Nicholson v Health and Social Services Committee [2004] JRC 096 (04 June 2004)

[2004]JRC096

royal court

(Samedi Division)

4^th June 2004

Before:

H.W.B. Page, Esq., Q.C., Commissioner and Jurats Tibbo and Clapham.

Between	Tyrone Nicholson (by his curator Carol Elizabeth Canavan [née Griffith])	Plaintiff

And	Health and Social Services Committee	Defendant

Action for damages - Plaintiff sustained serious brain-damage and consequential lifelong impairment of many of his faculties at time of his birth.

Advocate N.M. Santos Costa for the Plaintiff.

Advocate D.M. Cadin for the Defendant

judgment

(on liability)

the COMMISSIONER:

Introduction

1. Tyrone Nicholson, the Plaintiff, is a young man now 26 years old. This action concerns the circumstances in which he came to sustain serious brain-damage and consequential life-long impairment of many of his faculties at the time of his birth at what was then the Maternity Hospital in St. Helier ("the Maternity Hospital") on Tuesday 16^th August 1977. In those days this was a separate unit, a mile or so across town from the General Hospital.

2. The proceedings take the form of a claim for damages by Mr. Nicholson (or 'Tyrone' as we propose to call him, given that he was an infant at the time of the events in question), brought on his behalf by his Curator, against the Health and Social Services Committee of the States of Jersey ("the Committee"). The Committee was, at the material time, responsible for the administration of the Maternity Hospital and it is common ground that the Committee is the proper defendant to the action.

3. This stage of the trial having been concerned solely with the issue of liability, it has been unnecessary for the Court to hear detailed evidence of Tyrone's disabilities and it is sufficient for present purposes to note the following. The condition from which Tyrone suffers may be described, generically, as cerebral palsy. It manifests itself in both physical and mental disabilities. He is, we are told, only mobile with the aid of a wheel chair or by crawling on hands and knees and has major communication difficulties and significant learning problems. He is, so far as many activities are concerned, largely dependent on others: for much of his life this has, in practice, meant his mother, Mrs. Angela Nicholson with whom he lives. Despite all this, with what must have been the remarkable support, patience and encouragement of his mother, Tyrone has in recent years found part-time employment in both the St. Helier library and the hospital, has learned to sail and is a gold-medallist of the Duke of Edinburgh's Award Scheme. These introductory observations are based largely on submissions made on Tyrone's behalf by his Counsel, Advocate Santos Costa, and do not represent any finding of fact by this Court.

4. The precise clinical nature and the cause of Tyrone's condition are not in issue: the 'causation' experts are agreed that, on a balance of probabilities, everything points to Tyrone having sustained hypoxic ischaemic damage to the basal ganglia of the brain and parts of the cerebral hemispheric structures as a result of a period of profound asphyxia of 25 minutes or less at the end of his mother's labour.

5. It is also common ground that the cause of that asphyxia was, in all probability, the prolapse and subsequent compression of the umbilical cord of the unborn foetus.

6. The issue of liability is essentially a question of the speed with which it should have been possible to arrange and carry out a delivery by emergency caesarean section at the Maternity Hospital on the afternoon in question. It revolves around a critical period of some 55 minutes in the course of Mrs. Nicholson's labour on Tuesday 16^th August 1977, the start of this period being marked by diagnosis of the prolapsed cord at 3.40 pm or thereabouts and the end by Tyrone's forceps-aided delivery at or about 4.35 pm.

7. Put shortly, the primary case advanced by Mr. Santos Costa for Tyrone is that, on the basis of accepted professional standards, a properly urgent response to a cord prolapse situation should and would have resulted in Tyrone being delivered by caesarean section within 30 minutes, in other words by 4.10 pm, or at latest by 4.20 pm. Put equally shortly, the case for the Committee advanced by Advocate Cadin is that, judged by the standards and limitations inherent in the system in 1977, no criticism can properly be made of the interval of time that elapsed in practice between diagnosis of the prolapsed cord and delivery of the infant Tyrone, however tragic the consequences.

8. Two further factors complicate the central issue as we have described it above. The first is that following the discovery of the prolapsed cord, arrangements appear to have been made for a caesarean section to take place at 5.00 pm. That plan, however, was overtaken by events when it became clear that Mrs. Nicholson's labour was progressing more quickly than expected and that she would be delivered of her child vaginally well before that time arrived - as indeed happened. Dr. Don Georgelin, a GP with obstetric experience who happened to be in the Maternity Hospital at that time visiting one of his patients, was evidently called on by the mid-wives to assist and successfully carried out a forceps-assisted delivery.

9. The second factor, of major practical impact, is that the 'causation' experts are unanimous in concluding, on a balance of probabilities, that the unborn foetus had begun to sustain irreparable brain-damage by, at latest, 4.20 pm. From this it follows that for the claim to succeed in its entirety the Plaintiff must show, according to the well-established tests governing cases of this kind, (i) that there was a breach of duty on the part of the Committee in and about the arrangements for carrying out an emergency caesarean section, and (ii) that had there been no such breach Tyrone would have been born before 4.20 pm.

10. Were the Plaintiff to succeed on the first of these points but fail on the second, it is contended on behalf of Tyrone that the Committee would still be liable for part of the claim if the Court were satisfied that he should have been born by 4.27 ½ pm. The explanation for this curiously-precise time is that it represents the half-way point of the 15 minute interval between 4.20 and 4.35 pm. The 'causation' experts are agreed that had Tyrone been born after 4.20 pm but before that mid-point he would still have suffered some brain-damage, though not to the same extent as occurred in practice. Splitting things up in this way is recognised by the experts to be an imperfect exercise but represents, they say, the best that they can do ("They [Dr. Wilson and Dr. Rosenbloom] agree that they are not able to divide the damaging time period into smaller aliquots when attempting to allocate proportions of brain damage or consequent functional impairment that Tyrone has suffered": see the agreed minute of telephone conversation on 7^th February 2004). Some further explanation of the way in which this alternative elaboration of the case for Tyrone emerged - very late in the day - is necessary.

11. As often happens in litigation, the case advanced here on behalf of Tyrone has developed and changed to some extent with the passage of time and the crystallisation of expert evidence. There have, in effect been, three phases to that development:-

(i) Up until the exchange of skeleton arguments a fortnight or so before trial, the essence of the Plaintiff's case as originally formulated in the Order of Justice dated 14^th August, 2000, was that to have planned to carry out a caesarean section at 5.00 pm was not compatible with the urgency of the situation and that a caesarean section should have been arranged and completed by 4.10 pm, 30 minutes after diagnosis of the prolapsed cord (though this was said to be without prejudice to a more general plea that there had been a failure to effect delivery by caesarean section "as a matter of urgency"): no alternative case by reference to any other specific time was made. This emphasis on a 30 minute decision-to-delivery time was evidently based on expert evidence on 'liability' contained in two reports obtained on Tyrone's behalf in late 1999: one from Dr. Philip Myerscough and the other from Professor Taylor (to which we come in detail later).

(ii) In Mr. Santos Costa's pre-trial Skeleton Argument dated 20^th February, 2004, the case remained substantially the same as before, but with the substitution of 4.20 pm for 4.10 pm as the end-point of the window of opportunity for Tyrone to have been born unharmed. The motivation for this change was, quite plainly, that the parties' respective 'causation' experts, Dr. Brian Kendall and Dr. Lewis Rosenbloom for Tyrone and Dr. John Wilson for the Committee, had by then (in fact, some 11 months earlier in their joint report dated 31^st March 2003) reached agreement that 4.20 pm was the latest time by which Tyrone would have had to have been born in order to have avoided all brain damage.

(iii) On the first day of the trial on 8^th March, 2004, Mr. Santos Costa sought leave to make an amendment to the Order of Justice the net effect of which was to introduce for the first time a specific alternative case based on a time of 4.27 ½ pm ('16.27.5 hours') as the point at which Tyrone might have been born, not entirely unharmed but with a lesser degree of damage than that actually sustained. The motivation for this further development was very recent discussions between the 'causation' experts (Dr. Rosenbloom and Dr. Wilson on this occasion) which had resulted in an agreement, contained in the agreed minute dated 8^th February, 2004, to the effect referred to in paragraph 10 above. Late though it was, this application was allowed by the Court (Commissioner Page sitting alone).

The Jersey Maternity Hospital

12. Mention has already been made of the fact that in 1977, unlike today, the Maternity Hospital was not on the same site as the General Hospital: the two were on opposite sides of St. Helier, about a mile apart. The Maternity Hospital was a non-consultant, GP unit under the day-to-day direction and management, part-time, of Dr. Donald Fullerton and Dr. Anthony Williams. It relied for the provision of specialist medical and surgical staff and pathology services on the resources of the General Hospital. In particular, it had no dedicated obstetric surgeon of its own on site but had to call, as and when required, on the services of one of the surgeons at the General Hospital, usually Mr. St. John Birt. Nor did it have a resident anaesthetist: he too, usually Dr. Donald Sayers, had to be summoned from outside (in his case from his GP surgery or elsewhere). The extent to which these circumstances would have had a bearing of the issue of speed of response is one of the main bones of contention between the parties.

13. In those days the number of births per annum at the Maternity Hospital was of the order of 800. According to the Report of the Medical Officer for Health for the year 1976, over 99% of births in the island took place there. We heard evidence that, on average, there would have been three of four deliveries by elective (planned) caesarean section per month and, perhaps, one emergency caesarean section.

The events of 16^th August 1977: the hospital notes

14. The actual course and timing of events during this critical period of 55 minutes or so, 26 years ago, is now quite incapable of being established with anything approaching certainty. With the exception of Mrs. Nicholson, no witness appears to have been found who claims to have any actual recollection of the events in question; and for reasons that we explain later, Mrs. Nicholson's evidence does not really help to advance the issue of liability one way or the other. Few contemporaneous or near-contemporaneous records that might bear on the matter appear to have survived. Although such records do include two sets of hospital notes purporting to record events during the critical period between 3.40 and 4.35 pm they are not as detailed as one would wish for forensic purposes and it has not been possible, we are informed, to establish who wrote them. Unlike some reported cases in which similar events have been at issue, there is no tachographical trace in the present case to assist the Court with the progressive condition of the foetus and the timing of events.

15. The two sets of hospital notes are very similar though not identical in content. So far as relevant to the present inquiry they also appear to be written in the same hand. But whereas the first set headed 'Delivery Record' (at pages 43 and 44 of Bundle 4) end with the delivery of Tyrone, the second set, headed 'Jersey Maternity Hospital - Doctor' and lower down 'Nursing Report' (at pages 47 and 48, though the whole document continues for several further pages) continues to record events beyond that point: they presumably served different purposes. Whether either or both was compiled contemporaneously with the events that they record or shortly thereafter is, however, uncertain. Changes of ink-colour from blue to red and back to blue, and also certain details of layout, though not of handwriting, suggest that the Delivery Record may possibly have been written up substantially contemporaneously; on the other hand it may be that the fact that the passage recording events immediately leading up to the diagnosis of the prolapsed cord appears in red ink (as it also does in the 'Nursing Report') is no more than a means, after the event, of highlighting the importance of this particular incident.

16. With these observations in mind, the course of events recorded by these two sets of notes appears to be as follows: -

(i) Mrs. Nicholson, having been examined by Dr. Williams earlier in the day, was admitted to the hospital at or about 3.00 pm on 16^th August 1977 with a view to her labour being induced the following day.

(ii) Thereafter, before 3.35 pm but otherwise at times unspecified: the heart rate of the foetus was recorded as 124 beats per minute ('FHHR 124' in the Nursing Record - which is within the range of normality); the midwife conducted a vaginal examination which revealed that the cervix was 4 to 5 centimetres dilated and the fore waters were bulging; and the foetal heart rate was again noted as normal ('FHHR' without more in both sets of notes).

(iii) At or about 3.35 pm the fore waters were ruptured, 'meconium stained liquor' was observed, and what was thought possibly to be a hand was felt by the side of the infant's head ('? Hand felt by side of head': see the Delivery Record).

(iv) At or about 3.40 pm a 'Loop of cord' was felt and, more or less simultaneously or shortly thereafter, the foetal heart rate was observed to have fallen to 80 beats per minute (both sets of notes).

(v) Mrs. Nicholson was then moved into the 'Knee to chest position'.

(vi) Dr. Williams was 'informed' or 'notified' (the notes use different words).

(vii) 'Arrangements [were] made for emergency caesarean section at 5 pm' (per the Delivery Record); 'Arrangements for c.s. [were] made' (per the Nursing Report).

(viii) The paediatrician was notified.

(ix) A sample of Mrs. Nicholson's blood was taken 'for emergency X matching' (the Delivery Notes) / 'for X matching' (the Nursing Report).

(x) Oxygen was given to Mrs. Nicholson.

(xi) A FHHR of 80 was again noted.

(xii) The cervix was noted to be soft and dilating quickly.

(xiii) At 4.30 pm the cervix was noted to be 'Fully dilated'.

(xiv) At or about 4.30 pm, or perhaps 4.35 pm, 'Neville Barnes forceps [were] applied to facilitate delivery of a live male infant; and at or about 4.35 pm, or perhaps 4.40 pm the 'Placenta & membranes [were] delivered complete by C.C.T. [controlled cord traction]'. The two sets of notes differ as to the timing of the precise moment of birth, but the case was conducted almost entirely on the basis that the point in time of Tyrone's birth was at or about 4.35 pm.

17. The entry in the notes reading 'Knee to chest position' (step (v) above) is a reference to a standard practice in cases of cord prolapse, in which the mother is turned onto her knees with her pelvis elevated and her chest flat, as far as possible, on the table and the mid-wife exerts pressure by hand, via the vagina, on the head of the foetus: the purpose being to relieve the pressure of the descending foetus on the cervix and reduce constriction of the umbilical cord.

18. There are two observations to be made about the timings recorded in these notes: First, in both sets of notes all times appear to be recorded to the nearest five-minutes on the clock. Secondly, over the course of the critical 55 minute period with which we are concerned, only three specific times are recorded: 3.40 pm, 4.30 pm and 4.35 pm: thus none of the events (v) to (xiii) that we have listed above is shown with any time against it.

19. The only other document from Mrs. Nicholson's medical notes which was given any prominence in the course of the trial was an undated letter from the Maternity Hospital, signed by 'S Gregory' and addressed to Dr. Le Sueur, Mrs. Nicholson's GP, informing him of her delivery on 16^th August 1977 and discharge on 22^nd August. At the foot of the letter, there are various manuscript notes, including the following: 'Baby - Prolapsed cord F/D [forceps delivery] after digital dilatation.' The reference to 'digital dilation' was evidently thought at one stage by those representing Tyrone to have some significance, but it became clear by the end of the trial - as Mr. Santos Costa accepted - that nothing turned on the point. For the record, however, we should perhaps make it clear that even if the forceps delivery was in fact assisted by some degree of digital dilatation of the cervix (as to which Dr. Georgelin had no recollection), there is no evidence that it had any bearing on the timing of Tyrone's birth.

The witnesses of fact

20. A word of explanation is necessary as to the sequence in which the evidence of witnesses was given at the trial. The original intention had been for all witnesses of fact to be called first and for all expert evidence to follow. But some weeks before the trial, which had been set down to start on 8^th March 2004, it emerged that, as a result of a misunderstanding somewhere along the line, Dr. Williams would be abroad at that time. Directions were, therefore, given for the trial to proceed as planned, for it to be adjourned once all the evidence other than that of Dr. Williams had been completed, and for Dr. Williams's evidence to be heard at a resumed hearing on 30^th and if necessary 31^st March 2004. Unsatisfactory though this was, it was preferable to an adjournment of the trial as a whole or attempting to re-programme the hearing of the experts for some point after Dr. Williams had given evidence.

21. However, shortly before the start of the adjourned hearing on 30^th March 2004 Mr. Santos Costa sought belated leave to call Dr. Sayers as a witness, notwithstanding that by that stage he had closed his case on behalf of Tyrone. The application, which was granted, was based on two developments: first, a suggestion put to Professor Taylor during cross-examination by Mr. Cadin to the effect that the only reasonable explanation for the caesarean section being arranged for 5.00 pm was that the time was dictated by the availability of the anaesthetist; and secondly the belated discovery by those representing Tyrone of the existence of an entry in Dr. Sayer's diary for 16^th August 1977 that appeared potentially relevant (a document, it seems, of which those representing the Defendant hospital were also previously unaware).

22. Only two witnesses of fact as to the events of 16^th August 1977 were called on behalf of the Plaintiff: Mrs. Nicholson and Dr. Sayers. On behalf of the Defendant evidence was given in person by Dr. Georgelin and Dr. Williams, and in the form of affidavits by Mr. Birt and Dr. Fullerton. Affidavit evidence by Mr. Colin Powderhill, a retired police officer, concerning the time required to travel between the General Hospital and the Maternity Hospital was also read to the Court by Mr. Santos Costa. There appeared to be some uncertainty as to whose witness he was intended to be; but, in the event, his evidence was admitted on a consensual basis without any application by either side to cross-examine him. We deal with the evidence of these witnesses in the order in which it was adduced at trial.

23. Mrs. Nicholson: If we say that there was little in Mrs. Nicholson's evidence that really helped with the resolution of the central issue in the case, we intend no disrespect. It was right that she should have had the opportunity to give the Court the benefit of hearing anything and everything that she thought that she could recall about the events of that day, and this she did with dignity and restraint. But the fact of the matter is that it quickly became plain that her recollection of what happened, while no doubt perfectly accurate in some respects, was also likely, in others, to be confused: a hardly surprising state of affairs given the circumstances, including the fact that for part of the time she was, as she herself volunteered, under the effects of medication. The two points to which particular attention appeared to be attached in her evidence were (i) that, as she recalled, Dr. Williams had been present in the room immediately before Tyrone was delivered; and (ii) that she believed that she had overheard two people, one of them Dr. Williams, saying 'she will just have to get on with it' or something of that kind. But both Dr. Georgelin and Dr. Williams were adamant in their evidence that if Dr. Williams had been there the delivery would have been performed by him and not by Dr. Georgelin, and this must surely be right. It may be that he arrived very shortly afterwards or even in the very final moments of the delivery; but we are entirely satisfied that he was not there earlier and he cannot have been party to any statement of the kind that Mrs. Nicholson recalls. In any event, by the end of the trial any significance that had originally been thought to attach to these two points had evaporated.

24. Dr. Georgelin had little recollection of the occasion of Tyrone's delivery independent of what he was able to read in the hospital notes and in a brief entry in his own diary reading 'Forceps delivery on clinic patient Mrs. Nicholson for prolapsed cord'. His vague recollection was that he happened, by chance, to be visiting a patient of his own at the time and agreed in the circumstances to help out on a voluntary basis. He had no recollection of having assisted the delivery by digital dilatation of the cervix.

25. Mr. Powderhill's evidence was based in part on personal observation and experience of St. Helier and traffic conditions over the years and in part on a review of various records and publications of potential relevance. On 5^th February 2004 he signed a statement on behalf of the Plaintiff; and on 17^th February 2004 swore an affidavit on behalf of the Defendant revising to some extent his earlier conclusions. The nub of his evidence, however, was that in 1977 it would have taken approximately 15 minutes on foot at a brisk walk and 20 minutes by car, door to door, to get from the General Hospital to the Maternity Hospital.

26. Mr. Birt's evidence was given solely by way of an affidavit sworn by him on 23^rd June 2003 together with an exhibited letter dated 5^th May 1996. It appears to have been proposed by the Defendant and accepted by the Plaintiff that, as result of infirmity and absence of any recollection of the occasion in question, there was little point in requiring him to appear in person. Mr. Birt is now in his 88^th year. His career at the Jersey General Hospital spanned a period of thirty years from 1951 to his retirement in 1981. His position in 1977 and at retirement was that of Consultant General Surgeon. In his affidavit he confirmed that he has 'absolutely no recollection of the occasion', his earlier comments in his letter of 5^th May 1996 having been based entirely on the hospital notes to which reference has already been made. He added: 'I seem merely to have been alerted to the need to perform a Caesarean at 5.00 pm and then, presumably, stood down when this was no longer necessary.'

27. Mr. Birt's 5^th May 1996 letter appeared to have been prompted by a letter from lawyers for the Plaintiff (which was not in evidence) containing an allegation that he was booked for a caesarean section but 'for some reason did not turn up'. His response to this charge was as follows:

'The reason for my not turning up is clear. I was not due until 5 p.m., by which time the baby had been born. I would normally have got there about 10 minutes before at 4.50 p.m. I obviously was notified that my services were not required.

I have checked with Evening Post [sic] and the 16^th August 1977 was a Tuesday and I would have been at the Hospital all day - doing rounds in the morning and out-patients in the afternoon.

The situation at the Maternity Hospital in 1977 was very different from today when the whole of the obstetric department is situated in the General Hospital.

An emergency Caesarean operation at the Maternity Hospital took much longer to organise. As there were no Resident Staff it was necessary to make contact and arrange a suitable time with (1) Surgeon, (2) Anaesthetist, (3) Paediatrician, (4) Organise the theatre and at times send for additional theatre staff, (5) Blood for cross matching had to be taken, transported across town, cross matched and then transported back to the Maternity Hospital.

Mrs. Nicholson's vaginal delivery was carried [out] efficiently and without delay. It would have been necessary for an earlier Caesarean delivery to have been arranged and started in under 50 minutes, in view of the arrangements above that had to be made it was seldom, if ever, possible to do this at the Maternity Hospital [sic].

In 1977 discussions were already taking place about the future of the Obstetric Department, one of the main reasons for its removal to the General Hospital was the availability there of resident medical obstetric staff, laboratory, x-ray and paediatric facilities. But nearly 20 years ago the situation at the Maternity Hospital was very different.'

28. Dr. Fullerton, like Mr. Birt and for similar reasons, did not give evidence in person but by way of an affidavit sworn on 27^th February 2004 which exhibited a statement dated 26^th February 2003 and a set of notes compiled by Dr. Fullerton in or about September 1996. In 1977 he was one of two GP Obstetricians (the other being Dr. Williams) holding part-time appointments at the Maternity Hospital while continuing, at the same time to practise as a General Practitioner. In 1980 he left General Practice to become a Consultant Obstetrician at the General Hospital where he remained until his retirement in 1990. He was elected a Fellow of the Royal College of Obstetricians and Gynaecologists in 1989. The substance of his evidence is to be found in the following passages from his September 1996 notes:-

'It will be seen that 55 minutes elapsed between the discovery of a prolapsed cord and delivery of the baby.

At first sight this may appear to be an undue delay, but the special circumstances of the Maternity Hospital must be understood.

Firstly there were no resident medical staff in 1977, the obstetric input being by two part time G.P. specialists. A large percentage of the patients were looked after by their own G.P.'s. Deliveries by Caesarean section were undertaken solely by Mr. St J. Birt and other members of the surgical consultant staff at the General Hospital.

Secondly the geographical separation of the Jersey Maternity Hospital and the Jersey General Hospital created its own difficulties and delays. The paediatricians for example had to make their way across the town which in heavy traffic could easily take twenty minutes. Likewise blood taken for emergency cross matching had to make the journey there and back again. Due to the above problems I don't recall any urgent Caesarean sections taking place in under one hour.'

29. Dr. Sayers gave evidence in person. He is now retired from practice but at the time in question combined General Practice from his consulting rooms in Midvale Road, St. Helier with part-time appointments as an anaesthetist at the General Hospital, at the Maternity Hospital and at certain nursing homes and dental practices in the Island. He had been a Fellow of the Faculty of Anaesthetists of the Royal College of Surgeons since 1954. In the case of the Maternity Hospital he was in charge of anaesthetics and was the person on whom the hospital would first call when an anaesthetist was required. He produced an appointments diary maintained by him for 1977 in which the page for Tuesday 16^th August had been roughly ruled off horizontally into three sections representing the morning, the afternoon and the evening, and in which the morning section contained some nine or ten entries, the afternoon just two entries, and the evening three entries including one that appeared to read '5 15 Caesr '. His normal routine was to reserve the morning for anaesthetic appointments at one or other of the nursing homes or dental practices and for visiting patients, and to see patients at his consulting rooms in the afternoon between 2.00 pm and 3.30 or 4.00 pm before returning home. The fact that his appointments diary for 16^th August 1977 shows only two entries in the afternoon did not necessarily reflect the number of patients seen as it was common in those days for people to call at his surgery without prior appointment. He had no recollection whatever of the occasion with which we are concerned and could offer no explanation for the time of 5.15 pm against the reference to a caesarean section. He was confident that at the material time he would have been contactable either at his consulting rooms or at his home.

30. As to timing, Dr. Sayers estimated that both his consulting rooms and his home were of the order of half a mile to a mile from the Maternity Hospital and that it would have taken about 5 minutes by car to get there assuming that there were no traffic problems; that it would have taken a minimum of 20 minutes, in an emergency, from the point of walking through the hospital door to having the patient fully anaesthetised and ready for the surgeon's incision; and that in a dire emergency it would have taken Mr. Birt 'probably 5 minutes' to complete the operation and deliver the child. Beyond this, he was not asked and offered no view on the evidence of Mr. Birt, Dr. Fullerton and Dr. Williams concerning their experience as to the total time it generally took to organise a caesarean section in 1977. And in cross-examination by Mr. Cadin he appeared to accept that he was in no position to offer any evidence as to what time might have elapsed in any given case between diagnosis of the need for a caesarean section and his receiving a telephone call.

31. Dr. Williams (now The Revd Dr. Williams) gave evidence in person, though in part by reference to a written statement made in March 1977. He is a member of the Royal College of Surgeons, a Licentiate of the Royal College of Physicians, a Diplomate of the Royal College of Obstetricians and Gynaecologists. His first call of the day, when on duty, would normally have been to the Maternity Hospital, after which he would carry on with his general practice activities. He too could not remember anything about Mrs. Nicholson's labour and Tyrone's birth. Although his name was one of four appearing in the relevant entry in the formal Births Register (together with those of Dr. Georgelin, Mrs. Tranter and Sister Gregory), he was in no doubt that it would have been he, not Dr. Georgelin, who would have performed the delivery if he had been there, and he could only assume that he had arrived very shortly after the birth and had been mentioned in the register because Mrs. Nicholson was his patient at the Maternity Hospital.

32. The normal procedure in the event of an emergency caesarean section, Dr. Williams explained, would have been either for the mid-wife to telephone him and for him to make the necessary arrangements or, on occasion, for the mid-wife to telephone the surgeon and anaesthetist direct. Mobile telephones did not exist then and the obstetric doctors did not have 'bleepers' as far as he could recall. The typical chain of communication would have involved (i) a call from the labour ward to Dr. Williams's surgery (where, as far as Dr. Williams could remember, there was in those days, only one outside line and perhaps four or five practitioners); (ii) a call by Dr. Williams to the General Hospital switchboard, whose responsibility it would have been to know Mr. Birt's whereabouts and those of the duty anaesthetist; (iii) once connected to Mr. Birt (who, it seems, was likely to have been conducting his out-patient clinic on Tuesday 16^th August 1977), Dr. Williams would have agreed the necessary arrangements, the time being set by the surgeon; (iv) Dr. Williams would then telephone the anaesthetist and inform him of the situation; and (v) finally the mid-wife would have been notified of the result of these discussions. In the meantime the staff at the Maternity Hospital would be moving the patient to the anaesthetics room, taking a blood-sample for cross-matching at the pathology department in the General Hospital, and making the necessary preparations in the operating theatre.

33. It was Dr. Williams's evidence that in 1977, depending on the time of day, it would normally have taken 'at least one hour from deciding to carry out a caesarean section to the time of the operation.....longer if there were any problems, for example traffic delays' (as he put it in his written statement): a total time of one hour and twenty minutes from recognition of an emergency to delivery was 'not unusual at the Maternity Hospital in 1977'; 'Well, in those days, if we could get a Caesar going in under an hour, in about an hour, that would have been good going' (as he put it in examination-in-chief by Mr. Cadin, explaining that he was speaking of the time from when he was informed of the need for a caesarean section to be performed); 'I can't remember any occasion when it was done in less than an hour' (in answer to Mr. Santos Costa, in cross-examination); 'But that was the way the system was and the system didn't allow any change in the system, as I have described it to you at that time' (in answer to the Court). A diagnosis-to-delivery time of 50 minutes or thereabouts, would, in his view, have been 'a very good time... a top-class time' in 1977. The determining factor in this sort of timescale was, he said, getting the surgeon and the anaesthetist together.

34. In cross-examination, Mr. Santos Costa suggested to Dr. Williams that his experience of and comments on such timings might be based largely on the performance of emergency caesarean sections for conditions less dramatically urgent than a cord prolapse. But while Dr. Williams agreed that cord prolapses were uncommon, he would not accept any such gradation of speed of response:

'Q. But none of those [the occasions of emergency caesarean sections of which Dr. Williams spoke] were cord prolapses, were they? A. I can't remember. It is highly unlikely there were many cord prolapses.

Q. So a cord prolapse, by definition, would be different from any ordinary emergency caesarean section that you recall? A. Well, an emergency is an emergency.

Q. But this, as you put it yourself, is the very highest emergency. A. it is an urgent situation.

Q. And it is fair to say, isn't it, Dr. Williams, that logic dictates that the more urgent the situation, the quicker it is done? A. If that is possible.'

But apart from this exchange, Dr. Williams was not challenged as to his recollection of what was normally feasible in 1977. Nor was it suggested to him in cross-examination, that he had failed, or might have failed, in some way to make appropriate arrangements for a caesarean section to take place at the earliest possible opportunity.

35. Before going further it is important to note that, whatever may have been hinted at in the course of earlier stages of the proceedings, the final case has been solely about the speed with which it should have been possible to carry out a caesarean section once the need for it had been established. It is not suggested that the mid-wife's diagnosis was anything other than promptly and correctly made, or that the nursing treatment of Mrs. Nicholson during her labour was anything other than exemplary, or that Dr. Georgelin's forceps delivery of Tyrone was performed in anything other than a swift and skilful manner. Moreover, Mr. Santos Costa rightly disclaimed any suggestion that Mr. Birt personally might have failed to respond with a degree of urgency appropriate to the circumstances: had he intended to do otherwise he would have been bound to seek leave to have Mr. Birt's evidence taken in some way that would have afforded the opportunity to put any such suggestion to Mr. Birt. And there was no suggestion that Dr. Sayers had been guilty of any professional shortcoming.

36. Nor did Mr. Santos Costa's case as finally presented involve any attack on the general system of obstetric-service provision in Jersey in 1977. It would be hard to mount such a case without getting into controversial and difficult areas of resourcing priorities and political debate and, quite rightly, no sustained attempt to do so was made - although there were times when it seemed as if the Plaintiff's liability experts were veering in that direction. Mr. Santos Costa's primary case, essentially, was that it should have been possible for Tyrone to have been delivered by caesarean section in a period of 30 to 40 minutes from the moment of decision - even allowing for the less-than-ideal circumstances for carrying out such emergency operations in the Maternity Hospital at that time.

The expert evidence on liability

37. Four experts of immense distinction and experience gave evidence on the issue of response time. For the Plaintiff: Dr. Philip Myerscough FRCSE, FRCPE, FRCOG, former Consultant Obstetrician and Gynaecologist at the Royal Infirmary, Edinburgh; and Professor R.W. Taylor MD, FRCOG, Professor Emeritus, Department of Obstetrics and Gynaecology, St. Thomas' Hospital, London. And for the Defendant: Mr Ian MacKenzie, FRCOG, DSc(Oxon), Reader in Obstetrics and Gynaecology, University of Oxford and Hon. Consultant in Obstetrics and Gynaecology, Oxford Radcliffe Hospital NHS Trust; and Professor Peter Dunn FRCP, FRCOG, FRCPCH, Emeritus Professor of Perinatal Medicine and Child Health, University of Bristol. All were in one capacity or another in active practice in 1977, and although each of them gave evidence at some length, there was a considerable amount of ground on which there was no issue between them.

38. Prolapse of the umbilical cord has always been and remains a serious obstetric complication. It is a rare condition, occurring perhaps once in 1,400 births. In Mrs. Nicholson's case there was nothing in her previous medical history or in the earlier stages of her pregnancy to give reason to think that she was pre-disposed to any such complication. This was her second pregnancy: her first child had been born without difficulty. The experts were agreed that, at the time of admission, Mrs. Nicholson would have been classed as a low-risk patient.

39. Coupled with serious foetal distress, of which meconium-staining of the amniotic liquor or reduced heart-rate (bradycardia) are the most common signs, a prolapsed cord is potentially fatal to the infant and represents a major emergency. A foetal heart-rate of 80, as observed in the present case, is indicative of serious bradycardia.

40. With varying but immaterial degrees of emphasis, all four experts agreed that diagnosis of such a condition could be rated on a scale of one-to ten (as Mr. Santos Costa put it) as either at or near the top end of the scale in terms of seriousness as measured by the threat to the life of the foetus, though conditions such as abruption of the uterus which involve an immediate threat to the life of the mother as well as that of the child may, not unnaturally, be regarded as constituting an even greater emergency. Dr. Williams and Dr. Sayers said much the same: indeed no witness has suggested anything else.

41. All experts were also agreed that the first thing to be done in such circumstances is to get the mother into the knee-to chest position and for the mid-wife to do her best to relieve pressure on the cord as described earlier with her gloved hand. How far such 'first-aid measures' - as they were referred to - are effective in any case may vary; but Professor Taylor was of the view in the present case that the pattern of brain damage was such that it was likely that the procedure had been successful in allowing the foetal heart rate to rise again to some extent at least.

42. In almost all such cases delivery by caesarean section as quickly as possible is called for. Although delivery by caesarean section is a procedure of some antiquity, it was only with the advent of improved anti-biotics and surgical procedures during the 1950's and early 1960's that it began to gain significant currency. Thus the 1971, 8^th Edition of Munro Kerr's Operative Obstetrics, (of which Dr. Myerscough was a joint editor) spoke of 'The much freer use of Caesarean section in recent years' having greatly reduced the risk to the foetus (p.240). And a little later in the text it continued as follows: 'I have left till last the consideration of Caesarean section - the treatment best suited for the difficult cases discussed in the previous section (cervix not fully dilated), and one which I have employed successfully on a number of occasions. Needless to say, Caesarean section must not be looked on as the easy way out of every difficulty with prolapse of the cord. But with modern technique and use of antibiotics the safety of Caesarean section - and hence its scope - has greatly increased, and it is unreasonable to withhold this method of delivery if, thereby a living child can be obtained with little risk to the mother' (pp. 243, 244).

43. At the time with which we are concerned, the published literature, while emphasing the urgency of the situation, did not talk in terms of any particular time within which the operation ought to be carried out. Myles: A Textbook for Midwives, 6^th Ed. 1968 said 'Caesarean section is performed as soon as the diagnosis is made and the foetus is alive' (p.420). The 1971 edition of Munro Kerr, dealing with prolapse where the cervix is only slightly dilated (as in the present case at 3.40 pm) spoke only of the need for a caesarean section to be performed 'without delay'. Walker, MacGillivray and MacNaughton, Combined Textbook of Obstetrics and Gynaecology, (9^th Ed. 1976) spoke of 'immediate delivery'. As much emphasis was placed on early diagnosis as on swift delivery. This was as far as the textbooks went. No articles in learned journals dealing with the subject earlier than the 1980's appear to have been found.

44. It was not until 1986, almost 9 years later, with the publication of the Canadian Consensus Conference Report entitled Indications for Caesarean Section: Final Statement of the Panel of the National Consensus Conference on Aspects of Caesarean Birth CMAJ Vol. 134, June 15, 1986 that any reference to a specific 30-minute standard appears to have achieved prominence in published material. The relevant passage in that report reads as follows:

'The panel recognized that rupture of the lower uterine segment may occasionally be catastrophic for the woman and her infant, although this event occurs much less frequently than other acute obstetric emergencies. Therefore, hospitals providing obstetric care should ensure the availability of blood, operating rooms, neonatal resuscitation, and nursing, anaesthetic and surgical personnel so that a caesarean section can be started within approximately 30 minutes for any woman in labour, including a woman undergoing a trial of labour. The panel also recognized that in a country as vast as Canada there are small hospitals without such resources, especially in remote areas. Nevertheless, by selecting and transferring women with high-risk pregnancies for management in other appropriate facilities, these small hospitals continue to provided valuable obstetric services to women in their communities.'

45. Whatever the practice may have been up until then (a matter to which we return later) it seems clear that from this time onwards, at least, a decision-to-delivery time of 30 minutes or thereabouts came to be widely accepted as the appropriate standard for delivery by caesarean section in circumstances of foetal distress. This, it seems, was in keeping with the increasing emphasis that was being placed on formalising clinical standards and auditing performance during the 1980's and 1990's.

46. The term 'crash caesarean ' as a means of describing the utmost degree of urgency and distinguishing such situations from 'ordinary' emergencies was one that came to be used with increasing frequency and emphasis by Mr. Santos Costa in the course of the trial. It was not a term that was used in the Order of Justice or in his pre-trial skeleton argument or written opening, which spoke only of 'emergency' caesarean section. And it only featured in the pre-trial expert reports at two points: once in the report of Dr. Myerscough and again in one passage of the experts' joint report in which the views of Dr. Myerscough and Professor Taylor were noted separately from those of Mr. McKenzie and Professor Dunn. How far the term as such was in general usage in 1977 is uncertain. Dr. Myerscough thought it was. But Professor Taylor made it clear that he personally always forbade its use as tending to alarm the mother: his practice was to say 'Section immediately'. Mr. McKenzie, who was an obstetric registrar at the time, and as he put it 'very much at the coal face', could not remember it being used in those days. The expression certainly only begins to appear in the published literature in the 1990's.

47. There were four main areas of divergence between the two sets of 'liability' experts: (i) as to the extent to which the 30-minute standard referred to in the Canadian Consensus Report did or did not reflect pre-existing practice that would have been current in 1977; (ii) as to whether that standard was soundly based and practicable; (iii) as to the validity of comparisons between Jersey and GP-led units in England in 1977; and (iv) as to how the performance of the Maternity Hospital in Jersey in 1977 should be judged.

48. The Canadian Consensus Report. Dr. Myerscough and Professor Taylor were both confident that the report did no more than record well-established pre-existing practice as gathered from an extensive review of published literature and from the views and experience of the many practitioners involved in the various discussions that culminated in the report. According to them a decision-to-delivery interval of 30 minutes or thereabouts had long been accepted as the appropriate standard. Mr. McKenzie, however, said that that was not his recollection of obstetric practice in those days: indeed, when years later he had tried to conduct an exercise comparing decision-to-delivery intervals at the John Radcliffe Hospital in 1996 with those in 1976, he had found that it was only rarely that the time of 'decision' was recorded in 1976, suggesting that no attempt was made in those days to monitor times in the same way as became common practice later on. Professor Dunn, likewise could not recall reference to any such specific standard being current until the mid 1980's or so.

49. The context in which the reference to a 30-minute decision-to-delivery interval appears in the Canadian Consensus Report needs to be noted. The conditions under specific discussion in that paper concerned the appropriate treatment for breech presentation, for women who had had a previous caesarean section, and for dystocia: nothing to do with cord prolapses. Nor did the report purport to record the results of any inquiry, empirical or otherwise, into decision-to-delivery intervals. The passage cited above appears to have been included as an incidental prelude to the meat of the report, appearing as it did in a section headed 'Designation of appropriate hospital facilities' which opened with the following words:

'Before answering the four questions [all of which related to one or more of the specific conditions mentioned above], the panel decided that it was necessary to make a statement about the resources required in hospitals so that the opportunity for safe labour and delivery can be offered to all women, particularly those with breech presentation or previous caesarean section'.

The report made reference to four background papers which had reviewed all relevant literature since 1960. On the face of things it seems likely that these would have been concerned primarily with the specific topics with which the report was concerned. Whether, as Dr. Myerscough believed, the literature reviewed would also have covered experience and opinions concerning decision-to-delivery intervals is impossible to determine without examination of the bibliography on which the four papers were based - an exercise that no-one had attempted for the purpose of the present case. The fact remains, however, that no reference to any specific standard or target time for decision-to-delivery appears in any of the publications in evidence before us.

50. Whether the 30-minute standard is in general sound and practicable. Dr. Myerscough and Professor Taylor were clearly of the view that it is. But the matter has not been without its critics in recent years. From the mid-1990's onwards authors of various papers in learned journals have reported results of research which have prompted questions as to the appropriateness of the standard. These have included, in particular the following:

(i) Murphy and MacKenzie, The mortality and morbidity associated with umbilical cord prolapse, BJOG Oct. 1995, Vol. 102, pp.826-830. This was primarily a study of the connection between cord prolapse and mortality and morbidity based on a review of 132 babies born at the John Radcliffe Hospital between January 1984 and December 1992. But figures compiled in the course of the study showed that, while the great majority of the 94 cases in which delivery had been by caesarean section had been accomplished in 30 minutes or less, in 3 cases the decision-to-delivery interval was between 31 and 60 minutes and in 6 cases in excess of 60 minutes. Mr. MacKenzie accepted Mr. Myerscough's point that the study made no distinction between cases of cord prolapse coupled with compression of the cord and those without compression; but the distinction, he maintained was irrelevant as the management of the patient was the same in every case.

(ii) An editorial by David James, Professor of Fetomaternal Medicine, Queen's Medical Centre, Nottingham in the 2^nd June 2001 edition of the BMJ, headed Caesarean section for fetal distress - The 30 minute yardstick is in danger of becoming a rod for our backs, cited two papers in that week's journal illustrating that the standard was hard to achieve in practice and asked whether it was actually necessary. 'For reasons which are not clear, logical or evidence based, this audit standard of 30 minutes has become the criterion by which good and bad practice is being defined both professionally and medicolegally. The implication is that caesarean section for fetal distress that takes longer than 30 minutes represents suboptimal or even negligent care. Yet the evidence that 30 minutes represents a clinically important threshold is lacking both in theory and in clinical experience'. Having reviewed the findings of a number of papers, however, the editorial concluded 'Thus a decision to delivery interval of 30 minutes is a useful audit standard, though it is difficult to achieve in practice. There is no evidence, however, that 30 minutes is a critical threshold in intrapartum hypoxia. For most cases delivery after 30 minutes is not associated with adverse foetal outcome, yet for a few cases delivery has to be achieved much faster to avoid disability or death. In practice emergency caesarean section for foetal distress should be undertaken as quickly as possible and ideally within 30 minutes - but we shouldn't consider it poor care if it takes a few minutes longer.'

(iii) A paper by Derek Tufnell, Consultant at the Bradford NHS Trust Maternity Unit, and others entitled Interval between decision and delivery by caesarean section - are current standards achievable? In the same issue of the BMJ at pp. 1330-1333 reported the results of a series of four 'audit cycles' conducted at the hospital from 1993 onwards. The fourth and last of these cycles started in May 1997 and involved a continuous audit of decision-to-delivery interval for all non-elective caesarean sections. Results were regularly posted in the delivery suite and discussed at departmental meetings, and new registrars were made aware of the programme and the need to aim for a 30-minute decision-to-delivery interval. Subsequently all emergency caesarean sections were retrospectively assessed as to the need for delivery within 30 minutes ('urgent' cases): these included cases of cord prolapse. Of 721 cases so classified as urgent, only 66% had been delivered within the target 30 minutes and 88% within 40 minutes. 4% took more than 50 minutes. All 15 cases of cord prolapse were, however, delivered within 30 minutes. Adopting a different classification of urgency (the so-called 'Lucas' classification), produced decision-to-delivery interval figures for all cases of cord prolapse, foetal bradycardia and failed instrumental delivery of 86% within 30 minutes and 97% within 40 minutes. Commenting on these and other results, the paper said: 'The audit shows that even with an emphasis on the need to deliver babies promptly in situations where there is concern about foetal wellbeing or maternal wellbeing, the standard as laid down nationally cannot be met in a considerable minority of cases.' And finally: 'Throughout the time of our audits we have reduced delays but this has not been at a statistically significant level. We still deliver only two out of three babies in the recommended time and nine out of 10 within 40 minutes. These figures should be borne in mind when criticisms are made where "excess delay" leads to a compromised infant'.

(iv) A paper by MacKenzie and Cooke of the John Radcliffe Hospital entitled What is a reasonable time from decision-to-delivery by caesarean section? Evidence from 415 deliveries, BJOG, May 2002, Vol.109, pp.498-504 explained that it was prompted by the need to establish objective evidence as the basis for clinical governance standards and by the limited evidence to support the view that a decision-to-delivery interval of no more than 30 minutes was the appropriate standard for emergency caesarean sections. The study examined all caesarean sections performed at the John Radcliffe Hospital in Oxford during 1996, classified according to four degrees of urgency: 'Crash: decision made if impending foetal death or serious maternal compromise anticipated (e.g. cord prolapse, abruption, or uterine rupture)'. 'Emergency: decision made in labour for evolving fetal distress, failing labour or maternal reasons'. 'Urgent: decision made during the 24 hours before delivery because of deteriorating fetal or maternal health before the onset of labour'. And 'Pre-empted: decision made more than 24 hours before delivery the onset of spontaneous labour or membrane rupture'. In discussing the results of this survey the paper said: 'In 1989 the median time from decision-to-delivery interval was 34 minutes and in 1996 it was 39 minutes; including the 'crash' sections with the emergency cases as in 1989 the median time was 35 minutes. It is thus clear that, even including all emergency sections, we still succeeded in delivering fewer than 50% within the 30 minute standard for such cases.' And later in the paper 'In 1996 with 34-hour obstetric and anaesthetic medical staff available in the unit working a shift system, we only succeeded in achieving delivery within 30 minutes in 39% of cases of suspected foetal distress occurring during labour.' In cross-examination by Mr. Santos Costa, Mr. MacKenzie agreed that if one looked solely at the 'crash' caesarean sections, 50% were delivered within the median point of 24 minutes and 50 % between that time and an hour.

(v) A paper by Helmy and others entitled The decision-to-delivery interval for emergency caesarean section: is 30 minutes a realistic target? BJOG May 2002, Vol. 109, pp.505-508 based on an audit of all 'emergency' caesarean sections at Gravesend and North Kent Hospital over five successive periods (for which no date is given). After the first period results had been analysed, time sheets were introduced and used to record events for all successive periods with the consequence - it seems -that considerable improvements in decision-to-delivery intervals were progressively achieved. The percentage of deliveries in under 30 minutes rose from around 50% in the first period to 71% in the final survey. Even at the end of the exercise the figures for delivery times between 31 and 40 minutes were still 17% and for deliveries between 41 and 50 minutes were 9%. The paper concluded that time sheets can improve performance; that a 'universal standard of 100% in 30 minutes is unrealistic'; and that 'a standard of 40 minutes for the decision-to-delivery interval is more realistic and can be achieved in more than 90% of emergency caesarean sections'. The paper suffers, however, from some lack of clarity as to exactly what did and what did not come into the definition of 'emergency' and how 'crash', or life-threatening situations fit into the picture disclosed in this report.

(vi) Finally, a paper by Thomas, Paranjothy and James (the author of the BMJ Editorial referred to earlier) entitled National cross sectional survey to determine whether the decision-to-delivery interval is critical in emergency caesarean section, first published on line - during the course of the trial - under a BMJ reference on 15^th March 2004, and subsequently in an abridged version in BMJ Vol. 328, 20 March 2004, pp.665-668. The study looked at 99% of all singleton births in England and Wales between 1^st May and 31^st July 2000 as reported in The National sentinel caesarean section audit report RCOG Pres, 2001 (which was not itself in evidence). Its primary purpose was to examine the relationship between delivery times and mother and baby 'outcomes', and its principal conclusion that a decision-to-delivery interval of 75 minutes was more significant in that context than the conventional 30-minute target. Its significance for present purpose, however, lies in its analysis of decision-to-delivery intervals actually achieved in practice. The study breaks down deliveries, in terms of perceived 'urgency', into four groups. The highest of these, Grade 1, is defined as 'immediate threat to the life of the woman or foetus' and includes, among others, cases of cord prolapse and also those of 'presumed foetal compromise' (a term which covered, among other conditions, those involving an 'abnormal cardiotacogram'). According to the results given in Table 1 of the paper, for Grade 1 caesarean sections, the percentage of cases in which a decision-to-delivery interval of 30 minutes or less was achieved was little more than 46%; in the 31-45 minute bracket just below 23%; and in the 45-60 minute bracket 10.7%. In 11% of the cases the decision-to-delivery interval was in excess of 75 minutes. In conclusion the authors say: 'Even though our data suggest that 75 minutes rather than 30 minutes is the clinically significant threshold, adopting 75 minutes could lead to complacency. In our opinion, the 30 minute decision-to-delivery interval should remain as the benchmark for service provision for caesarean sections of grade 1 and grade 2 urgency.'

51. It is impossible in the space of this judgment to do full justice to these learned papers, and we are well aware that there are innumerable points of detail on the statistics reported in them which may be argued as having a bearing, one way or the other, on the precise conclusions that that can properly be drawn from them - not least because there is no common definition and classification of 'emergency' caesarean sections running through them. But taken together these papers do seem to demonstrate a number of things: First, that there is a body of empirical evidence indicating a real gap between the conventional 30-minute standard for decision-to-delivery interval in cases of emergency caesarean section and what happens in practice in many cases - even 20 or more years on from the events with which we are concerned and even, sometimes, in major consultant-led hospitals. Secondly, that there is a significant body of professional opinion which, while not entirely rejecting it, has found it necessary to question, re-formulate or refine that standard. Thirdly, that the absence in the bibliographies of these various papers of any references to relevant publications much earlier than 1990 (with the exception of one 1986 paper), seems to confirm that the '30-minute standard' as such is not to be found in the professional literature of the 1970's. And fourthly, that this conventional standard is based on a largely unspoken premise that the patient and all the necessary facilities and staff are readily available under one roof. None of the papers that we have been shown consider what might reasonably be expected where this assumption does not hold good.

52. The validity of comparisons between Jersey and GP-led units in England in 1977. Mr Cadin submitted that the position at the Maternity Hospital in Jersey at the material time was comparable with that of many of the smaller, non-consultant maternity units in England in the 1970's where the patient and the operating staff and facilities were not all in the same place: Mr Mackenzie and Professor Dunn plainly thought so.

53. Dr. Myerscough, however, regarded any such comparison as unsound partly because the Jersey Maternity Hospital was, in his words, a facility 'of last resort' in the sense that there was no other obstetric facility on the Island and partly because he regarded the standard of care offered by many such units as 'unacceptable' (a point to which we return later). Professor Taylor agreed but largely on the basis that most such units were much further away from their 'base' hospital than the Jersey Maternity Hospital was from the General Hospital.

54. Although we heard evidence on this subject at some length, our conclusions can be stated quite shortly. To attempt to make comparisons between Jersey and any specific unit or units on the mainland is an exercise of uncertain value: circumstances plainly varied from place to place and we do not now begin to have sufficient information about units in England, many of which have long since been closed, to allow informed comparisons to be made with the Jersey Maternity Hospital. As a matter of generality, however, it is undoubtedly the case that there were, in the 1970's, substantial numbers of small maternity units throughout England in which, if a mother was in need of delivery by emergency caesarean section, either she would have to be transferred to the nearest hospital with facilities for such an operation or a surgeon and anaesthetist - and perhaps others - would have to go to her. Professor Dunn, in particular, spoke with authority and in some detail of the position in the South-West Region of the United Kingdom in the 1970's and 1980's.

55. How the performance of the Maternity Hospital in Jersey in 1977 should be judged. Dr. Myerscough was uncompromising in his insistence that the relevant standard applicable to the Jersey Maternity Hospital in 1977 was the 30-minute one. He accepted that the published literature current in 1977 probably did not include references to any such specific time, but he believed that when the textbooks of that time spoke of the need for a caesarean section to be performed 'immediately' or 'as quickly as possible' this meant in practice between 20 and 30 minutes, within 30 minutes at most. He was, however, unable to produce any statistical research to show what times were in fact achieved in those days. And he did not specifically address the extent to which the particular circumstances of the Jersey Maternity Hospital might reasonably justify some extension of that period. He regarded the plan to carry out a caesarean section at 5.00 pm as absurd, concluding in his original report that Mr. Birt 'was not ready to attend before 5.00 pm' and expressing the view that, if Mr. Birt was properly detained on some other duty that he could not leave, then a suitable deputy should have been available to take his place.

56. Professor Taylor was equally critical of the planned caesarean section for 5.00pm. He was a careful and impressive witness in many ways. But much of his evidence involved what appeared to be an unresolved conflict between two themes: on the one hand characterisation of any unit that was unable to meet a 30-minute deadline as 'unacceptable'; and on the other recognition that there could well be circumstances in which this target was unattainable through no fault of anyone. Thus, at one point in his evidence-in-chief, when speaking of GP units in England, he said:

'If you couldn't mount a caesarean section from decision to delivery within 30 minutes, you were not fit to be offering obstetric care to a woman who might need a caesarean section in an emergency'.

Yet he readily accepted that a time of 35 minutes would not, in general, be unreasonable and that circumstances could exist which would explain and justify a longer time still, though he would be looking for an explanation of why this should be so. He acknowledged that it was not possible to staff every unit with a dedicated team of obstetric surgeon and anaesthetist and that if the designated ones were unavoidably otherwise engaged in duties that they could not leave, such as another caesarean section, then

'you would be in trouble because your back-up almost certainly does not include a second team who can come and respond in the same way'.......'That is a resource matter and it cannot always be answered.'

At another point in his evidence he appeared to suggest that if the anaesthetist whose job it was to respond in the event of a 'crash' caesarean section being required was already engaged in giving an anaesthetic that he could leave, that would be 'wholly inadequate provision'; but, having said this, he appeared almost immediately to soften the severity of this judgment, observing rhetorically 'Equally, you come back to this. How much spare provision do you have to make? You could have a reasonably spare provision and it could be occupied.'

57. In the course of cross-examination by Mr. Cadin, Professor Taylor was taken through an exercise considering the length of time that it might take, step by step, between diagnosis of a prolapsed cord and delivery of the baby. He accepted that the various hypothetical times at each stage might not be unreasonable. But confronted, as he was on this basis, with a total interval of 54 minutes, he could only say that that was 'a long time' and that he would need to go back and examine each of the constituent elements in order to see what had happened. Whether any particular element, as proposed by Mr. Cadin, was appropriate or inappropriate would depend on the circumstances: for example, he said, '...if the telephone line is engaged, there is nothing that anyone can do about it.' And when it was put to him that this figure of 54 minutes substantially corresponded with the evidence of those best placed to know how quickly it was possible to mount an emergency caesarean section in Jersey in 1977 - Mr. Birt, Dr. Fullerton and Dr. Williams - his response was: 'Then I come back to the point that it was not an adequate facility and you would need to examine the steps that we have said are necessary and see where they fell down.'

58. The key to the apparent tension between, on the one hand, his condemnation of units that could not perform to the 30-minute standard and, on the other hand, a readiness to acknowledge that there can be circumstances in which failure to meet that target does not involve fault on anyone's part, is that in much of Professor Taylor's evidence he did not seem to distinguish between (i) what was or was not 'acceptable' in 1977 in the sense of what was ideal or desirable, and (ii) 'acceptability' in the sense of the criteria by which an alleged breach of duty to a patient is to be judged. In his evidence concerning the emergence of the formalised 30-minute decision-to-delivery interval, for example, Professor Taylor explained that, in the United Kingdom, it was born in part of pressure from within the National Health Service to establish audit standards by which performance could be measured and in part from a desire within the medical profession to establish a reasonable standard by reference to which the conduct of practitioners might be defended. The specific 30-minute standard having been established, it was then used, as Professor Taylor said, to try to get units that could not meet that standard closed: which is precisely what happened progressively in the 1980's and 1990's in the United Kingdom, it being recognised that for mothers to give birth in many of the smaller GP-led units entailed an element of risk that was increasingly coming to be seen as undesirable and, in that sense, 'unacceptable'.

59. A similar theme underlay much of Dr. Myerscough's evidence. It would be wrong, he said, to argue that the mere fact that such units existed in the United Kingdom automatically made them satisfactory. When it was put to him in cross-examination by Mr. Cadin that even today there are some community midwifery units that provide intrapartum care without the benefit of a resident obstetrician or anaesthetist on site and that reaction times in such units were, of necessity, going to be markedly slower than in centres of excellence such as the John Radcliffe Hospital in Oxford, his answer was 'They are slower than the proper standards that should obtain in any properly staffed maternity unit and that is why I deem them unsatisfactory'.

60. But to attach the label 'unacceptable' or 'unsatisfactory' to any maternity unit that cannot meet the ideal of the 30-minute target is a far cry from saying that those responsible for such units, or working in them, must be guilty of negligence or breach of duty. It may well be that for the purpose of conducting periodic audits of the performance of units up and down the country it is useful to have a single standard and that it would be impracticable to have anything else. It may also be that, as an audit standard, 30-minutes is as good a benchmark as any to take, even though there appears to be no magic in clinical terms for selecting that particular figure. But that is very different from making a 30-minute decision-to-delivery interval the watershed between competence and negligence in any and every case. No-one would suggest that the innumerable GP-led units in the United Kingdom to which reference has already been made were routinely guilty of actionable breaches of duty by permitting the mothers to give birth there: not, at least, in the case of those, like Mrs. Nicholson, for whom there was no reason to expect any complication.

61. Professor Dunn's evidence in this area seemed to put the issue in proper context, emphasising the gap between the 'ideal' and what was reasonably achievable in practice. He spoke of a life-time's experience working in the National Health Service with particular reference to, and responsibility for, trying to improve facilities and other resources and establishing formalised standards, the latter being a movement that only got under way in the 1970's:

'We've always been struggling with poor facilities, poor staffing and nothing has ever really been ideal - or very little. When I went to Bristol in 1963 - to give you an example - the Bristol Maternity Hospital, which was the consultant unit for Bristol Health District .........a consultant teaching hospital of the University of Bristol, had no anaesthetist, no resident paediatrician, and the obstetric registrar was only there during the day and on call at night. So, this was a consultant unit with totally inadequate services. This was recognised, and the planning for a new hospital was started at that time, but the new hospital did not open until 1975 - fourteen years later. That gives you an idea of the delay. People recognised that things weren't adequate, but it took time to collect the money, do the planning, and then the building. The point which may be made was that this hospital was not all that dissimilar at night-time to the situation in Jersey in 1977'

(In Jersey the Obstetric Department was moved to the same site as the General Hospital in 1987. But as with Bristol, the planning of this move had been going on for some years previously: Mr. Birt, in his evidence referred to discussions about the Department's future having been current in 1977). Professor Dunn declined to equate 'not ideal' with 'inadequate and inappropriate'.

62. He also spoke of a survey of the South West Region conducted under his direction in the late 1970's; of the existence at that time of some twenty-six GP units separated by distances of between one and fifty-seven miles from their consultant referral unit; of the 'obstetric flying squads' that served the more remote units; of delays measured in terms of hours rather than minutes in getting a mother to consultant facilities; of the inevitable 'trade-off' or 'balance' - as he put it - between the advantages of small maternity units and the risk of the occasional emergency that required more resources than such units could immediately offer; of the paucity of auditing, and - as far as he could recall - any reference in the course of the survey mentioned above to a 30-minute decision-to-delivery standard; of the gradual phasing out of GP units.

63. Both Dr. Myerscough and Professor Taylor acknowledged that the figure of 30 minutes as the target-standard was the result of largely pragmatic considerations: a reasonable estimate of how long it could take to make the necessary preparations, and in particular how long it could take to get the surgeon and the anaesthetist to the theatre and ready to operate. These, rather than any specific clinical considerations in relation to the baby, were and are the determining factors. Precisely what assumptions of fact concerning the whereabouts and availability of key staff and the means of communication went into the process by which this 30-minute standard evolved is, however, anything but clear. Professor Taylor suggested that this period would have made allowance for getting people who were not on site at the time of when the emergency arises to the theatre. But, as already observed, the tacit assumption in the published literature appears to be that everyone - the surgeon, the anaesthetist and the other staff - are readily available: there is certainly nothing to suggest that those who formulated this standard had in mind split-site circumstances closely comparable to those at the Jersey Maternity Hospital in 1977.

64. On any view it is plain that, useful as it may be for audit purposes or as an incentive, no single standard can possibly fit the widely differing circumstances of all maternity units for the purposes of judging an issue of alleged negligence. 'As quickly as possible', or 'immediately' may in practice well mean very different things in different circumstances. Professor Taylor, for his part, accepted this, acknowledging that how quickly things can be done depends on 'the facilities that are reasonable in the circumstances in which you are practising', that expectations can vary according to the facilities that are available and the situation where the emergency arises.

65. Dr. Myerscough's view was quite different. When it was put to him in cross-examination by Mr Cadin that expressions such as 'immediately' and 'without delay' as found in the text books in use in the mid-1970's must be read in the light of the facilities available at the particular institution in question he answered:

"They must be read in the light of the facilities that ought to be available in every maternity unit' (our emphasis)".

But this is to equate the ideal with the reasonably-feasible and cannot, as it seems to us, be the right approach on an issue of alleged breach of duty unless the whole system of obstetric care at the facility in question is attacked as being incapable of delivering a proper service. As observed earlier, that was not Mr. Santos Costa's case as presented at trial. He did not suggest that the Jersey Maternity Hospital was incapable of carrying out the necessary caesarean section within an acceptable time: on the contrary, it was his case that on 16^th August 1977, at least, it could and should have been completed by, at latest, 4.20 pm (alternatively by 4.27½ pm).

66. Both Mr. MacKenzie and Professor Dunn thought that to take a 30-minute decision-to-delivery interval as the relevant standard in the present case was unrealistic. They did not accept that that specific, quantified standard was one that was current in 1977. The only relevant standard was to carry out the operation as quickly as possible.

'I must say, that [a 30-minute decision-to- delivery interval] was not my recollection of obstetric practice during the 1970s, and I must remind the court that that is when I was a registrar and a senior registrar': (Mr. MacKenzie).

'All I can say is that I do not remember anybody in the '70s or 60s' talking in terms of absolute timings. It was understood if you had a prolapse of the cord that you got round to delivering the baby either vaginally or by Caesarean section as soon as possible': (Professor Dunn).

67. On the basis of their understanding of the circumstances of the Jersey Maternity Hospital in 1977, their general experience, and the evidence of those engaged in practice there at that time (Mr. Birt, Dr. Fullerton and Dr. Williams) they considered that it could well have taken anywhere in the range of an hour plus or minus 30 minutes to mount and complete the necessary caesarean section, depending on the circumstances; though in the course of his evidence in cross-examination, Mr. MacKenzie modified this interval to between an hour and an hour and-a-half - allowing for notification that cross-matching of the mother's blood had been completed.

68. It is important to recall what those working at the unit at the time said in their evidence:- that it was "seldom, if ever, possible' in those days for a Caesarean section to be arranged and started in under 50 minutes (Mr. Birt)"; that he could not recall any urgent Caesarean sections taking place 'in under an hour' (Dr. Fullerton); depending on the time of day, it normally took 'at least one hour' from deciding to carry out a caesarean section to the time of operation' - longer if there were any problems such as traffic delays (Dr. Williams); and the total time from recognition of the emergency at 3.40 pm to planned delivery at 5.00 pm in the present case 'was not unusual' at the Maternity Hospital in 1977 (Dr. Williams again).

69. The width of the possible time-range accepted by Mr. MacKenzie and Professor Dunn as not unreasonable was criticised by Dr. Myerscough and Professor Taylor, and it may well be that the point that it sought to make could have been expressed with greater felicity. But that point, as we understand it, was (i) that although they had some appreciation of the circumstances that existed in Jersey in 1977, they had no personal knowledge of many of the factors that would have had a bearing on the speed with which things could be done, let alone the particular circumstances obtaining on the 16^th August 1977, and (ii) that they had no reason to doubt the evidence of those who were engaged in obstetric practice at the Maternity Hospital at that time. On this basis, both Mr. MacKenzie and Professor Dunn were adamant that there was no reason to conclude that Tyrone could or should reasonably have been delivered any more swiftly than was in fact the case. Nor were they prepared to criticise the planning of the intended caesarean section for 5.00 pm. Both were, moreover, at pains to emphasise that their views were based on more than just a passive acceptance of what Mr. Birt, Dr. Fullerton and Dr. Williams said. Having worked in maternity units all his professional life (albeit mainly as a paediatrician, rather than a surgeon), Professor Dunn said, he had 'a fairly shrewd idea of how long it takes in these circumstances' and would have been surprised if it could be done in much under an hour; on the basis of his general experience, he would have said that 'an hour would be good going, and what I would expect': such delay was part of the 'trade-off' between the advantages of small GP-led units and the risks inevitably entailed in any geographical divorce of a maternity unit from the consultancy services required in an emergency. And Mr. MacKenzie, for his part, spoke with the benefit of his own experience of, and research into, the extent to which a 30-minute target was and was not met in all cases at the John Radcliffe Hospital in Oxford.

70. One particular factor that may have had a bearing on the decision-to-delivery time generally experienced in Jersey in 1977 is that of the cross-matching of blood from the mother (with a view to having supplies of blood in the operating theatre if necessary). Mr. Birt, Dr. Fullerton and Dr. Williams all referred in their written evidence to this as one of several things that, between them, governed the speed with which an emergency caesarean section could be carried out in 1977. The full procedure involved taking a sample of the mother's blood, sending it across town for the pathology department at the General Hospital to test and cross-match against reserve supplies and then despatching two units of blood of the same group back to the Maternity Hospital, a process that could take up to an hour. Dr. Sayers, by contrast, said that his recollection was that in an emergency such as the one under consideration here, one would not have waited for cross-matching to take place, but would have relied on the fact that there was always a pint of group O - rhesus negative in the fridge at the Maternity Hospital (that group tending to be universally acceptable) and the use of a saline infusion if necessary. In cross-examination, however, he accepted that whether or not to wait for blood to be cross-matched would have been a matter of judgment for the surgeon and the anaesthetist together, though more so for the latter than the former in his view. Dr. Williams, following Dr. Sayers into the witness-box, maintained that his recollection was that a caesarean section would not have started without the team at least knowing that a supply of cross-matched blood was on the way. In his view the decision whether or not to wait would have been the surgeon's or possibly a joint one with the anaesthetist as Dr. Sayers had suggested.

71. Dr. Myerscough and Professor Taylor both regarded it as unthinkable that one would delay the operation in circumstance such as the present while blood was cross-matched (assuming immediate availability of emergency supplies of O - rhesus negative blood and a saline drip). But Mr. MacKenzie was adamant that, while practice was different today, in the 1970's no caesarean section would have been started at the John Radcliffe hospital without at least confirmation that a supply of cross-matched blood was on the way to the theatre, even though it might not have actually arrived; that in 1976 as high a proportion as 22% of women undergoing a caesarean section at the Radcliffe required a blood transfusion; that whether or not to proceed without such cross-matching having been confirmed would be the decision of the surgeon; and that if it had been Mr. Birt's practice in 1977 to wait for such cross-matching, that would have been entirely proper. Professor Dunn was likewise of the opinion that to have waited would have been a proper precaution, though he agreed, in cross-examination, that he would defer to those more directly involved in the surgical procedures.

The Law

72. The relevant principles are well established and can be summarised quite shortly. Appropriately expressed in terms of the circumstances of the present case they are as follows:

(i) The burden is on the plaintiff to prove his case on the balance of probabilities in the ordinary way. The mere fact that the claim was only launched long after the material events does not in principle justify any departure from this rule, notwithstanding the practical, evidentiary difficulties that this may create for all concerned including the Defendant.

(ii) The relevant standard of care by which any alleged breach of duty is to be judged is that of the ordinary skilled practitioner - which in the present case embraces all those engaged in the provision of obstetric services in Jersey - in 1977.

(iii) In an area such as obstetrics a practitioner is not ordinarily to be regarded as guilty of negligence if he or she acts in accordance with practice accepted as proper by a reasonable, responsible body of medical opinion merely because there is another body of professional opinion which would take a different view: this is the classic test formulated by McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 at 586-7. As Lord Scarman emphasised in Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634,639:

'......I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law ......... For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.'

(iv) That said, where the defence to a charge of negligence entails reliance on a body of professional opinion, the court must be satisfied that such opinion has a logical basis and has reached a defensible conclusion on the matter in question: Bolitho v. City and Hackney Health Authority [1988] AC 232. It is, however, likely to be only in comparatively rare cases that a Court will feel entitled to conclude that views genuinely held by a competent expert in the relevant discipline are illogical or otherwise unreasonable.

Did the designation of 5.00 pm for the operation amount to a breach of duty?

73. Because the proposed operation was overtaken by events and for reasons that appear shortly, the question is academic. But as so much attention was paid to this point in the course of the trial, it is right that we should consider it as a separate issue.

74. The fact is, that no-one was any the wiser at the end of the trial than they were at the outset as to the reason why this particular time was set, let alone why Dr. Sayers should have entered a different time, of 5.15 pm, in his diary for that day - if indeed it related to the same event. To speculate is all that anyone can now do. There is no clue in the surviving hospital records and there is no witness who begins to have any recollection. There is nothing to indicate that anyone involved in the matter failed to perform as they should have done; and Mr. Costa (rightly) does not suggest that anyone failed to respond appropriately.

75. Mr. Costa's case on behalf of Tyrone came down to this: that, on the day and at the time in question, Mr. Birt appears not to have been occupied in surgery but to have been conducting an out-patient clinic from which - it was submitted - he should have been able to disengage himself quickly; Dr. Sayers appears to have been either in his surgery or at home and free to attend when summoned; both surgeon and anaesthetist were therefore available to attend at short notice; there is nothing in the contemporaneous written materials to suggest that there was any problem that day which held things up. In these circumstances, he submits (i) to have planned a caesarean section for 5.00 pm was wholly out of keeping with the demands of the situation, and (ii) even when a timed - allowance is made, step by step, for Mr. Birt and Dr. Sayers to get to the Maternity Hospital, prepare for surgery and conduct the operation itself, calculations show that it should have been possible to have delivered Tyrone by 4.10 pm or, at latest, before the time when irreversible brain-damage set in at about 4.20 pm (alternatively by 4.27½ pm - as previously explained).

76. Setting a specific time for the performance of an operation of the utmost urgency, let alone one an hour and twenty minutes ahead of the moment when the prolapsed cord was first diagnosed, does of course appear to be an odd - not to say callous - thing to do when viewed from the perspective that Dr. Myerscough and Professor Taylor invited the Court to adopt. But that perspective is, in our judgment, an idealised one and one by which it would be quite unfair to judge whether those responsible for the Jersey Maternity Hospital in 1977 failed, as alleged, in their duty of care to Mrs. Nicholson. Mr. McKenzie and Professor Dunn plainly regarded it as unrealistic to apply a 30-minute decision-to-delivery standard to the split-site circumstances obtaining in Jersey in 1977, just as it would have been unrealistic to have applied it to many of the smaller GP-led units then in existence in the United Kingdom. They had no difficulty in understanding how an emergency caesarean section in circumstances such as those of the present case might take an hour or so to arrange or even longer depending on events. Matched against the template of what was usually possible in Jersey at that time, as recounted by those involved at the time, 5.00 pm was not so far removed as to be wholly incomprehensible or in our view to reverse the burden of proof. For reasons set out in the next section, we do not regard their views as capable of being dismissed as illogical, irrational or otherwise incapable of being treated as representing a reasonable, responsible body of medical opinion. Three further considerations also need to be borne in mind.

77. Firstly, if, as may be the case (despite Dr. Sayers recollection to the contrary), it was indeed the practice of Mr. Birt in 1977 to wait for confirmation that cross-matched blood was at least available and on its way that would be a judgment which Mr. MacKenzie would certainly not have criticised even though it might extend the time before delivery could be achieved.

78. Secondly, a degree of caution also needs to be exercised in talking about timings, actual or theoretical in the present case. As earlier noted, the timings in the hospital notes may well be approximations only (being stated, it appears to the nearest five minutes); there is nothing to show at what time Dr Williams was actually contacted; the point from which timings to delivery are traditionally measured and discussed is decision (to operate) not diagnosis, whereas the one hour and twenty minutes frequently mentioned in the present case starts with diagnosis of the prolapsed cord by the mid-wife and not with a decision by the obstetrician (Dr. Williams); and this is not a case such as Nation v. King's Healthcare Trust [2003] EWHC 22542 (QB), to which Mr. Costa invited us to have regard as illustrating the way in which English Courts have approached cases such as the present one, where the court was assisted in its consideration of precise timings by the existence of a contemporaneous tachographic trace. It is well possible that the actual delay involved, when measured from the point of decision, was in fact not as long as an hour and twenty minutes.

79. Thirdly, and importantly, although the evidence appears to indicate that Mr. Birt would have been in the General Hospital at the time and should have been available to attend at relatively short notice the truth of the matter is that we simply do not know exactly what he was doing, or how swiftly he was in a position to disengage himself and respond to the emergency; the same must also apply, it seems to us, to Dr. Sayers, despite his confident assertion that he would have been immediately available, when there is so little to go on in the way of hard evidence. If it had become clear, as a result of Dr. Williams's telephone contacts - or attempts to contact them, that either Mr. Birt or Dr. Sayers would be quite unable to start a caesarean section at the Maternity Hospital before 5.00 pm, it would have been natural to relay that message to the midwives or nurses and for them to record it. This is not, after all, a case in which there was no response at all to the emergency call (as for example in the case of Bull v. Devon Area Health Authority [1993] 4 Med. LR 117): there was a very specific response, albeit one that involved a delay well beyond what would have been ideal and significantly beyond the sort of time within which those involved in practice in Jersey in 1977 would have hoped to achieve under the most favourable conditions. Assuming, as it seems to us that we are entitled to do in the circumstances, that those involved responded in good faith as quickly as they could do, both the fixing of a specific time and the designation of 5.00 pm is understandable.

80. For these reasons, although this particular issue has exercised the Court not inconsiderably, we are unable to conclude that the plan to perform a caesarean section at 5.00pm has been shown to involve any breach of duty on the part of the Defendant Health and Social Services Committee.

Did the actual delivery of Tyrone at 4.30/4.35 pm involve any breach of duty? Could he and should he have been delivered by caesarean section any earlier?

81. In practice, subsequent events render the 5.00 pm issue, as such, academic. Tyrone having been delivered vaginally at 4.30 pm (or perhaps 4.35 pm), the effective question as regards liability becomes whether delivery within that time-frame of 50 to 55 minutes from 3.40 pm (depending on how one reads the hospital notes as to the time of birth) is to be regarded as falling short of a proper standard of care. Even that question defines only half the ambit of the relevant inquiry, given the causation experts' agreement that Tyrone would have had to have been born by 4.20 pm to escape all damage and 4.27½ pm to have escaped a substantial portion of it.

82. On this point, we find that the case for saying that there was a lack of proper care and management of mother and child has not been made out.

83. A time of 50 to 55 minutes from the moment when the midwife first diagnosed the existence of a cord prolapse at 3.40 pm or thereabouts to Tyrone's delivery by Dr. Georgelin is, on any view, within the time range that Mr. MacKenzie and Professor Dunn would regard as unexceptionable in 1977 at the Jersey Maternity Hospital. And applying the principles established in Bolam & Bolitho, it is impossible to say that the views expressed by Mr. MacKenzie and Professor Dunn on behalf of the Defendant represent anything other than those of a responsible body of medical opinion. Nor, for the following reasons, can it reasonably be said that those views are in any way illogical or irrational in the sense referred to by Lord Browne-Wilkinson in Bolitho:-

(i) Both are well-qualified to speak to the subject in hand.

(ii) Their personal recollection that a 30-minute decision-to-delivery interval was not widely recognised and applied in 1977 is consistent with the absence of any reference to it in published literature before 1985 or thereabouts.

(iii) Once the 30-minute standard is recognised for what it is - a pragmatic audit standard representing an ideal to be aimed at - and that circumstances may vary from one unit to another, it follows that what appears on the face of things to be a shortfall in performance may be perfectly explicable and justifiable in the light of the resources and other circumstances of the unit in question.

(iv) It follows that every case must be judged on its own facts and that, in every case, it must be a question of fact and degree as to how far the rule-of-thumb benchmark can safely be used as an indicator of inadequate clinical provision and what is or is not reasonably feasible in the circumstances.

(v) If at the moment when the emergency occurs the patient is in one place and the surgeon and anaesthetist are elsewhere, common sense says that, with the best will in the world, the decision-to-delivery interval is likely to be longer than it would be if everyone and everything were on the one site.

(vi) It is unreasonable to assume that clinical procedures will necessarily happen quite as speedily in a small unit such as Jersey was in 1977 as they would - or might do - in a big teaching hospital. For example, Dr. Myerscough and Professor Taylor thought that 10 minutes or so would have been sufficient for an anaesthetist to have prepared and administered the necessary anaesthetic to a mother. Dr Sayers' evidence, however, was that he would have needed a minimum of 20 minutes: but there was no suggestion that that was in any way dilatory or unprofessional.

(vii) The persons best qualified to speak to the time involved in assembling the necessary team and completing the required caesarean section in 1977 were and are those who were engaged in practice at the Jersey Maternity Hospital at that time. And the actual decision-to-delivery interval of 55 minutes in the present case, or possibly 50 minutes depending on when exactly Tyrone was delivered is broadly in line with their experience of what was reasonably achievable in 1977.

(viii) There is no basis on which the evidence of Mr. Birt, Dr. Fullerton and Dr. Williams could properly be disregarded, notwithstanding that the evidence of the former two was given by affidavit and was not tested in cross-examination. There was no real challenge to it and no evidence to counter it. To reject such evidence of what was or was not reasonably achievable 26 years ago in favour of a minute-by-minute computation of our own (whether of 40 minutes, 45 minutes or any other figure) as the precise yardstick by which obstetric performance in Jersey in 1977 ought to be judged would be quite wrong. No witness other than Mrs. Nicholson herself (the limited nature of whose evidence we have earlier discussed) claims to have any clear recollection of what actually happened on the day in question. There was nothing of substance to suggest that on that particular day it would have been possible to have mounted a caesarean section any more quickly than normal. And there is no proper basis, as far as we can see, on which one could logically and reasonably arrive at one specific time rather than another.

(ix) To reject such evidence and insist that Tyrone should have been delivered more quickly than actually happened would also appear to us to fly in the face of the difficulties that even some of the most prestigious, highly resourced obstetric institutions evidently still experience today in meeting a 30-minute target and the research to which we have referred above into the results actually attained in such units.

84. However much one might wish to be able to reach a different result, the unavoidable conclusion in our judgment is that there is no way in which it can fairly be said that Tyrone's very considerable misfortune is the result of any failure on the part of anyone or anything involved in or connected with the management of his birth on that day in August 1977. There is, in short, no likelihood that he could in fact have been delivered by caesarean section any earlier than he was in fact born by forceps delivery and no fair basis for saying that he should have been born any earlier, let alone any case for saying that he could and should have been delivered before irremediable brain damage set in at about 4.20 pm or at any other time which would have saved him from at least some measure of the disabilities that he sustained. For these reasons the claim fails.

Authorities

Myles: A Textbook for Midwives (6^th Ed'n: 1968).

Walker, MacGillivray and MacNaughton: Combined Textbook of Obstetrics and Gynaecology (9^th Ed'n: 1976)

Indications for caesarean section: final statement of the panel of the National Concensus Conference on Aspects of Caesarean Birth (CMAJ: Vol 134: 15^th June, 1986).

Murphy & MacKenzie: the Mortality and Morbidity associated with umbilical cord prolapse (BJOG: October 1995: Vol 2: pp 826-830).

Professor David James: Caesarean section for foetal distress - the 30 minute yardstick is in danger of becoming a rod for our backs (BMJ: 2^nd June, 2001).

D. Tufnell: Interval between decision and delivery by caesarean section - are current standards achievable (BMJ: 2^nd June, 2001: pp 1330-3).

MacKenzie and Cooke: What is a reasonable time from decision-to-delivery by caesarean section? Evidence from 415 deliveries (BJOG: May 2002: Vol. 109: pp 498-504.

Helmy & Ors: The decision-to-deliver interval for emergency caesarean section is 30 minutes a realistic target (BJOG: May 2002: Vol 109: pp 505-8.

Thomas, Paranjothy and James: National cross sectional survey to determine whether the decision-to-deliver interval is critical in emergency caesarean section (BMJ: 15th March, 2004: Abridged version: BMJ: Vol 328: 20^th March 2004: pp 665-9).

National sentinel caesarean section audit report (RCOG Press, 2001).

Munro Kerr's Operative Obstetrics 1971 (8^th Ed'n) pp 240, 243 and 244.

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 at 586-7.

Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634,639

Bolitho v. City and Hackney Health Authority [1988] AC 232.

Nation v. King's Healthcare Trust [2003] EWHC 22542 (QB).

Bull v. Devon Area Health Authority [1993] 4 Med. LR 117).

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	Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Nicholson v Health and Social Services Committee [2004] JRC 096 (04 June 2004) URL: http://www.bailii.org/je/cases/UR/2004/2004_096.html Cite as: [2004] JRC 96, [2004] JRC 096

Jersey Unreported Judgments