Keh v Homerton University Hospitals NHS Foundation Trust

On 9^th October 2013 Mrs Adeline Keh (“the deceased”), who had been born on 14^th January 1973, died as a result of sepsis caused by an infection in the operation wound in her uterus. The operation wound related to a caesarean section carried out on 18^th September 2013 when her child, Mawusi, was delivered.

The Claimant is the deceased’s widower. The claim is brought in negligence against the Defendant under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate, and under the Fatal Accidents Act 1976 on behalf of the dependents, namely the Claimant and Mawusi. Damages have been agreed, subject to liability in the sum of £150,000.

A very brief outline chronology is as follows:

There are three bases upon which it is said that the Defendant acted negligently so as to cause the deceased’s death.

The first basis is that there was always a high risk that induction would be unsuccessful and that labour would result in an urgent C-section. It is said that the deceased should have been warned of the risk and offered a C-section at the outset. Had she been so warned, the Claimant says that the deceased would have elected to go straight to a C-section. These issues arise:

As to causation the Claimant says that most C-sections do not result in infections. Relying on Chester v Afshar (Footnote: ¹) the Claimant submits that it is sufficient to establish that, had the C-section taken place at a different time to when it actually did, then infection would probably have been avoided, even if the risk of infection was unaltered by the timing of the operation. The Defendant’s case is that the microbiologists agree that the infective organism derived from the deceased’s skin “which was implanted into the deep surgical site during the caesarean section.” On that basis, a caesarean section carried out prior to 18^th September 2013 would probably have caused the infection. The oral evidence of the microbiologists needs careful examination on this point.

The second basis is that the deceased should have been offered a C-section on 18^th September 2013 an hour earlier than was the case, or at some stage earlier than that; also that the section negligently took 18 minutes longer than it should have done. The same issue as to causation arises as in the first basis of claim.

The third basis is that between 22^nd September 2013 and 5^th October 2013 there was a negligent failure to consider and perform a hysterectomy. 9. There is a measure of agreement on some issues, namely:

Therefore, the battleground on the third basis is breach of duty. Was it negligent not to have performed a hysterectomy by 5^th October 2013 at the latest? If it was then causation is not disputed.

I heard evidence from the following witnesses:

There is also a witness statement from Doctor Schwiebert. This is dated 19^th April 2018. Doctor Schwiebert is, and was, at the relevant time, a consultant anaesthetist with the Defendant. He was not called to give evidence.

There was originally an allegation based on the timing of prophylactic antibiotics at the caesarean section. This is no longer pursued. Doctor Schwiebert was responsible for administering the prophylactic antibiotics and his evidence is agreed. The Claimant concedes that prophylactic antibiotics were given before “knife to skin” at the caesarean section.

There are expert witnesses in three disciplines, namely obstetrics, microbiology and radiology. I heard from the obstetric and microbiological experts. There was no significant disagreement between the radiologists. It is agreed that the radiology and in particular the CT scan on 4^th October 2013 was properly reported. The radiology reports were admitted in evidence by agreement.

The obstetric experts are:

The microbiology expert evidence was from:

The radiology reports were from Doctor Weston dated 1^st January 2018 (for the Claimant) and Doctor Richenberg, dated July 2018, for the Defendant.

The joint statement of the obstetrics experts is dated 20^th September 2018. The joint statement of the microbiology experts is dated 6^th October 2018.

I was referred to the following cases:

Bolam v Friern Hospital Management Committee (Footnote: ³). McNair J set out the classic test as follows:

“…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art……Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

Maynard v West Midlands RHA⁴. Lord Scarman said:

“Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.”

Bolitho v City and Hackney Health Authority (Footnote: ⁴): Lord Browne-Wilkinson explained and refined the Bolam test in this way:

“……the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice……The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter…….

…… if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”

In C v North Cumbria University Hospitals NHS Trust (Footnote: ⁵) Green J, as he then was, gave a helpful analysis of the case law on breach of duty. He said (Footnote: ⁶):

“25.

……….It seems to me that in the light of the case law the following principles and considerations apply to the assessment of such expert evidence in a case such as the present:

i)

Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion.

ii)

This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent.

iii)

The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself.

iv)

In making an assessment of whether to accept an expert's opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is “responsible”, “competent” and/or “respectable”; and whether the opinion is reasonable and logical.

v)

Good faith: A sine qua non for treating an expert's opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a defendant's conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice.

vi)

Responsible/competent/respectable: In Bolitho Lord Brown Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was

“logical”. It seems to me that whilst they may be relevant to whether an opinion is “logical” they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as “logical”. Nonetheless these are material considerations….The following are illustrations….“Competence” is a matter which flows from qualifications and experience. In the context of allegations of clinical negligence in an NHS setting particular weight may be accorded to an expert with a lengthy experience in the NHS……..This does not mean to say that an expert with a lesser level of NHS experience necessarily lacks the same degree of competence; but I do accept that lengthy experience within the NHS is a matter of significance. By the same token an expert who retired 10 years ago and whose retirement is spent expressing expert opinions may turn out to be far removed from the fray and much more likely to form an opinion divorced from current practical reality…..A “responsible” expert is one who does not adapt an extreme position, who will make the necessary concessions and who adheres to the spirit as well as the words of his professional declaration (see CPR35 and the PD and Protocol).

vii)

Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A Judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency…….There are 2 other points which arise in this case which I would mention. First, a matter of some importance is whether the expert opinion reflects the evidence that has emerged in the course of the trial. Far too often in cases of all sorts experts prepare their evidence in advance of trial making a variety of evidential assumptions and then fail or omit to address themselves to the question of whether these assumptions, and the inferences and opinions drawn therefrom, remain current at the time they come to tender their evidence in the trial. An expert's report will lack logic if, at the point in which it is tendered, it is out of date and not reflective of the evidence in the case as it has unfolded. Secondly, ……..it is good practice for experts to ensure that when they are reciting critical matters, such as Clinical Notes, they do so with precision……Having said this, the task of the Court is to see beyond stylistic blemishes and to concentrate upon the pith and substance of the expert opinion and to then evaluate its content against the evidence as a whole and thereby to assess its logic. If on analysis of the report as a whole the opinion conveyed is from a person of real experience, exhibiting competence and respectability, and it is consistent with the surrounding evidence, and of course internally logical, this is an opinion which a judge should attach considerable weight to.”

In Montgomery v Lanarkshire Health Board (Footnote: ⁷), where the facts of the case, albeit involving the question of caesarean section/vaginal delivery, were very different Lord Kerr and Lord Reed said:

“87.

…An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it….

89

… the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.

90

Secondly, the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

……..

In Chester v Afshar the Defendant neurosurgeon advised the Claimant to undergo a surgical procedure on her spine which carried a small risk that the Claimant would develop cauda equina syndrome. The Claimant reluctantly agreed and the procedure was carried out. She subsequently developed cauda equina syndrome and sued the Defendant in negligence. The judge found that the Defendant had negligently failed to warn the Claimant of the risk of developing the syndrome, that had she been aware of the risk she would have sought advice on alternatives to surgery and the operation would not have taken place when it did. The Claimant could not say that she would not have had the procedure on a subsequent occasion. The claim succeeded by a majority (Lords Steyn, Hope and Walker), the dissenting minority being Lords Bingham and Hoffman.

Lord Steyn pointed out at [19] that: “…it is a distinctive feature of the present case that but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned.”

Lord Hope said:

“81 I would accept that a solution to this problem which is in Miss Chester’s favour cannot be based on conventional causation principles……the risk of which she should have been warned was not created by the failure to warn. It was already there, as an inevitable risk of the operative procedure itself however skilfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what Mr Afshar failed to say about it. ….

82 Nor does it seem to me that an appeal to common sense alone will provide a satisfactory answer to the problem…….

86

I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated
 on……

87

To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable.”

When reviewing the Claimant’s evidence, I will restrict myself as far as possible to facts essential to the disputes I have to determine. I am obviously fully aware of the hurt and distress which Mr Keh has suffered and which are clear from his testimony.

Mr and Mrs Keh were Jehovah’s Witnesses. They married in September 2007. They had attempted to conceive a child from 2010 onwards and tried IVF where they had two unsuccessful cycles. Mr Keh says that his wife’s desire to have a child was almost an obsession, hence her following the IVF instructions religiously. However, by the end of 2012 they were resigned to the fact that parenthood was perhaps something which they would never experience. Then in January 2013 Mrs Keh became pregnant. This was news of great joy to the Kehs.

The Defendant was responsible for Mrs Keh’s pre-natal care as well as for her labour and delivery of Mawusi. In cross examination Mr Keh said he attended almost all antenatal appointments. He did not recall any discussions about the type of delivery or the risks effecting Mrs Keh’s pregnancy. He was asked about three specific appointments:

Mrs Keh was admitted into the care of the antenatal ward on 12^th September 2013. She was sent home the next day. She was not quite ready to deliver. It is clear from the notes and from the evidence (see later) that Mrs Keh saw Miss Ray on 12^th September 2013. Mr Keh did not recall seeing Miss Ray until after the caesarean section on 18^th September. He thought that Mrs Keh told him that the baby was small. He was not aware that Miss Ray had booked Mrs Keh in for IOL on 23^rd September. He said his wife did not discuss this with him.

Mr Keh’s evidence is that they returned to hospital on 16^th September 2013. His wife was examined and was told that it would be best to induce her as there was some concern that the baby was not growing anymore. Before they could induce her, they wanted to control her high blood pressure. He says that matters did not progress as quickly as they would have hoped after the induction. He remembers doctors and nurses coming in and out of the ward examining his wife and talking to them. He says he listened carefully to what was being said, not just because he felt he should be informed but also because his wife would often ask for his views and advice on matters. From his wife’s admission into hospital until Mawusi was born, Mr Keh slept and woke up at the hospital. He was constantly by his wife’s side. He was there from when she was induced.

In oral evidence Mr Keh said he was not aware that his wife had seen Mr Dorman on 16^th September 2013. His wife did not tell him anything about IOL rather than caesarean section. In re-examination Mr Keh said he remembered going with her into the hospital on 16^th September. He said he always went with her. He stayed with his wife in the hospital, albeit he did not recall meeting a doctor that day until after he reread his witness statement. The notes and Doctor Ravikumar’s evidence show that she consulted with Mrs Keh at 16:05 on 16^th September. Mr Keh said he did not recall this either.

Mr Keh said that things stayed much the same until the early hours of 18^th September 2013 when there was some concern over Mawusi’s heart rate and the decision was made to send his wife to theatre for an emergency C-section. At no point prior to then does he recall anybody talking to them about having an earlier elective C-section. He was in theatre and observed the birth. He said the mood was in theatre was relaxed and jovial. When the consultant delivered Mawusi he held him up and said, “welcome to the world”.

Mr Keh was questioned closely by Mr McCullough QC. In his statement at paragraph 12, Mr Keh had said “I was worried about blood loss but the way the consultant did the C-section resulted in minimal blood loss which allayed my initial fears.” In summary Mr Keh said:

Mr Keh said that there was no reason why, if his wife had been told that it was more likely than not the induction would fail and she would need an emergency C-section, that she would not have opted to have an earlier elective C-section.

After the birth Mrs Keh was sent back to the maternity ward to recover. It was thought that she would leave hospital by 21^st September 2013. However, a few days later they learnt that she had an MSSA infection. She remained in hospital, although Mr Keh remembers being told that it looked as though she would be able to come home on 5^th October 2013. During the period from the birth until this date, Mr Keh visited his wife almost every day after work, remaining from about 6 p.m. until about 8 p.m.

Looking back on matters Mr Keh says that he was never told how serious his wife’s condition was prior to her admission to the ICU. All he was ever told was that she had an infection, it was normal and she would get better. To Mr Keh his wife had seemed well for the previous few days, though he was concerned that she was secluded and he had to wash his hands whenever he went into her room. She was able to walk to the toilet in her room.

On 5^th October 2013 Mr Keh arrived at the Defendant hospital. He was looking forward to his wife and baby coming home. However, he was told that his wife was not well enough to be discharged. Her mood was better that day, Mr Keh helped to feed the baby and they chatted away. During his visit he met a doctor who told him that Mrs Keh would not be returning home because they needed to keep her a few more days. No indication was given of the severity of her illness. All the signs were to the effect that it was under control. Mr Keh remained until about 10 p.m. before

I shall not repeat the distressing events of the following few days since they are not material to the issues I have to decide.

Mr Keh also said:

Mr Keh was a decent, honest man doing his very best to recall what did or did not happen in circumstances where, although there were some ante-natal concerns, these were not of major significance. The birth went well. It was the subsequent arrival of infection that caused the serious problems.

One of the matters of which the court must be aware is that the language of risk factors used in medical literature and in court may convey alarm to a layperson. In the clinical setting, they are likely to be transmitted in a way that does not inspire fear/worry, unless the risks are such that this is unavoidable. Mrs Keh was not in this category ante-natally.

Some indicators of the unsurprising fallibility of Mr Keh’s memory (Footnote: ⁹) are:

Therefore, Mr Keh’s recollection of what took place antenatally is, I find, patchy.

Mr Dorman has been a consultant obstetrician and gynaecologist at the Defendant hospital since October 2000. He does not recall Mrs Keh’s case and therefore relies on the medical records and what he describes as his “invariable clinical practice”.

From the notes, Mr Dorman said in his witness statement:

In his witness statement Mr Dorman said he could not remember whether he examined Mrs Keh’s cervix before recommending an induction of labour. It would not necessarily have been his practice to do so. His clinical decision for recommending induction of labour was based on a number of factors:

In relation to the suggestion that Mrs Keh ought to have been offered an elective caesarean section and that there was a failure to warn her that she was at a high risk of an emergency caesarean section, and that the risk of infection is greater than an emergency caesarean section than in an elective caesarean section. (Footnote: ¹⁰) Mr Dorman commented in his witness statement as follows:

Mr Dorman said that it is normal practice to reassure patients that the resulting caesarean section (whilst being emergency rather than elective) is still carried out calmly, and with all the same precautions as would be the case with an elective caesarean section; therefore, that the risks are very similar. Precautions include prophylactic antibiotics and prophylaxis to prevent deep vein thrombosis.

Mr Dorman said that his experience was that, in the light of this discussion, most patients in the situation of Mrs Keh opt for induction of labour. The minority who request caesarean section rather than induction of labour will generally be offered caesarean section, after further discussion of the specific risks associated with the decision.

In cross examination Mr Dorman accepted that there was always a risk of caesarean section. He was taken to the NICE clinical guidelines (Footnote: ¹¹). These show that about 25% of women have a caesarean section. He had decided the delivery needed to be expedited. This was because of hypertension, a falling off of the foetal growth and the CTG that morning. He said that a small baby may have more difficulty in long labour and this may also be indicated by the flat trace. It was in the interests of both mother and baby to expedite the delivery. The response of the foetus to labour is always something that he monitored closely. If there were concerns it was straightforward to abandon vaginal delivery and move to caesarean section. The mother’s hypertension should not militate against a vaginal delivery and managing somebody with hypertension and pre-eclampsia can be such that one proceeds to IOL.

Risk factors that were not specifically mentioned by Mr Dorman were put to him. As to these he said:

In relation to these statistics generally, Mr Dorman said there was a wide variation in England and Wales, and even in London, in respect of caesarean section rates. Factoring in ethnicity, statistics at Homeerton for caesarean section are lower than at other hospitals. He said that the national statistics are helpful but only to a degree. It is necessary to look at the performance in the Homerton unit. One of the things they did was to recommend IOL at 37 weeks. That was a way of achieving lower caesarean section rates.

There would also be overlap in the risks, so for example older women are likely to have a higher BMI and more likely to be hypertensive. The main factors would be the foetal well-being.

As to assessment of the cervix, Mr Dorman said that he would not have examined the cervix. He had made the recommendation and in doing so implicitly delegated assessment of the cervix to whoever was going to start the IOL. The starting point of assessing the cervix is only one matter. The assessment of the cervix would be prior to the administration of the Prostin gel. The two reasons for the Bishop score are to assess how easy or difficult IOL might be and to guide the dose of the Prostin. It is the progress in the ensuing hours after the Prostin which is more important. In the Homerton practice, examining the cervix is deferred until after Prostin and the decision to IOL is monitored.

Mr Dorman was asked whether in fact he had actually seen Mrs Keh. He said it was unlikely he had not seen her. Indeed, he thought he could rule that out as a possibility. Had he not done so he would have recorded in his notes that (e.g.) it was a discussion with another doctor. I accept this evidence.

As to discussion of options with patients Mr Dorman said that at 37 weeks the chance of a successful IOL was quite high. If the patient preferred that option to caesarean section then it would be worth trying IOL, with recourse to a caesarean section if needed. He was confident that it was his invariable practice to have said that there were two possibilities, either caesarean section or IOL. At Homerton they individualise care and therefore the wishes of the patient are taken into account in the decision about delivery. In the majority of cases in planning delivery he would not mention details of the decision in the notes. He would say for example that the patient was happy to have IOL (Footnote: ¹³). Accepting that Mrs Keh would have been well above the 25% risk of caesarean section, he would have weighed up these factors. He had no direct memory but he was fairly certain that Mrs Keh would have wanted vaginal delivery. His belief would have been that an attempt at vaginal delivery was the safest option if it could be achieved. He believed that it would have been a close call as to whether it should be IOL or straight to caesarean section, but if he had been asked to make the decision he would have recommended IOL. He accepted that this was not in the witness statement.

Mr Dorman said: “I think….. an audit of my recordkeeping in 100 sets of maternity notes going back however long you like, would show that my documentation is brief to the point of being shorthand. But the patients in my clinic will often be in the room for 45 minutes having a discussion about planning of mode of delivery and induction of labour or Caesarean section. And although the discussion for a patient, such as Mrs. Keh who was in the hospital with hypertension rather than in the clinic, would have been slightly different. I am absolutely certain that my discussion would have run along the lines that I have suggested.”

Finally Mr Dorman said if there had to be a subsequent caesarean section, that did not carry much greater risk then caesarean section at the outset. He believed he considered the options, and that he compared the benefits of attempting IOL with caesarean section. His discussion about delivery with every woman always starts

Mr Dorman is clearly a very experienced obstetrician. He was obviously doing his best to assist the court truthfully as to what had occurred in the conversation over 5 years ago. He was hampered by his own style of note keeping. Unsurprisingly, he had no recollection of the conversation with Mrs Keh on 16^th September. He had to rely on his usual practice which he said was invariable.

The major problem the court has with Mr Dorman’s evidence is the fact that his oral evidence contained important matters in addition to what was contained in his witness statement. Nowhere in the statement does he say that he would have given Mrs Keh the option of a caesarean section, or that he communicated to her in some way that she was at a higher risk than average of ending up with a caesarean section in any event. This was in circumstances where the specific allegations in the particulars of claim he was addressing (Footnote: ¹⁴) were that Mrs Keh ought to have been offered an elective caesarean section, and advised that she was at a high risk of an emergency section. It may be (a) that he did say something along these lines to her, or (b) his practice has evolved with time or (c) as the evidence focused his attention on the risks in much greater detail than he would have had time to consider at the clinic, he came to believe that he would have said more than he did.

Considering Mr Dorman’s evidence, I am not confident on the balance of probabilities that he did communicate to Mrs Keh that she was at a higher risk than average of ending up with a caesarean in any event, or that she was given the option of an elective caesarean section. The probabilities are that he recommended IOL and told her, as he says in his statement (Footnote: ¹⁵): “it was preferable to avoid a caesarean section because of the greater risk of blood loss associated with operative delivery”; also: “…that induction of labour may fail or that the may be concerns about her baby’s wellbeing in labour, leading to delivery by caesarean section….”

For reasons set out below, in my judgment that level of explanation was insufficient and amounted to a breach of duty.

Doctor Ravikumar was a specialist registrar in obstetrics in gynaecology and was involved in Mrs Keh’s care from 16:05 on 16^th September 2013. She referred to the records on admission at 11:03 and 13:00 set out above. She had no memory of the case. She relied on her notes and on what she usually did. She first saw Mrs Keh at 16:05 on 16^th September 2013. She noted her age, previous two miscarriages and that this was her first pregnancy beyond 24 weeks. Her blood pressure was raised and she had been given labetalol for that. She also noticed that Mrs Keh was a Jehovah’s Witness. Five risk factors were recorded namely:

In relation to the recorded risk factors:

It was further noted that Mrs Keh’s blood pressure was still high but she was clinically asymptomatic. She had protein in her urine. Doctor Ravikumar suspected pre-eclampsia and sent for a protein:creatinine ratio (PCR) to confirm/rule this out. She said in cross examination that she probably would not have considered a caesarean section at that stage. That is because, despite the risk factors, many women still have a normal delivery. Therefore, although she probably would have mentioned emergency caesarean section, she probably would not have mentioned the alternative of having a section at that stage. She could not remember if she told Mrs Keh that she was at a greater risk of caesarean section.

The management plan recorded for Mrs Keh was for induction of labour to take place in the labour ward. They confirmed that they would be happy to accept her.

Apart from reviewing the deceased on the labour ward with Miss Ray on 17^th September 2013 (see below) that was the extent of Doctor Ravikumar’s involvement.

Doctor Ravikumar was asked about other risk factors which she had not specifically noted. These were Mrs Keh’s BMI, ethnic origin and previous infertility. I do not propose to record her answers as the matters were explored with the consultants. Nothing she said on these matter changes things.

Questions were asked about cervical examination. Doctor Ravikumar agreed that presentation of the cervix is an indicator of the likelihood of the success of IOL. The more dilated the cervix, the more likely that IOL would work. She said she would not expect dilatation in a first-time mother. There are other factors namely, the softer the cervix the better, the lower down the baby is, the more favourable the outcome is likely to be. She herself did not do such an examination when she saw Mrs Keh at 16:05. In this respect, Doctor Ravikumar said she would not expect a cervical examination at that stage, even though it is an indicator of whether IOL will be successful. Doctor Ravikumar saw Mrs Keh in antenatal. The IOL was going to take place in the labour ward. The hospital protocol would be that the examination would take place on the labour ward. It would be better that the team looking after her should do that examination. Antenatal is a transition between seeing Mr Dorman and the labour ward. It probably would have been the on-call consultant in the labour ward who would have examined. At the very least she would have expected her level of doctor to be responsible for examining Mrs Keh in the labour ward. She was not able to say whether if examination carried out in the labour ward showed an unfavourable cervix, they could overturn the decision to do IOL.

Doctor Ravikumar agreed that there was always a higher risk of a caesarean section in Mrs Keh’s case. Nevertheless, she said she had seen many women with these risk factors achieving a normal delivery. Vaginal delivery was definitely a possibility here.

Doctor Ravikumar said in relation to the allegation that Mrs Keh was not offered an elective caesarean section, that the decision that the deceased would undergo induction of labour had already been made by the consultant and she, a junior registrar, saw no reason to advise differently. She said there was no clinical reason to change the agreed plan. Nevertheless, she would have discussed with Mrs Keh what an induction of labour would have involved and obtained her verbal consent for this. She said she probably would have warned Mrs Keh that there was a risk of undergoing painful vaginal examinations, enduring labour pain and requiring a caesarean section if labour failed to progress for whatever reason. If Mrs Keh had said she did not want to undergo induction of labour, Doctor Ravikumar said she would have noted this.

Doctor Ravikumar did not agree that it was reasonable to suggest a caesarean section rather than IOL. She said that some doctors might but she would not have done so at that point. That was her view then and her view now with five years more experience. She said there was no harm in a short trial of labour. It was better to go one step at a time.

Doctor Ravikumar agreed that the patient was entitled to know that she was at a greater risk of caesarean section. If she had said why not go straight to caesarean section, that would have been a reasonable decision. It would have been a reasonable option but not one that she would have recommended.

The end result of Dr Ravikumar’s evidence is that the decision to go to IOL had already been taken prior to her involvement. It was not her evidence that she had communicated to Mrs Keh that she was at a higher risk than average of ending up with a caesarean in any event, or that she was given the option of an elective caesarean section.

As stated above, Miss Ray was a locum consultant in obstetrics and gynaecology in 2013. It was she who first saw Mrs Keh on 12^th September 2013. She went into some detail about that consultation. Due to Mrs Keh’s age and pre-existing hypertension,

Miss Ray was taken through the notes in relation to cervical examination. According to the records the first cervical examination was at about 21:15/21:18 on 17^th September 2013. This was done by the registrar. There was a note of a Bishop score of two. The Bishop score is a way of scoring cervical examination. A score of two is very low. Miss Ray said the Bishop score does not necessarily relate to the length of labour. It depends upon the next score. Quite a lot of the time the Bishop score may progress significantly after Prostin has been given. It is however an indicator of how favourable the cervix is for labour.

Miss Ray next saw Mrs Keh at 09:29 on 17^th September 2013 during a ward round which also involved Doctor Ravikumar. The given reasons for the IOL were a PCR of over 100 (significant proteinuria) and IUGR. Mrs Keh was reviewed by Miss Ray and Doctor Ravikumar at 10:54. Mrs Keh’s cervix was soft and 1cm long but the cervical os was closed and artificial rupture of the membranes (ARM) would not have been appropriate at this stage. Miss Ray accepted that things had not progressed much with the cervix twelve hours after the first examination. The Bishop score would be around 4 on these findings. A further milligram of Prostin was administered and re-assessment was to be done in six hours.

At 16:46 Miss Ray and Doctor Ravikumar noted that Mrs Keh’s cervix was dilated by 1cm and ARM was performed. There had still been very little progress in relation to the cervix.

Miss Ray accepted that earlier on the 16^th September (when seen by Mr Dorman) the Bishop score would not have been higher than 2. She said that one goes to IOL in order to make an unfavourable cervix favourable; that is the purpose of Prostin.

A great deal of evidence was given in writing and orally by Professor Steer and Mr Tufnell. I will be able to deal with it in much shorter fashion than expected. However, I should set out my overall assessment of their evidence.

Although there were some questions to Mr Tufnell suggesting he should have put in more detail on some matters, in accordance with his duty as an expert under Part 35 CPR, I do not find that there was any shortcoming in that regard. His evidence was given in an objective and measured way. It is of note that he had from the outset accepted that there were some failings by the Defendant which were below the level of acceptable practice (Footnote: ¹⁹).

In closing submissions Mr McCullough QC made a number of criticisms of Professor Steer’s evidence. It is convenient to set out here a number of these before I turn to the obstetric evidence in detail:

The criticisms carry weight and must affect the court when assessing the reliability of Professor Steer’s evidence.

39.4° at 10:40 when Doctor Spiegler saw her. The notes at 14:25 said: “As observations continue to be unstable (temperature 38.7°C, respiratory rate 26, BP 115/73, pulse 96) asked SHO to review again”. Professor Steer said that the situation as so revealed and as shown in Doctor Spiegler’s note, was potentially lifethreatening. It mandated full review at a senior level including a consultant obstetrician and a senior microbiologist. Such a review would have included the possibility of genital tract sepsis including uterine endometritis.

were therefore persistent concerns about temperature, requiring continuing management by antibiotics.

infection. Professor French said that had there been an MDT meeting (or discussion between obstetrician and microbiologist) and Miss Ray had said that, he would have asked her whether she was sure, because there was nothing on repeated clinical examination or on the CT scan. Ultimately though it would be a matter for her. Doctor Rothburn had said that if on the CT scan there was no collection or necrotic tissue, as a microbiologist he would say surgery was not indicated, unless and until sepsis became severe. (Footnote: ⁵²) Professor French (in common with Doctor Weston, the Claimant’s radiologist) did not consider that there was clear evidence of necrosis. Professor French said that if there had been necrotic tissue he believes Mrs Keh would have been desperately ill; therefore it was most unlikely that there was. (Footnote: ⁵³)