number of times that membranes do spontaneously rupture.

Returning to Dr Deshmukh it was GJ's view that in a life threatening situation such as this one although theobstetrician was entitled to make her own assessment she should have achieved that within three minutes rather than the five minutes that she took. The five minutes was unacceptably long in his opinion, indeed three minutes was longer than Mr Jarvis would himself have required but there has to be a range and in his view the reasonable range was up to three minutes. What was at stake was not how long the doctor wants to take but how long the baby could spare. In GJ's view five minutes was too long when there had already been prolonged bradycardia. Returning to the topic of crash calls he agreed that the last time he had put out a neonatal crash call would have been in the early half of 2002, but he denied that he had underestimated the number of medical professionals who would be required to respond to such a call.

DT's evidence under cross examination was that FHR changes can be very quick. When decelerations occur therate can go from normal to 50 or 60 within 5 to 10 seconds, for example as the uterus contracts the FHR may plummet and then recover quickly. His view was that there is likely to have been a small placental abruption earlier than 15:00 but when the dramatic effect of rupture of membranes at full dilatation was felt the major abruption took place. He urged caution in respect of slicing up time periods in order to ascribe particular moments to specified actions. He denied that Mr Jarvis was right and that it should have taken Dr Deshmukh little more than a minute or a minute and a half from 15:08 when there was sudden blood loss to decide the mode of delivery. In DT's view the situation was urgent but the key was to make the right decision as to mode of delivery and Dr Deshmukh was making the decision carefully. She was a doctor in training and she should not be blamed for taking a few more minutes to make the decision than another doctor may have done. I understood DT to be saying no more than Dr Deshmukh's reactions were within a reasonable range rather than that special allowance should be made because she was a junior doctor.

When she had referred in her evidence to the court to the possibility of her judgment being questioned if she hadmade a premature crash call, in DT's view she was simply reflecting honestly on the case. Sometimes it takes a bit of time to make the decision right and she was trying to work out as quickly as possible what was the best way out of the situation. To make the decision for an emergency caesarean section within five minutes was reasonable, that was five minutes split up between deciding to deliver and deciding mode of delivery. It was important to remember she had never met FS before. In the context of obstetricians making serious decisions everyday going for a caesarean section when the baby's head had gone down could lead to difficulties when trying to get the baby out or to maternal danger, so although a placental abruption is an emergency situation for the baby there was a lot for the doctor to consider. What was reasonably required was to take a decision within a reasonable time and in his opinion this is what Dr Deshmukh had done.

As to detailed examination of the minimal traces captured on the CTG DT urged caution because this caseconcerned a very short period of time and it was not possible to be robust about the particular time a reading or note should be ascribed to. He made the sensible observation that usually CTG traces are considered following recording over a period of hours. In conclusion he told the court that that an instrumental delivery in FS's situation would have achieved birth more promptly but the risk was that the doctor could embark upon an instrumental delivery and fail, which would lose time and cause further trauma. "It is one of the more challenging decisions in obstetrics, deciding whether to achieve birth in the room and we are entitled to take time to make the decision we consider to be reasonable. Dr Deshmukh did just that". Findings as to Obstetrics

I make the following findings as to the obstetrics evidence (I have born in mind the paediatric expert evidencewhich is summarised later in this judgment):

Given the findings I have made as to negligence, namely that there was a maximum of 3 minutes of negligent delay from 1504 to 1507 only, the evidence of the remaining experts, particularly those concerned with causation, is strictly of less relevance, as it has not been contended that a saving of 3 minutes would have materially affected the degree of injury. However, lest my findings on breach of duty are challenged

The evidence of the neuro-radiologists was agreed and neither Dr Forbes nor Professor Griffiths was called forcross examination. A joint expert's meeting had taken place and the record is signed by both experts on 3 March 2016. A recent MRI scan from earlier in 2016 was available and examined. The experts had prepared their reports based on an MRI scan in 2006 but this was superseded by the fresh radiology evidence. They agreed as to the expected areas of injury following the sort of hypoxic episode endured by DS. Although there is in general a relationship between the severity of ischaemic injury and duration of acute profound hypoxia (i.e. more severe exposure tends to produce more extensive injury) there is no simple relationship between the degree of exposure and the individual sites of anatomical injury. DS's pattern of brain injury as revealed by the neuroradiology is consistent with acute profound hypoxic ischaemic injury. The brain was otherwise morphologically normal for a mature infant prior to the insult responsible for the abnormalities described. There was no evidence of major developmental malformation or congenital abnormality. The experts also noted from the Claimants medical records that there was very little head growth in the week after birth. His head circumference initially being on the 75^th centile falling to the 9^th centile at ten weeks, 2^nd centile at four months and subsequently to 0.4 centile.

Having regard to the MRI scan of 18 February 2016, the major location of white matter damage was describedby the experts and both agreed that the Claimant's microcephaly (reduced skull) is an atypical feature.

Dr Anthony Emmerson (AE), a consultant neonatologist, was instructed on behalf of the Claimant and provideda report dated 3 January 2016. He is an extremely well qualified expert. Having become a medical doctor in 1983 he was appointed a consultant neonatologist in 1993, from 1996 to 2003 he was the clinical director at St Mary's Hospital for neonatal medicine and held that post for both neonatal medicine and surgery between 2003 and 2011. He is a fellow of both the Royal College of Physicians and Royal College of Paediatrics and Child Health and was the lead clinician for the Greater Manchester Neonatal Network until April 2012. The area of his expertise particularly called upon in this case is the treatment of DS immediately after his birth and whether this may have made any contribution to his ongoing disability and the impact of any additional time required for resuscitation of unnecessary delay in expediting DS's delivery.

The neonatal expert instructed on behalf of the Trust, Dr Janet Rennie (JR) is an established and experiencedexpert witness. Her practice as a doctor began in 1978, she was elected to a fellowship of the Royal College of Physicians in 1994, she is also a fellow of the Royal College of Paediatrics and Child Health and in 2008 she was elected a fellow ad eundem of the Royal College of Obstetricians and Gynaecologists. She has a special interest in brain injury in babies and held a consultant appointment at Cambridge University until 1995 where she was also director of medical studies at Girton College. She has had other academic roles in consultancy and has been clinical lead in neonatology at University College London Hospitals. She has published extensively. Including contributing chapters to the major British textbook of paediatrics. She has extensive involvement in research into neonatal brain injury and has published many peer reviewed papers on that topic. From 2002 to 2005 she was the chair of the Royal College of Paediatrics and Child Health Specialist Advisory Committee, responsible for setting standards in training in neonatal medicine in the United Kingdom, having been on the Committee since 1997. She has 20 years' experience of medicolegal work advising claimants and defendants in approximately equal proportions and appearing in court when required.

A joint meeting of neonatal experts was held by telephone on 16 March 2016. The notes of that meeting weresigned on the same date and provide a useful summary of the expert opinion for the court. The experts agreed that the pattern of brain damage seen in DS's brain is that of an acute profound hypoxic ischaemic insult. They noted the mismatch between the extent of white matter loss (which is not very extensive) and the microcephaly evident in DS. On the question of the immediate cause of the deceleration in DS's heart rate detected at around 15:00 hours, they deferred to the expert obstetricians but noted that both of them agreed that it was the placental abruption although Mr Tuffnell was of the opinion that there was a bradycardia in response to the rupture of the membranes and acute placental separation at 1500, while Mr Jarvis was not so sure about the direct relationship between the two things.

Question 3 on the agenda was,

They were asked what would be the minimum period after which the foetus would not be expected to survive,and they agreed that in primate animal experiments performed in the 1970s more than 25 minutes acute profound total hypoxic ischaemia could be the subject of resuscitation but animals who has suffered such a long insult generally died in the neonatal period. In modern neonatal intensive care units the experts observe that it is possible for babies who have experienced a longer than 25 minute period, to be resuscitated and survive. This

DS's heart rate was recorded as at 100 beats per minute by 15:44 he having been born at 15:29. DS's condition atbirth was very poor, he was effectively still born. He had no recorded heartbeat, was floppy, pale and not breathing. DS required full cardiopulmonary resuscitation with chest compressions, positive pressure ventilation and intravenous adrenaline. Taking into account the notes kept post-delivery, the period of resuscitation required was between 10 and 15 minutes, JR preferred 15 minutes and AE preferred 10 minutes. By 15 minutes postdelivery, DS's heart rate was noted to be above 100 beats per minute. When asked to consider the likely duration of foetal compromise following the placental abruption on the balance of probability, the experts agreed that the period before birth was approximately 29 minutes (or 32 minutes if the insult started at 1457). Given that resuscitation was between 10 and 15 minutes, the total period was between 42 and 47 minutes or 44 to 47 minutes. The period it took to resuscitate DS equates to the period of hypoxic ischaemic damage continuing postdelivery.

The experts agreed on a period of 10 minutes of profound asphyxia insult being bearable without it causingdamage to the foetus. Assuming that the start of the insult was 1457 or 1500, 10 minutes of non-damaging hypoxia would move the threshold for intact survival to 1507 to 1510.

The Claimant's case being that he should have been born at 1520 or 1523 instead of at 1529 and would havebeen born at those times had there not been negligent delay of either nine or six minutes in the treatment of SS's later stages of labour, the experts were asked whether birth nine or six minutes earlier than 1529 would have made any material difference and if so how. JR's view was that if DS had been born at 1520 to 1523 he would still have required a period of resuscitation. As the period of resuscitation in her view was the order 15 minutes, earlier delivery would have required resuscitation for a shorter period but still likely to have been more than five minutes probably of the order of eight minutes. The total period of insult would then have been the order of 30 minutes rather than up to 44 minutes. Given this duration and the unusual nature of DS's microcephaly, JR was of the opinion that there would have been little functional difference in outcome to DS of delivery six to nine minutes earlier. The microcephaly would still have been present but not as marked, which would probably have led to less severe cognitive impairment than is now the case, but DS would still, in her opinion, have had mild to moderate cognitive impairment and motor difficulties.

AE was of the opinion that a reduction in nine or six minutes before delivery would have reduced the period ofresuscitation required to no more than five minutes. As a result, the insult would have been ended closer to 1525-1528, therefore an insult of seven to 10 minutes in total (allowing for 10 minutes non damaging hypoxia at the start) hence the reduction would have made a material difference.

On the basis of around 30 minutes of insult JR would expect the Claimant to sustain similar damage to thevulnerable structures of the deep grey matter to that which he has now and the microcephaly would still have occurred to some degree. By contrast AE while accepting that there would have been some damage to the deep grey structures is of a view that if the microcephaly was due to the extended period of insult then this would have been avoided if the total insult had only been 7-10 minutes.

The experts were asked to identify the likely contribution made by the periods of alleged negligent delay on abalance of probabilities. JR's response to this was that if the microcephaly was due to the insult this would have been less severe had the delay if proved not taken place but it would still have been present to a degree and DS would have had some learning difficulties in combination with motor problems and she did not feel able to suggest a percentage. AE deferred to the paediatric neurologists on this topic.

Both experts agreed that given the lack of neuro-radiological evidence of extensive white matter loss the DS'smicrocephaly is an atypical feature but if a genetic or other cause is excluded then it is probable that the microcephaly was caused by the insult. They agreed that the microcephaly is likely to be contributing to DS's learning difficulties. In particular, the damage seen to the hippocampi is likely to be responsible for memory problems and can impact on learning but on the evidence available it was not possible to exclude a genetic cause

In evidence AE stated that it was important to be realistic about timings concerning resuscitation. Duringresuscitation the neonatal heart is listened to briefly and a judgment is made as to what the heart rate is. This is different to the antenatal position where listening is done for a whole minute. In his opinion taking matters in the round it was likely that resuscitation to the extent of a heart beat per minute of around 100 was achieved at about ten minutes post-delivery or just after ten minutes. Whilst resuscitation was taking place DS's brain would still have been deprived of oxygen but less so than in utero. There was evidence of anaemia in this case which makes resuscitation more challenging. AE described DS as not the most profoundly disabled child. He accepted that adrenalin was administered to DS during resuscitation. This pushes the heart rate up but does not necessarily increase the volume of flow of blood and it would have been administered to get the heart beating more quickly. He agreed that the adrenalin took the heart beat up to over 100 beats per minute but he did not accept that this meant recovery did not take place until after the adrenalin was administered 14.05 minutes post-delivery. He agreed that it was a judgement call as to when adrenalin is given and adrenalin is only given if necessary, but he maintained his view that resuscitation did not take up to 15 minutes. He described this as a "deduced opinion" and not speculation but agreed that there was no hard evidence in the notes to support it.

In his report he had expressed a view that resuscitation was achieved at 10-12 minutes after birth but by the jointmeeting he had reduced his view to the lower end of that bracket. He said his mid-point was 11 and he stood by it. In essence he accepted that DS had been born at 1520 or 1523 he would still have needed resuscitation and the disagreement between himself and JR was simply as to the period of time needed to afford that resuscitation. DS was gasping very quickly after birth and in the witness's opinion that is not something which happens in a baby who is more profoundly asphyxiated.

When JR was cross examined she agreed that the joint statement following the joint telephone meeting was themost important statement of expert opinion in this field because it had taken place following the latest MRI scan of this year. It was put to her that the early gasping motions recorded in the notes could demonstrate the Claimant required less resuscitation than she had stated but she said that although there must be some heart rate when a baby is gasping the algorithms used in this situation would not indicate adrenalin or chest compressions unless the heart rate was less than 60 beats per minute. There is no note that this was the heart rate but she said that all junior medical staff are trained using algorithms which mandate no adrenalin of chest compressions if the heart rate reaches over 60 beats per minute. It wasn't necessary for them to note the heart rate in the medical notes but the fact that they gave chest compressions and adrenalin indicates that DS required it to achieve resuscitation. Adrenalin is a powerful drug which would not be given unless it was indicated. She described the training for junior doctors as standard throughout Europe and there is no indication that these junior doctors were following any other advice than the standard NHS procedures in 2005.

As far as microcephaly is concerned she agreed that if 6-9 minutes were saved in the overall time period and themicrocephaly was due to a progressive process then some degree of microcephaly would have been avoided but she did not agree that the entirety of the microcephaly occurred at the end of the hypoxic insult because there was no evidence upon which to base such a conclusion. She agreed that DS's motor function would have been the same even if he had been delivered 6-9 minutes earlier. Paediatric Neurologists

Two witnesses gave evidence in this field, Dr M Clarke (MC) and Dr L Rosenbloom (LR). Both men areexperienced experts. Dr Clarke has been a consultant paediatric neurologist for the last 25 years and is a fellow of the Royal College of Paediatrics and Child Health as well as honorary clinical senior lecturer in paediatric neurology at the University of Leeds. The management of neurological disability in childhood is an important part of his clinical practice. Dr Rosenbloom holds an honorary consultant appointment at the Alder Hey

An experts' meeting took place by telephone on 17 March 2016. They recognised that when dealing withcausation they had to consider their opinions upon the balance of probabilities in a pragmatic way. The notes of the joint meeting provide an extremely helpful summary of DS's current physical and cognitive abilities. The experts agree that DS has spastic cerebral palsy with the lower limbs being more severely affected than the upper limbs and with the additional presence some dystonia affecting the upper limbs. His head circumference is below the third centile at 49.2cm. He has good head control, can sit unsupported and crawl and bunny hop. He can pull up to standing with difficulty and has limited mobility indoors using a handheld K-Walker. On a Growth Motor Function Classification System cerebral palsy DS's function is level III. He can use his left hand to reach, grasp and play and can feed himself to a limited extent. He is not able to undertake any living activities himself. He does have difficulties with chewing. He can communicate using speech with short phrases rather than long sentences. There is no severe degree of dysarthria (unclear speech). Cognitively DS's abilities to understand, reason and interact socially and communicate are like those of a 4-5 year old, as opposed to his chronological age of 10 years. His younger brother, who is now aged 6, has developed beyond DS's capabilities. In summary, the experts agree that DS is on the border line between severe and moderate cognitive impairment and that if his IQ was measured it would be around 50.

When asked whether they found any clinical evidence of spasticity, they agreed that by January 2015 his legsdemonstrated moderate hypotonia rather than spasticity. There was some residual spasticity, i.e. persistent increase in muscle tone seen in the hamstring muscles on each side, possibly more so on the right, and a degree of weakness in the lower limbs. The experts considered that his reduced muscle tone and weakness were a consequence of surgical procedures he had undergone.

When asked about any clinical evidence of dystonia, the experts agreed that he has dystonic posturing of theupper limbs, most marked in the right hand.

Question 6 on the agenda was

The experts agree that a previously healthy foetus can withstand 10 minutes of APA without sustainingirreversible brain damage, although in clinical practice both shorter and longer periods may be seen. The experts also dealt with discrepancies within the notes concerning discrepancies between the labour ward clock and the delivery suite clock. Within this judgment the labour ward clock timings have been used and all other timings adjusted accordingly.

The experts were next asked to summarise and agree if possible the Claimant's condition at birth. They answeredin this way:

When asked to deal with the likely period of time over which DS acquired his permanent brain damage, theexperts disagreed as to the correct approach. LR described three possible ways of approaching this question.

The experts agreed that on the conventional basis preferred by MC the threshold by which DS had to have beendelivered for him to be born unscathed was on the balance of probabilities 1507. On the apportion model favoured by LR, assuming a start time for the APA of 1457, delivery and resuscitation by 1515 would have spared DS the brain damage.

The experts were asked to address their minds to the question of whether a saving of nine or six minutes indelivery would have made any material difference to the functional outcome for DS. They disagreed about the answer to this question. LR's view was that with birth nine minutes earlier, i.e. at 1520, and effective resuscitation achieved by 1530, DS would functionally have been the same as far as motor impairment from his cerebral palsy is concerned. It was probable however that his microcephaly would not have been as marked, although still present and he would have had less severe cognitive impairment than at present. He would have had a mild to moderate degree of cognitive impairment (approximately equivalent to an IQ of 70), and when considering this in the context of the physical difficulties, DS would still have required a very similar pattern of care and supervision as at present. With birth six minutes earlier and resuscitation achieved by 1535 and 18 minutes of damaging hypoxia as opposed to 15 minutes for birth nine minutes earlier, functionally the degree of motor impairment from cerebral palsy would have been the same, however he would have had a less severe cognitive impairment than is now the case and although a moderate degree would still have been present (approximate IQ between 50 and 70), when considered in the context of his motor difficulties this would still have required a very similar degree of pattern of care and supervision as at present. In summary therefore, LR's view was that even with delivery nine minutes or six minutes earlier than 1529, in essence the difficulties faced by DS and the degree of his need for care and supervision would have remained effectively the same leading to LR's conclusion that a degree of negligence contended for by the Claimant if proved would have led to no saving of injury had it been avoided.

MC however disagreed.

The consequences of this difference in opinion was made clear later in the record of the joint experts meeting.LR stated that even if the court were to accept Dr Clarke's view that had the Claimant been born six to nine minutes earlier he would have had "significantly less" "intellectual impairment", the functional difference on the balance of probabilities would have not been significant, especially within the context that the physical impairments would have been the same. DS would not have had capacity, would have required 24 hour support and or supervision, would not have been capable of employment, however the content of his speech may have been better to reflect the likelihood that his cognitive abilities, whilst not normal, would have been better. MC on the other hand thinks that there would have been significant functional differences in his social and cognitive functioning in that he may have had capacity for everyday decisions, although it's not likely he would have had capacity for managing financial and legal affairs. Although he would still have required 24 hour support and or supervision this could have been by people attending to him in his own home, he would have been capable of unskilled and supervised employment and the content of his speech would have been better to reflect the likelihood of his improved cognitive abilities, although he added in evidence that an element of speech malfunction would have remained.

In respect of the unusual feature of microcephaly, the experts agreed with other experts that if a genetic or othercause was excluded then the Claimant's microcephaly must be a manifestation of his APA albeit it is unusual and atypical as there is no extensive white matter loss on the MRI scan. It was not possible to exclude a genetic cause for the microcephaly on the evidence they had available.

In evidence, MC was pressed by counsel for the Claimant on the potential difference in cognitive functioning of

MC agreed that the total period of APA was 39-47 minutes. In evidence thought he did not agree however that ifdelivered at 1520 or 1523 DS's physical impairments would necessarily have remained the same.

He was challenged on this and agreed that in fact nothing had changed since the joint meeting he had had withLR but he said he had refined his thinking. He denied that his position was now a reverse of his opinion at the joint experts' meeting but stated that upon reflection he had come to the view that because the health

In testing his evidence in respect of physical functioning counsel took him to his report but despite furthertesting, his final position was this.

It seems to me that MC's opinion amounts in the end to no significant changes in physical ability althoughpotentially some better functioning. This is consistent with his report which stated that even if the height of negligence pleaded (9 minutes) be proved "DS's motor disorder would have been the same."

He was asked by the court about his opinion that DS may have achieved continence and why somethingapparently so significant was not mentioned in the joint meeting. He replied that continence is important and if DS was of a "normal" intellect he may well have gained continence because continence was an intellectual function or was related to intellectual function rather than simply a signal of physical functioning. I did not find this aspect of his evidence convincing and insofar as MC sought to soften the degree of physical impairment were the pleaded negligence of 6-9 minutes proved, I reject his stance as insufficiently reasoned.

In respect of cognitive functioning MC assumed a roughly linear progression of damage from APA: the amountof damage done would be greater the longer APA goes on. He agreed that in his report he had not drawn a distinction between delivery at 1520 and 1523 and when in examination in chief he said that DS could have obtained a low normal cognitive function, (that is an IQ of 80 where as in his report he said 70-80), he explained his reasoning as being that 6 or 9 minutes are a significant percentage of the total APA and so there must be a difference, albeit he could not provide a detailed assessment of the difference.

He had done a mathematical equation setting the proportion of damaging APA against the number of IQ points.This led him to assert that if the 6 or 9 minutes had been saved then DS would have retained an IQ of 75, i.e. half the cognitive impairment would have been avoided. It was put to him that IQ cannot be predicted in that blunt way and he agreed that he did not have any expertise on this discreet topic but he was simply explaining his opinion. Mr Evans QC put that even doing the mathematical calculation, if 25-33% of the damaging asphyxia would have been saved MC should have suggested an IQ improvement from 50 to 62-66 not 70-80. But the witness did not agree, he thought that 25% of a damaging element of asphyxia was more than minimal and therefore likely to have had more than a proportionally significant impact. I found this evidence unconvincing because there was no scientific basis for MC's calculation, which was close to guesswork and it was appropriate for MC to concede that he was not able to rely on research or discrete expertise to justify his opinion in this regard.

MC's calculation was that the reduction in insult would have taken DC out of the learning disability range he isin now into the low normal range. He also made allowance for the period of time taken for resuscitation and his view that a lesser period would inevitably have had an impact on cognitive functioning whether or not a linear calculation was justifiable. DS with a low normal range of IQ would have been able to enjoy more independence on a day to day basis with support for his physical difficulties and he would have been much more able to find solutions to daily problems for example getting dressed getting in and out of the bath and a much better chance of getting employment as well as a much better chance of becoming continent. However, he would still not have had capacity to manage his financial and legal affairs although, as recorded above, he may have had capacity for every day decisions.

In re-examination he confirmed that he had seen no evidence that the microcephaly was due to something otherthan the damage at birth. The agreed evidence is that DS's head circumference at birth was quite large but it declined in the first months after birth and the most likely reason in MC's view is that some acute insult at birth has had that impact of impaired brain growth and consequent microcephaly.

LR was also called during the trial and he confirmed that the recent MRI scan has changed the position of theexperts regarding causation. He remained challenged by the microcephaly. It is an unusual outcome but on the balance of probabilities he was prepared to accept that it was caused by the hypoxia. DS's case was one of a remarkably long period of APA which in many less robust children would have resulted in profound rather than (merely) severe difficulties. There was no scarring in the white matter of the brain which is unusual when there is microcephaly and LR conceded that it was possible that there would have been less microcephaly with earlier delivery but he was not sure about that. It was not the same as there being less spasticity, about which he agreed with Doctor Clarke. In re-examination he reconfirmed his position that on the balance of probabilities microcephaly was caused by the APA but it was not possible reliably to expand on that statement in terms of timing and progress.

He was also asked in cross examination about MC's IQ hypothesis. His reply was

The effect of his evidence is that even with the maximum reduction in the relevant period, contended for by theClaimant, delivery at 1520 followed by 5 minutes of resuscitation the period of damaging hypoxia would have been a minimum of 15 minutes (1510-1525). With that period LR's assessment is of a severely damaged child, as DS is now.

LR maintained his position that although a lesser period of APA insult such as 6-9 minutes would have led to "afew more IQ points" in DS's case there would have been no material difference to his cognitive functioning. Findings on Causation

On the basis of saving 6-9 minutes of negligent delay:

On the basis of the negligent delay of 3 minutes I have found proved, my conclusion is that for all the reasons setout above, the Claimant has not proved on the balance of probabilities that but for the negligent delay in delivery of 3 minutes, he would have not sustained brain damage or that the damage he has suffered would have been materially less severe in its impact on his ability and capacity.

A small clutch of minutes that pass by unmarked in daily life can be of vital significance to the health of afoetus about to be born. The medical professionals who care for a mother and baby in labour carry a heavy burden of responsibility. When labour goes wrong unexpectedly it is always right to call those professionals to account for their reactions albeit the examination takes place retrospectively and with the inestimable benefit of hindsight. Whether or not a baby was deprived of oxygen during birth due to the fault of any person owing a duty of care to the child, was the principal question for the court. If negligence be proved, and no, or no such severe, injury would otherwise have been caused, compensation for the injury is to be paid. If not, 'though the injury remain, no award can be made.

This is a very sad case. DS deserves a life as happy and free from concern as any other 10 year old child. He hasthe inestimable benefit of being lovingly cared for by his mother and grandmother. This trial has aired all that can be discovered about the events immediately before and after his birth. It is with regret but no hesitation that I am unable to make findings which would compel a financial award to be made so as to lessen the impact of his disability on his future life.

I intend to deal with any consequential applications administratively if possible.