Welds v Yorkshire Ambulance Service NHS Trust & Anor

On 13^th February 2000, Delsena Walrond (to whom I shall refer as “mother”) gave birth to a baby boy, Nile Joseph Welds, the claimant, at the Northern General Hospital in Sheffield. Sadly, the claimant suffered a severe brain injury as a consequence of being exposed to a short period of acute and profound cerebral hypoxia ischemia shortly before his birth. He now suffers from bilateral dystonic cerebral palsy causing a very severe degree of impairment of his motor function, a severe degree of cognitive impairment and microcephaly.

The claimant, by his mother and litigation friend, has brought a claim for damages against the Yorkshire Ambulance Service NHS Trust and the Sheffield Teaching Hospitals NHS Foundation Trust (the first and second defendants, respectively) alleging negligence on the part of both defendants; and that such negligence materially contributed to his brain damage.

By order of Master Cook, dated 29^th July 2014, it was directed that there should be a trial of liability and causation by way of a preliminary hearing. Accordingly, this hearing is limited to the determination of issues of breach of dutyand factual, as well as medical, causation.

The claimant is mother’s first and only child. She was born on 10^th April 1980 and became pregnant in July 1999, at the age of 19. Her pregnancy, up until a very short time prior to the birth, was uneventful. The expected date of delivery was 31^st March 2000.

On Sunday, 13^th February 2000, at about 5.30pm, mother decided to visit her mother, Dezna Ramsey (to whom I shall refer as “grandmother”). It took approximately three minutes for mother to walk from her house in Cranworth Place in Pitsmoor, Sheffield to grandmother’s house in Andover Street. As mother reached the corner of Andover Street, she felt a gush of blood run down the inside of her legs. She hurried on to grandmother’s house and, within seconds, she was inside.

Grandmother, immediately appreciating the seriousness of the situation, dialled 999 requesting an ambulance. The 999 call was received at 17.38 hours. Four minutes later, at 17.42 hours, the ambulance crew was activated and they arrived within three minutes, at 17.45 hours, at grandmother’s house. All those timings are agreed.

What precisely occurred after the crew arrived at grandmother’s house is in dispute. Suffice it to record at this stage that by 17.58 hours, that is within 13 minutes of their arrival, the ambulance left to go to the hospital with both mother and grandmother in the rear of the ambulance. The ambulance control room printout records show that the labour ward was called at 18.02.11 hours to enquire whether mother could be accepted onto the ward. At 18.03.00 hours, they confirmed that they would accept mother.

The time of arrival at the hospital had been the subject of dispute although, by the conclusion of the trial, Mr Maskrey QC, on behalf of the claimant, no longer pursued the case, at least with any vigour, on the basis of an arrival time of 18.15 hours. The latter time is to be found in the Labour Notes next to the words ‘Emergency admission via 999’. It is also repeated in the Clinical Notes. However, a time of arrival of 18.15 hours simply does not accord with what appears on the electronically generated printout which reflects the time when the buzzer is pressed by an ambulance man on arrival at hospital. The arrival time is recorded as being 18.04.50 hours. True it is that on the Patient Report Form, the Ambulance Technician, Tim Morley, has noted an arrival time of 18.03 hours but I make it clear at this relatively early stage in my judgment (because timings are so central to this case) that I regard the computer printout as being the safest and most reliable way of establishing the correct time of arrival. I am satisfied, therefore, on a strong balance of probabilities that the ambulance arrived at the hospital at 18.04.50 hours.

On admission to hospital, it was appreciated that mother was suffering from a large antepartum haemorrhage (APH). The Labour Notes entry at 18.15 hours recorded that mother was ‘bleeding a lot’. On any view (and the defendants do not seek to argue the contrary) mother presented as an obstetric emergency.

What transpired at hospital over a period of approximately ten minutes from the time of arrival to 18.15 hours is a matter of substantial dispute but the evidence strongly suggests that mother was in an assessment room on the labour ward by approximately 18.15 hours.

At 18.16 hours, mother was seen by an Obstetric Registrar, Dr Anthony Beardsworth, together with his Senior House Officer, Dr Taganova. He noted that she was 33 weeks pregnant and that she had had a ‘large painless APH’ which had started at 17.30 hours. He measured her pulse as being 120 bpm, indicating a tachycardia and consistent with a significant blood loss. In accordance with usual practice, a large bore intravenous cannula was inserted and a number of units of blood were cross-matched. Prior to doing an ultrasound scan, Dr Beardsworth’s differential diagnosis was placenta praevia, that is where the placenta is either partially or wholly in the lower uterine segment. He reached this provisional diagnosis on the basis that the vaginal bleed had been reported as being painless and he found the uterus to be soft and non-tender.

The ultrasound scan, however, demonstrated a different picture. It revealed a fundal placenta and, more particularly, extreme foetal bradycardia with a foetal heart rate of 30 bpm. At this point, it was evident that mother had in fact suffered a placental abruption whereby the placenta had begun to separate from the uterine wall resulting in the foetus becoming hypoxic.

At 18.21 hours, Dr Beardsworth made a decision that the baby should be born by ‘crash’ lower segment Caesarean section. Mother was duly taken to theatre. The claimant was born at 18.31 hours. At delivery, there was no spontaneous respiratory effort and the claimant was immediately intubated. His Apgar score at one minute was one and four at five minutes.

The agreed paediatric expert opinion provided by Dr Richard Miles, on behalf of the claimant, and Dr Rosenbloom, on behalf of the defendants, is that the claimant suffered a total period of acute and profound hypoxia lasting in the order of 25 minutes. Although he was born at 18.31 hours, it seems likely that a further five minutes elapsed before satisfactory neonatal brain circulation was restored. On the basis of these timings, it is agreed that the profound hypoxia began at 18.11 hours. Evidence suggests that a foetus can withstand profound hypoxia for a period of approximately ten minutes without suffering permanent brain damage. Thus, the experts conclude that the claimant began to suffer irreversible brain damage at 18.21 hours.

Dr Rosenbloom’s analysis of causation issues as set out in his letter dated 7^th October 2016 is agreed. Thus, the position is:

In broad terms, the issues can be summarised as follows:

It will be apparent that the determination of these issues requires an analysis of two separate but short time periods: namely, the 13-minute time period from when the ambulance men arrived at grandmother’s house and then departed for the hospital and the eleven minute time period between mother arriving at hospital and being seen by Dr Beardsworth.

The claimant’s case is that the ambulance crew should have spent no longer than ten minutes at the scene, a saving of three minutes. Further, it is contended that if Dr Beardsworth had been promptly notified of the need urgently to examine mother, he could and would have done so within four minutes of her arrival at hospital, a saving of seven minutes.

If there were to be findings on both these issues in favour of the claimant, then it would follow that Dr Beardsworth would have commenced examination at 18.06 hours. In that event, a finding would need to be made so as to resolve the dispute as to when Dr Beardsworth would have made a decision to perform a Caesarean section. If, on the other hand, the claimant was not able to establish any culpable delay on the part of the ambulance crew, then Dr Beardsworth would have commenced his examination at 18.09 hours. It is accepted that in that situation the events which in fact occurred from 18.16 hours onwards would have been replicated with a timeframe of 15 minutes between the examination and delivery, with delivery at 18.24 hours.

The defendants, whilst acknowledging certain failings on the part of the ambulance crew, maintain that 13 minutes was a reasonable time to take to install mother (and grandmother) in the ambulance. Equally, the defendants maintain that a lapse of time of eleven minutes between mother arriving at the hospital and being examined by the Obstetric Registrar was not unreasonable and accorded with a reasonable and proper standard of care.

Before examining the lay and expert evidence, it is appropriate that I should make reference to the somewhat unusual background to this claim. Of course, it is not unusual for claims arising from ‘Obstetric brain damage’ to be brought many years after the birth but what is striking in this case is that although the claimant consulted her present solicitors in 2001, and a claim was notified against the Ambulance Service in September 2001, together with a request for hospital records, a letter of claim was not sent until 14^th April 2010. It is not for the court to speculate as to what occurred during that period of nearly nine years but the inevitable consequence of the claim not being actively pursued during that period is that the court has the unenviable task of resolving a factual dispute about matters which occurred more than 16 years ago and in circumstances where memories are bound to have been dimmed by the passage of time.

Another striking feature of the background to this litigation is that not only was the original notification of the claim only to the Ambulance Service but similarly the letter of claim detailed failings only on the part of the ambulance crew. Indeed, not only was there no criticism of the hospital staff but there was positive approbation. It was stated, ‘...Ms R was met immediately by hospital staff who acted promptly in treating her case as an emergency’. As it happens, such accords with mother’s own testimony during the course of the hearing. The first indication of a claim being made against the hospital was when the claim form was issued in March 2013.

The thrust of the evidence from mother and grandmother is that the ambulance crew appeared to them to be in no hurry to take mother to hospital. They say that this was so despite the clear and obvious evidence of heavy bleeding: in particular, both ambulance staff seeing mother standing in the bath, bleeding. In her oral evidence, mother said that she was begging the ambulance men to take her to hospital but there was no response or reassurance from the ambulance team. Generally, they both say that the ambulance men were non-communicative and that no questions were asked about the colour or consistency of the blood or the quantity which mother had lost. In their different ways, both mother and grandmother recall the two ambulance men going up and down stairs but without doing anything productive or saying anything meaningful. It is agreed that a blanket was obtained before mother walked down the stairs out of the house and into the ambulance.

In the ambulance, both mother and grandmother maintained that they were placed in the rear, with both ambulance men in the front cab. Further, they claimed they were left to their own devices to settle themselves in the ambulance, without any assistance from the ambulance men. Mother described perching on the edge of a stretcher with her legs dangling over. They both said that there was no strap or seatbelt to restrain them.

Although it is no longer part of the claimant’s case that the journey from grandmother’s house to the hospital took too long, both mother and grandmother were critical of the speed at which the ambulance was driven and the fact that it seemed to stop at every red light. They also were unable to understand why the siren and the blue light were not activated.

The recollection of the ambulance technician, Tim Morley, was, in many respects, in marked contrast to that of mother and grandmother. Whilst acknowledging that his recollection was not complete (although he did make a written statement in 2002), he clearly recalled mother sitting at the top of the stairs on arrival at the house; and he had no memory of her ever being in the bath. He was prepared to accept that mother was still bleeding when they arrived at the house but he maintained that there was no evidence of excessive bleeding. He recalled her underwear as being clean and he believed that any blood was being contained by a sanitary pad.

In terms of what they did on arrival, he described how he went straight to the front door whilst his colleague, Michael Lee, who was the driver, went round to open the rear doors of the ambulance so as to make preparations for the unloading of any equipment which may be required. Although Mr Lee was the qualified paramedic, it is Mr Morley’s recollection that, at all times, he remained downstairs whilst he, Mr Morley, went upstairs. Mr Lee cannot shed any light on the matter because he has no recollection at all of the incident. Mr Morley claims to have taken a history from mother whilst standing at the top of the stairs. He also claimed that he asked mother about how long the bleeding had been going on for, whether she had any problems during her pregnancy and what stage of pregnancy she was at. In his statement, however, although he was able to recall, for example, the number of stairs and the type of stairs, he makes no reference to any answers given by mother in relation to his questions. Moreover, nothing is recorded on the Patient Report Form in relation to the bleeding, whether its duration, colour or consistency. He was unable to recall whether he took mother’s blood pressure and her pulse when at the house: again, nothing is recorded on the Patient Report Form. The only record of any monitoring on the Patient Report Form is checking the oxygen saturations at 17.58 hours (when the ambulance left the scene) and 18.03 hours (when the ambulance was approaching the hospital). He did recall his colleague obtaining a blanket before mother was taken to the ambulance. She was able to walk down the stairs herself.

Mr Morley said that in the ambulance mother was placed on a stretcher in a sitting position but with her legs up. He described a safety rail which was adjusted to secure the stretcher and that a seatbelt would have been applied. He maintained that he sat in the rear of the ambulance with mother and grandmother. He agreed that the blue lights and siren were not activated but said that it was unnecessary to do so because it was very light traffic (it being a Sunday evening) and the distance from the house to the hospital was very short.

Under cross-examination, Mr Morley conceded that he regarded this as a ‘routine incident’. This echoes what Michael Lee says in his statement: in explaining why he had no recollection of the incident, he said it was one of ‘many routine jobs’. On the other hand, in that statement, Mr Lee acknowledged that mother’s condition was serious and he accepted that such was the case when cross-examined. Equally, Mr Morley, although talking in terms of a routine incident in the sense that there was no dire emergency, agreed that it was necessary to get mother to hospital as soon as possible.

I heard evidence from Mr Martin Ashby, an education training manager with the Central Ambulance Service, on behalf of the claimant, and Ms Fionna Patricia Moore, who is a Fellow of the Royal College of Surgeons and a member of the faculty of Immediate Medical Care, on behalf of the defendants. In his report, after making various criticisms of the failure to undertake proper observations and to make proper records, Mr Ashby concluded:

“I am critical of the overall time taken from arrival at the address to arrival at the maternity unit and consider that the time taken is evidence of substandard care in the context of this case, which involved a patient in late pregnancy with APH.”

Ms Moore, on the other hand, whilst criticising various aspects of the ambulance team’s management, maintained that a time period of 13 minutes at the scene was entirely reasonable. Perhaps unsurprisingly, when Ms Moore came to discuss matters with Mr Ashby, she maintained that an on-scene time of 13 minutes was reasonable. Mr Ashby, on the other hand, appeared to do somewhat of a volte-face, for in the joint statement it is recorded in answer to question 5:

...the experts agree that an on-scene time of 13 minutes would suggest the crew determined this to be an emergency and acted with reasonable haste.”

Then, somewhat strikingly, in answer to question 6, which related to whether or not the experts thought the period of time at the scene was excessive, Mr Ashby stated that he felt the crew should have been away from the scene within ten minutes.

Mr Maskrey QC sought to clarify matters with Mr Ashby in evidence but Mr Ashby’s explanation for the inconsistency, as it seemed to me, lacked coherence. He said this:

“Based on the fact, the evidence we have with regard to the Patient Report Form and the procedures and observations the crews had taken, 13 minutes is a reasonable time on the scene. However, with the amount of information deemed (sic) by the crew as regards to what they have recorded on the Patient Report Form I would expect them to be away from the scene within ten minutes.”

He did go on to say, in answer to a question from me, that he considered ten minutes was appropriate bearing in mind what they actually did. In cross-examination, Mr Ashby went on to say that if a proper assessment had been undertaken, then this reasonably could have taken 13 minutes.

First, I need to say something about my assessment of the evidence given by mother and grandmother. I have no doubt that they were doing their level best to give an accurate account of what occurred once mother’s bleeding started. It follows that I am satisfied that neither of them was attempting in any way to mislead the court or intending to create a distorted picture of events, whether at the scene, in the ambulance or at hospital.

However, I must bear in mind that both mother and grandmother were in shock at the time when the ambulance men were at grandmother’s house. It seems to me inevitable that their obvious concern and anxiety will have had some bearing on their ability accurately to recall what precisely occurred. Furthermore, and perhaps more particularly, mother and grandmother were being asked to describe events which occurred now some 16 years ago. I have no doubt whatsoever that the passage of time has dimmed their memories and distorted their recollections.

I must also bear in mind that, perhaps unsurprisingly in the circumstances, there were a number of inconsistencies between what mother and grandmother said − for example, where they sat in the ambulance – and differences between what appeared in their written evidence as opposed to their oral evidence. It is unnecessary for present purposes to list the various inconsistencies. I observe, too, that there were various parts of mother’s evidence which were, on the face of it, inexplicable: by way of illustration only, she said that her training shoes were soaked in blood but she went on to say that she wore the same trainers to get into the ambulance, without having cleaned them. Equally, her description of the ambulance men standing in the bathroom for a number of minutes but not saying anything struck me as somewhat bizarre.

In the end, although both mother and grandmother had convinced themselves of the correctness of what they were describing, I find it difficult to place too much reliance upon their respective accounts. Whilst there is no doubt that mother had been bleeding (confirmed by the fact that grandmother had told the ambulance control that mother was ‘losing bright red clots’), I am not convinced that the scene was as described by mother when the ambulance crew arrived. The description, as it seems to me, that mother gave of it being like a horror movie is somewhat an exaggeration, albeit not a conscious one. Ultimately, however, the extent of mother’s bleeding and the extent to which it was evident does not go to the core of the claim because it is accepted all round that an antepartum haemorrhage in the third trimester is an obstetric emergency and needs to be treated as such.

On the other hand, the question of any delay on the part of the ambulance crew is, of course, a critical issue. I accept that it may have seemed like an eternity to mother and grandmother before they set off in the ambulance. I also accept that mother and/or grandmother may well have asked the question as to when they were going to hospital. I am unable to accept, however, as indicated above, that there were significant periods of time when the ambulance men were simply standing around doing nothing and saying nothing: such strikes me as inherently improbable.

But, and in as much as I treat the evidence of mother and grandmother with a degree of caution, similarly I do so in relation to the evidence from Mr Morley. In short, I did not find him to be an impressive witness and I am satisfied that he had no real independent recollection of the events which occurred in February 2000. On the other hand, he was entitled to rely on the contents of the statement which he made in 2002, which provided some information. But he had no real memory as to what questions he had asked mother and, more particularly, what, if any, information he elicited from mother.

Generally, I am bound to say that both the written evidence and the oral evidence was such that it is far from easy to re-construct what precisely occurred during the 13 minutes when the ambulance men attended at the scene. As will appear in the following paragraphs of this judgment, it is perhaps easier to identify what was not done at the scene during the 13 minute period.

The starting point is to look briefly at the guidelines which Mr Maskrey QC explored in some detail with Mr Lee and, to a lesser extent, with Mr Morley. The basic training provided by the Ambulance Service which Mr Morley accepted he had received (and indeed Mr Lee, although he had also received training as a paramedic) makes it clear that vaginal bleeding after 24 weeks is potentially very serious and may indicate separation of the placenta. It is said that, ‘Effective management may be achieved by: ... transporting to hospital without delay’. The paramedic training which Mr Lee accepted he had received goes into much more detail and it spells out that placental abruption: ‘...is life threatening for the mother and the foetus: a rapid emergency Caesarean section will often be needed’. Of course, it is right to observe that the ambulance team will not have known that the cause of the bleed was a placental abruption but the guidelines do say that an APH ‘usually’ indicates a placental abruption.

With the guidelines in mind, the question which has to be posed is whether this ambulance crew properly and sufficiently appreciated the seriousness of the situation, both in terms of mother’s wellbeing and foetal wellbeing. I do not read anything into the fact that they both described this as a ‘routine’ incident because, by that, I think that all they were saying was that they had not uncommonly had to transport a pregnant lady to hospital who was bleeding vaginally. Moreover, I accept the thrust of Mr Morley’s evidence that he appreciated that it was necessary to transfer mother to hospital without undue delay.

However, I conclude that there are justifiable criticisms to be levelled against the ambulance crew on the basis of what they failed to do, in particular:

For these reasons, I find that the management by the ambulance crew fell below the standards to be expected of a reasonably competent ambulance service.

As will be appreciated, however, the crucial question is whether it can be demonstrated, on the balance of probabilities, that as a consequence of this breach of duty there was avoidable and culpable delay in transferring mother to hospital. I have already made it clear that I am not able to place much reliance upon what mother and grandmother say was happening or not happening at the time when the ambulance crew were at the scene, although I accept that it seemed to them that there was a distinct lack of urgency. As to the expert evidence, I have already observed that I found the evidence from Mr Ashby on the critical question of whether the ambulance men spent too long at the scene to be inconsistent, contradictory and lacking in coherence. Whilst, ultimately, as Mr Maskrey QC reminds me, it is for the court to determine whether there was undue delay, I do prefer the opinion expressed by Ms Moore. She has been consistent throughout that 13 minutes was a reasonable time to spend at the scene but, equally, she has demonstrated her objectivity and impartiality in criticising the ambulance crew for failing to have sufficient concern about the welfare of mother.

Before making my determination, I should make it plain that I agree that it is unhelpful and artificial to try and break down into blocks of one or two minute individual and specific tasks. As Mr Maskrey QC submitted, some tasks will be done in tandem and, in any event, it is impossible to time with any accuracy how long, for example, it would take to fetch a blanket from the ambulance. Accordingly, I attach little or no weight to the attempted breakdown provided by Mr Morley in re-examination, the purpose of which was to demonstrate how the 13 minutes was used up. I must also bear in mind that this was not a case where there was any opposition to going to hospital: on the contrary, mother was very eager to go to hospital and she was entirely cooperative. Furthermore, there was no impairment to escorting her out of the house or getting her into the ambulance. It is also right that the ambulance was parked outside and, accordingly, only a very short walk from the front door.

Ultimately, it is a question of impression. I am permitted to take as a starting point what Ms Moore says to me and also to bear in mind that, at some stage, Mr Ashby appeared to agree with her assessment. True it is, there were a limited number of tasks which the ambulance crew had to perform but I accept what Mr Lee said in his witness statement where he describes how minutes get ‘eaten up very quickly...’ Aside from specific, identified tasks, the ambulance crew will have had to have had a discussion about appropriate treatment, whether she should be allowed to walk down the stairs herself or whether a stretcher was required, and there will inevitably, as I find, have been some face-to-face discussion, both with mother and grandmother.

As I have already observed, it is impossible to micro-analyse the number of minutes taken for each task. In short, it is impossible to be precise: the question which has to be posed is whether the timeframe was within a reasonable range. Looking at the matter in the round, I am unable to disagree with the opinion expressed by Ms Moore that 13 minutes at the scene was a reasonable time period in these circumstances. To put it another way, the claimant has not established that there was undue or unnecessary delay in taking mother from grandmother’s house to hospital. Moreover, as it seems to me, to contend that the period of time should have been no more than ten minutes is entirely arbitrary and somewhat artificial.

Accordingly, the claimant fails on this limb of the claim.

I have already made it clear that I find as a fact that the ambulance pulled up outside the doors of the hospital maternity unit at 18.04.50 hours. It is common ground that, by this time, the ambulance had reversed close to the steps to the unit’s entrance doors. The hospital staff had been forewarned of the arrival of mother and of the fact that she had a ‘large APH’ (such is recorded in the Midwifery/Labour Notes). Midwifery staff were awaiting her arrival. Mother and grandmother recall that they were waiting outside as the ambulance arrived: I think this is inherently unlikely given that it was a dark February evening. It appears to be agreed that the midwife immediately answered the intercom once it was buzzed. There was a wheelchair waiting. Mother was wheeled to a delivery/assessment room. There is a factual dispute as to where this room was located. For the reasons already explained, I am unable to rely upon the evidence of mother. I find as a fact that once through the entrance, the route taken was to the left and then down a corridor to a room which is now identified as ‘delivery 58’ but at the material time was ‘room 11’. It is impossible to be precise as to the distance from the entrance doors to the delivery room but it would seem to be about 20 metres.

On the totality of the evidence, it seems likely that it was the ambulance staff who wheeled mother into the delivery room. It seems likely that the handover of mother by the paramedics to the hospital staff took place in the delivery room. In cross-examination, Mr Morley accepted that the handover involved giving the midwife a copy of the Patient Report Form and providing a potted history of mother’s condition. It is not possible to say how long the ambulance men spent in the delivery room but Mr Morley, in his statement, speaks in terms of a turnaround time of 15 minutes and it is known that the ambulance crew was ‘green and available’ by 18.19 hours. It should also be noted that Dr Beardsworth has some recollection of waiting outside the delivery room until the ambulance crew had departed, although, in fairness, he does say that his memory may not be specific to this particular case and/or events. If he is right about that it would mean that the ambulance staff left the room at or about 18.16 hours.

What occurred after 18.16 hours when Dr Beardsworth began his examination of mother is not in dispute. There is no need to repeat that which appears earlier in this judgment as to subsequent events.

Before attempting to reconstruct what the midwives did or did not do once mother arrived at hospital, it is necessary to deal with a discrete issue, namely the absence of any evidence from any of the midwives who were involved. In short, Mr Maskrey QC invites me to draw an adverse inference from the second defendant’s failure to adduce any evidence from the midwives; and he says that the effect of such inference should be a finding that the delay between mother’s arrival at the hospital and being seen by Dr Beardsworth cannot be justified.

It is clear from the Clinical Incident Report forms (which, unfortunately, were not disclosed, due to oversight, until February of this year) that the two midwives who were involved in mother’s care at the relevant time were Sarah Piper and Kath Bailey. The claimant’s solicitors were able to locate Ms Bailey and they duly wrote to her on 27^th June 2016 requesting her assistance. It is apparent that in response Ms Bailey contacted the hospital. This prompted a letter dated 30^th June from the Trust to the claimant’s solicitors in which it was stated:

“Ms Bailey is now elderly, frail and suffering from Parkinson’s disease. She has expressed her wish that she does not want to be approached concerning this case and has been deemed unfit to assist further.”

As I understand it, no further approach was made to Ms Bailey.

As to Ms Piper, the defendant’s solicitors did contact her by email but there was no response until 25^th October 2016. The response from Ms Piper was copied into an email sent by the defendant’s solicitors to the claimant’s solicitors on the same date. This email, with some opposition from Mr Maskrey QC, was shown to the court during the course of the trial. The relevant parts read as follows:

“As I feel I have nothing of note to say, as I do not remember this case at all, I would be happier not having my details shared with the claimant’s solicitors and do not feel I can be of any help to yourselves too. I am very sorry not to be more helpful.”

It appears to be Mr Maskrey’s contention that once the midwives had been identified, it was incumbent upon the defendants to obtain statements and call them to give evidence. He argues that even if they had no independent recollection of the incident, their evidence would have been of assistance to the court in describing what would be usual practice and procedure where there was an obstetric emergency involving an APH. Further, and in so far as the second defendant seeks to say that midwife Bailey was not medically fit to give evidence, Mr Maskrey QC submits that merely to make such an assertion in an email is wholly unsatisfactory and that, at the very least, medical evidence should have been served together with a Civil Evidence Act notice.

Mr Maskrey QC invites the court’s attention to the guidance of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683 (per Longmore L.J. at paragraph 19) that:

“In such circumstances the court should judge a claimant's evidence benevolently and the defendant's evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings, see British Railways Board v Herrington [1972] AC 877, 930G.”

Mr Maskrey QC also refers to the case of Wisniewski v Central Manchester [1989] PIQR P324 (per Brooke L.J., at 340):

“From this line of authority I derive the following principles in the context of the present case:

(1)

In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)

If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)

There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)

If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

As it seems to me, in relation to Ms Bailey, there is no reason to doubt the contents of the letter dated 30^th June 2016, albeit that a more formal notice could have been served. At all events, given that Ms Bailey, on the face of it, was not fit to give evidence it seems to me that that was manifestly a good reason for the defendants not to call her and, accordingly, I decline to draw any adverse inference. Similarly, given that Ms Piper has no recollection of the incident and was reluctant to be involved, that again seems to me to be a good reason for the defendants not calling her to give evidence. Whilst it is true that the defendants called Mr Lee to give evidence even though he had no independent recollection of the incident, it does not follow that the defendants should be reasonably required to call evidence from a former employee who can give no independent account of what occurred. In short, I find that there were proper reasons and credible explanations as to why the defendants did not call the midwives and that therefore it would not be right to draw any adverse inference. Furthermore, as Miss Jones points out, there is no property in a witness; and it would have been open to the claimant’s solicitors to follow the matter up, at least in relation to Ms Bailey. In addition, the claimant could have applied to the court for permission to adduce expert midwifery evidence for the purposes of providing the court with an opinion as to what should occur in the circumstances which presented themselves and, in particular, how quickly the patient should be seen by an Obstetrician.

I turn then to the evidence in relation to what occurred once mother was wheeled into the delivery room. I need to exercise caution in attributing too much weight to the evidence from mother and grandmother, given my observations earlier in this judgment. However, the fact remains that both mother and grandmother confirmed that everything at the hospital happened quickly without any delay. Furthermore, grandmother told me that there was a midwife in the room seeing mother before the doctor arrived and that she was doing checks which she believed to involve taking her blood pressure.

Contrary to the submissions of Mr Maskrey QC, I think that it is permissible to rely upon the evidence of Dr Beardsworth as to what is likely to have occurred between the time mother was taken to the delivery room and the examination by Dr Beardsworth. I found Dr Beardsworth to be a very careful and measured witness but firm and unswerving in his evidence. As at 2000, he had been an Obstetric Registrar for over seven years. Of significance, as it seems to me, during that period, on average he saw between three and four major APHs per year. Thus, as I say, it seems to me that he is well qualified to give evidence as to what is likely to have occurred following an admission to hospital.

In answer to a question from Mr Maskrey QC to the effect that Dr Beardsworth was speculating as to what is likely to have occurred before he examined mother, Dr Beardsworth said this:

“I think it goes a bit further than speculation. It goes also on one’s overall experience of receiving patients who are being admitted for any reason but also any antepartum haemorrhage. Generally speaking, when we are admitting patients and when we act on the labour ward, we are trying to have I think more haste and less speed. We are trying to move at the appropriate speed for the level of situation without inducing anxiety and panicking people who are assisting with that or indeed in the patient. It is incredibly rare that one would imagine that someone would be admitted within just a few minutes and then handed over to me. It usually took some time.”

He went on to agree with Mr Maskrey QC that it was important for the patient to be examined by an Obstetrician as soon as that could be done ‘appropriately’.

In the light of the suggestion from Mr Maskrey QC that mother should have been seen by Dr Beardsworth immediately without any, or any significant, midwifery assessment, I asked him how often in his experience it had happened that the patient effectively bypassed a midwifery assessment and was seen immediately by him. He replied: ‘I cannot think of a single time in my experience that that would have happened’.

He went on to confirm that he had a memory of waiting outside the room to allow the ambulance men to leave. He went on to say this:

“...There would have been two midwives in there, they always have two midwives in admission. Once the ambulance crew have left, irrespective of whether this memory is this case, I would not have immediately entered the room. It may seem slightly bizarre but the midwives actually control the patient in labour, so I would wait outside until they then would come to the door and say, ‘Yes, you can come in. If that period of time went on for too long, I would probably start knocking...”

As to what the midwives would do prior to his arrival, he would expect them to check the patient’s temperature, pulse and blood pressure. Generally, this would be written down on a scrap of paper and handed to him. In this instance, it is right to note that Dr Beardsworth does not recall being given a piece of paper and, furthermore, he says that generally if he had been told what the blood pressure was, he would have written that into his notes. On the other hand, he said that the apparent absence of a piece of paper with a record of measurements and the fact that there was nothing in his notes about the blood pressure did not mean that no midwifery assessment had taken place.

Dr Beardsworth was also able to shed some light on the apparent discrepancy as to when mother arrived in hospital. He had recorded in his notes that mother had arrived on the labour ward at approximately 18.15 hours. In his witness statement, he said this:

“The ambulance crew may define arrival on the labour ward as the time they arrive at the front doors, while the hospital staff would generally record the time of arrival when a patient is comfortably settled in the delivery room bed and the ambulance crew have departed.”

In his oral evidence, he said that there were two possible explanations for recording the time of arrival as being 18.15 hours: one explanation may be that that was the time which was given to him by a midwife, or, alternatively, if he was correct in his memory that he stood outside the delivery room waiting for the ambulance staff to leave, he would have judged the arrival on the labour ward as being just before he actually recorded seeing her at 18.16 hours.

Finally, in relation to these matters, Dr Beardsworth was asked in re-examination by Miss Jones whether an arrival at hospital shortly before 18.05 hours and he, Dr Beardsworth, being called to see her at 18.15 hours, would have been a cause for concern or ‘...commendable in terms of speed or would it have been neither one nor the other?’ Dr Beardsworth said, ‘It would have been neither one nor the other’, from which I infer that it was his view that the time taken for him to be called was standard and reasonable.

In his report dated March 2015, Professor Ian Greer, instructed on behalf of the claimant, expressed the opinion that on the assumption that mother arrived at hospital at or around 18.03/18.04 hours, ‘There was an unacceptable delay in having her transferred to the delivery suite and examined by an Obstetrician’. This was on the premise that the transfer from the ambulance to the delivery suite should not have taken longer than five minutes. In his oral evidence, however, Professor Greer conceded that it was really a matter for the court to determine how long it was likely to take for a patient to be transferred from the ambulance into the labour ward. To my mind, that was a proper concession to make. Notwithstanding that proper concession, he did at one point express the view that eleven minutes was excessive but his evidence was confused because it was unclear how much time he was allowing for an assessment by the midwives.

In marked contrast to the evidence from Professor Greer, Mr Tufnell, the Obstetrician instructed on behalf of the defendant, has been consistent in his evidence. He has maintained throughout that a period of ten minutes or so elapsing before mother was seen by the registrar was reasonable. He said this:

“With my knowledge of how long it takes on a labour ward to move somebody from an ambulance into a room, and the actions of the midwives in the normal circumstances when a woman presents with bleeding, then I think if the doctor was called at 18.15 then that would be reasonable.”

Before considering what would be a reasonable timeframe in these circumstances, I remind myself that it is not permissible merely to look at the overall timeframe from when the ambulance crew were called and when the claimant was delivered. Mr Tufnell commented that to achieve a delivery within a period of 53 minutes from the time when the ambulance was called was exemplary but that is not the issue which I have to determine. Equally, it is plain that Dr Beardsworth acted with commendable speed in effecting delivery within 15 minutes of first seeing mother. Again, that cannot influence my approach when deciding whether it was reasonable for mother to be seen by an obstetrician within 11 minutes from the time when she arrived at the hospital doors.

As with the time taken by the ambulance crew, as it seems to me, ultimately it is for the court to form an impression as to whether such a time period was reasonable, whilst, of course, having regard to the totality of the evidence. I have already observed that I found Dr Beardsworth to be a compelling and persuasive witness. I do place reliance on his experience of these matters and his clear and unequivocal assertion that a period of eleven minutes is entirely reasonable. It is his evidence, which primarily influences my assessment, not least because he was well acquainted with the layout of the hospital and the practices which were in place.

But I do also derive some assistance from the evidence from Mr Tufnell. He is a very experienced ‘hands on’ clinician, having being a consultant for some 20 years. He told me that he regarded ten minutes in a situation such as this as being ‘entirely consistent with usual practice’.

Whilst it is right that, at times, Professor Greer expressed a contrary view, I was left with the distinct impression that he did not feel competent nor comfortable about expressing an opinion as to a reasonable timeframe. Moreover, at times, I found his evidence somewhat confusing. I also bear in mind that it is over a decade since Professor Greer had been a consultant on a labour ward. For what it is worth, additionally, although of no relevance to the issue of timing, Professor Greer did give somewhat inconsistent evidence as to what might have occurred if Dr Beardsworth had carried out his examination a little earlier.

Despite my observations above, I need to address the hospital’s own guidelines which provide as follows:

“Immediately summon an Obstetric Registrar, Senior Registrar or Consultant and Anaesthetist. One person should be designated co-ordinator – usually Obstetric, Senior Registrar or Consultant. Alert Haematologist, blood transfusion service and switchboard...”

Understandably, Mr Maskrey QC urges me to give the word ‘immediately’ its ordinary meaning. I do so but I am also entitled to use common sense and to consider in practice how this guideline is likely to be applied. In any event, I am only concerned with what is consistent with reasonably competent medical practice.

I say again that it is artificial to give precise timings as to each task which was undertaken from the time that mother arrived in the ambulance but I am satisfied that it would take a few minutes for mother to be escorted out of the ambulance and into a wheelchair, to be pushed through the hospital doors and then along the corridor into a delivery room. A further short time would be needed to undress mother, put her into a gown and settle her in or on a bed. Further time would be taken up with a handover from the ambulance crew, albeit this would not be a lengthy process. I am satisfied, on the balance of probabilities, that some assessment was then undertaken by the midwives even though there is no documentary evidence to demonstrate that such was the case. It seems to me that since it was the usual practice for midwives to do such an assessment it is inherently improbable that they would not have done so in the instant case. This would have taken another short period of time.

Overall, on a strong balance of probabilities, I am satisfied that a period of approximately eleven minutes elapsing between the time of arrival at the hospital and mother being seen by Dr Beardsworth was both reasonable and in accordance with standard practice in an obstetric unit. I should add that it may well be that Dr Beardsworth had been told in advance, whilst he was on the labour ward, that mother was coming into hospital with an APH. He is unable to say either way but, whether he was or was not, it was reasonable for him to wait for mother to be settled in bed and for the paramedics to leave before he took over the care of mother.

It must follow that this second limb of the claim fails and that there was no breach of dutyon the part of the hospital.

For the sake of completeness, I need to deal briefly with medical causation. I agree with Mr Maskrey QC that if mother had been seen by Dr Beardsworth at 18.09 hours then, on the balance of probabilities, Dr Beardsworth would have decided to perform a Caesarean section by 18.14 hours, with the claimant being born at 18.24 hours and resuscitated at 18.26 hours. In that event, he would have suffered mild cerebral palsy. The position is somewhat more complex if there had been delay on the part of the ambulance crew and the staff at the hospital. In that event, mother would have been seen by Dr Beardsworth at or about 18.06 hours. The ultrasound scan would then have been applied prior to the bradycardia at 18.11 hours. Dr Beardsworth said that in that scenario, he would not have reacted immediately by calling for a Caesarean section at the moment of the onset of the bradycardia. He would have waited and observed and perhaps carried out a vaginal examination. He said in evidence that he might wait three or four minutes before deciding on a Caesarean section although he accepted that seemed like ‘a frighteningly long time’. On balance, I think it just more likely than not that in this alternative scenario, the claimant would still have been born by 18.24 hours and resuscitated by 18.26 hours.

I cannot conclude this judgment without expressing my deepest sympathy to mother. She attended the trial throughout in the company of grandmother and behaved with enormous dignity.

I wish to pay tribute to all counsel for the exemplary manner in which this trial was conducted and the very real assistance which they gave to the court.

There will be judgment for both defendants.