OUTER HOUSE, COURT OF SESSION

[2007] CSOH 111

A2689/02

OPINION OF LORD TURNBULL

in the cause

MRS AUDREY LOWE, AS GUARDIAN OF THE CHILD KIERAN STEPHEN MATHEW LOWE

Pursuer;

against

YORKHILL NHS TRUST

Defenders:

________________

Pursuer: Mitchell, QC; Lindsay; Balfour & Manson (for Ferguson, Dewar, Glasgow)

Defenders: Anderson QC, Scott; Central Legal Office

27 June 2007

Introduction

[1] The pursuer in this case is Mrs Audrey Lowe who brings the case as the guardian of her son, Kieran Stephen Mathew Lowe. Kieran Lowe was born at the Queen Mother's Hospital, Glasgow on 22 January 1999. Kieran was born in very poor condition and was effectively stillborn until eighteen minutes of age when there was a first cardiac output. He required cardiopulmonary resuscitation and treatment in the neonatal intensive care unit. A CT brain scan demonstrated that he had suffered a hypoxic ischaemic insult of acute origin. He subsequently developed hypoxic ischaemic encephalopathy and in due course was diagnosed as suffering from asymmetrical and dystonic athetoid quadriplegic cerebral palsy. The current action seeks damages for alleged medical negligence during the intrapartum care received by Mrs Lowe at the Queen Mother's Hospital. The parties agreed the appropriate level of damages to be awarded should there be a finding of negligence.

Mrs Lowe's Labour
[2 ] At the time of Kieran's birth Mrs Lowe was a healthy non smoker aged 27 years. She had previously given vaginal birth to a healthy child in 1992. Examinations carried out at routine antenatal visits throughout her pregnancy with Kieran appeared to demonstrate an uncomplicated pregnancy. At five in the morning on 22 January 1999 she self presented at the hospital. She was noted to be a healthy multiparous patient with an uncomplicated pregnancy at 38+3 weeks gestation. As is normal, a record of Mrs Lowe's intrapartum care was kept in the nursing notes. These were produced at proof and were the subject of much scrutiny in evidence and submissions. These notes generally proceed in a chronological order from page to page. Each page has a date and time column and a third column, occupying most of the width of the page within which members of staff make notes as to progress. Along with the Cardiotocograph (CTG) tracings, to which reference will later be made, these documents provided a framework within which the care provided to Mrs Lowe could be identified and examined. As a consequence of the availability of the nursing notes there was little in dispute as to what factually occurred during Mrs Lowe's time at the hospital, despite the passage of over seven years between Keiran's birth and the proof.

Summary of Care
[3 ] A summary of Mrs Lowe's nursing care as described in the notes can be set out as an introduction to a more detailed examination of the evidence given. An initial vaginal examination, performed on admission, showed that Mrs Lowe's cervix was mid-position, fully effaced, 2-3 cms dilated and that the membranes were closely applied to the vertex. After assessment Mrs Lowe was classified as a low risk patient and transferred to room 1 of the Tower Suite within the hospital. The Tower Suite is a midwifery lead unit providing one to one midwifery care with medical support. Low risk patients are given the option of delivering in this facility rather than the main labour suite within the hospital. Prior to her transfer to the Tower Suite, as part of the initial assessment procedure, electronic fetal monitoring was performed. This admission CTG showed a reassuring trace. As a result continuous electronic monitoring was discontinued. In terms of normal practice with a low risk patient intermittent auscultation using a sonic aid device was substituted.

[4 ] At 07.50 the management of Mrs Lowe's labour was taken over by Staff Midwife Josephine Nairn. At 08.15 the fetal heart rate was noted to be low at 82 beats per minute. Midwife Nairn then recommenced electronic fetal monitoring and continuous CTG tracing was available from this point onwards. At 08.25 a second vaginal examination was performed to assess progress. The cervix was found to be 8cms dilated with the vertex at the level of the ischial spines or at the spines minus 1 position. The fetal position was thought to be direct occipito-anterior. At the time of recording these findings Midwife Nairn also noted that the fetal heart baseline was at 145 beats per minute with good variability. She noted the presence of variable decelerations down to 90 beats per minute with quick recovery to baseline. At 08.35 the midwifery sister, Sister Tutt, noted that she had been asked to see the CTG readings. She noted the CTG as showing good variability with variable decelerations, probably due to head compression. She noted that the trace was to be observed and seen by medical staff on the ward round.

[5[ At 08.50 Midwife Nairn observed and noted a fetal bradycardia down to 84 beats per minute. In the medical notes she described this as having a slow return to baseline. By this time the daytime medical staff were on duty and she drew the fact of the bradycardia to the attention of Doctor Valero, the registrar with responsibility for patients in both the main labour suite and the Tower Suite. Dr Valero conducted a medical review, the results of which were recorded in the medical notes with the timing of 08.55. Dr Valero noted that Mrs Lowe was a para 1 lady in spontaneous labour with the cervix 8cms dilated and good uterine activity. He described the CTG trace as showing variable decelerations and the presence of a bradycardia. He also described the trace as showing good variability. He included the comment "Head compression at descent?" as his assessment of the cause of the bradycardia. Dr Valero instructed that there should be artificial rupture of the membranes and confirmation of satisfactory progress. This instruction was carried out by the Senior House Officer Dr Black.

[6 ] Dr Black noted her findings in the nursing notes with a timing of 09.10. She recorded that she had found the cervix to be almost fully dilated but with a thick anterior rim. She noted that she found the vertex to be at the ischial spines and that the baby was in the direct occipito-anterior position. Dr Black further noted that she had been unable to rupture the membranes artificially and queried whether the membranes had already ruptured. She noted that there was some "show" but that no liquor had been seen. She further noted that she had relayed these findings to Dr Valero. Midwife Nairn made an entry in the nursing notes timed at 09.25 in which she again made reference to the presence of variable decelerations on the CTG tracing. She noted that variable decelerations continued with the contractions, that they had quick recovery and that the variability was satisfactory. She noted that the fetal heart rate was 156 beats per minute. In an entry timed at 09.45 Midwife Nairn noted that Mrs Lowe was having rectal pressure and urges to push. She again noted the presence of variable decelerations with contractions. At 10.00 she made an entry to note that the CTG tracing was showing satisfactory variability and that variable decelerations were continuing. Sister Tutt was again asked to review the CTG tracing and in an entry timed at 10.05 she noted the presence of deep variable decelerations with good variability. She noted that she was to carry out a further vaginal examination in order to perform an assessment. The results of Sister Tutt's examination are recorded in the nursing notes in an entry timed at 10.10. She noted that Mrs Lowe's cervix was now fully dilated, that the baby's head was at +1 cms to the ischial spines and in a direct occipito-anterior position. She recorded that no membranes were felt. Sister Tutt repeated her own comment as recorded in the 10.05 entry that the CTG tracing was showing deep variable decelerations with good variability. She also noted that Mrs Lowe had been encouraged to push on her left side and that medical staff were to be asked to review the CTG readings.

[7 ] The review of the CTG tracing was carried out by Dr Black and her findings are recorded in the nursing note entry timed at 10.20. She noted the fetal baseline heart rate as being 160-170 beats per minute. She noted that there was good variability, that there were decelerations with contractions to 70-80 beats per minute and good recovery. She noted that she would inform Dr Valero. Dr Valero returned to carry out a review and entered his findings in the nursing notes in an entry timed at 10.40. There are in fact two entries with this timing, the second of which is the entry made by Dr Valero. It is not clear who the author of the first 10.40 entry was but the entry made was a note that Mrs Lowe had been actively pushing since 10.25. In Dr Valero's entry he noted that she was pushing, that no liquor had been seen, and that the CTG tracing showed persistent variable decelerations with good recovery and good variability. He noted his decision that Mrs Lowe should continue pushing, that the CTG was to be observed and that he would undertake a review of the situation in 15 minutes, in other words at about 10.55. At 10.50 Midwife Nairn made an entry in the nursing notes to record that Mrs Lowe continued to push, that there was still nothing visible, that the pushes were ineffective and that Mrs Lowe was very tired. She noted the fetal heart rate to be 134 beats per minute and that variable decelerations continued. At 11.00 Midwife Nairn noted that there was still nothing visible, that Mrs Lowe had changed position and was now on all fours and was continuing to push. She noted that the fetal heart rate was at 152 beats per minute.

[8 ] As was clear from the entry made by Midwife Nairn at 11.00, Dr Valero did not in fact return by 10.55. The precise time of his return became one of the few matters of factual dispute in the evidence and was the subject of competing submissions by Counsel. I shall return to the resolution of this matter and its consequences later. For present purposes it is sufficient to note that Dr Valero made a record of his findings and decision which appears alongside an entry of 11.15 in the "Time" column. On his return Dr Valero noted that there was nil visible after one hour of pushing. He noted that he intended to perform a vaginal examination and assist with delivery. He recorded that on examination assessment was very difficult on account of the patient's discomfort. He confirmed that Mrs Lowe was fully dilated and recorded that the baby's head was at 1cm below the ischial spines. He also recorded that the head was lying in the deflexed occipito-transverse position. This was a different finding from that noted by both Midwife Nairn and Sister Tutt in their earlier examinations and, if correct, would reflect a fetal malposition affecting the mother's ability to deliver naturally. Dr Valero continued his note by recording that he had been unable to manually rotate the baby and that Mrs Lowe needed analgesia and a proper examination in theatre. The final portion of this entry notes that Mrs Lowe was to give consent for a trial of forceps delivery, proceeding to caesarean section if necessary and that matters were discussed with Dr Roberts, a senior colleague.

[9 ] At 11.35 as Mrs Lowe was being prepared for transfer to theatre by Dr Black a fetal bradycardia occurred with the fetal heart rate dropping to 60 beats per minute. Dr Black caused the emergency buzzer within the room to be activated and various other members of staff arrived to assist. Mrs Lowe was taken to theatre as an emergency. A general anaesthetic was administered and a forceps delivery was performed by Dr Brennan, the senior registrar who had been paged to assist. Baby Kieran was delivered at 12.04 but showed no cardiac output. Resuscitation procedures and cardiac massage were performed, initially by the delivery team until care was taken over by the paediatricians. Kieran was found to have no cardiac output and no spontaneous respiratory effort. Intensive resuscitation was performed over a twenty minute period with ventilation, cardiac massage and intravenous adrenaline and bicarbonate. His Apgar scores were 0 at one minute, 0 at 5 minutes, 0 at 10 minutes, 0 at 15 minutes and 2 at 18 minutes. A heart rate and occasional gasp was first noted at 18 minutes. As a consequence of how matters developed after Dr Valero's instruction that Mrs Lowe was to be transferred to theatre for a trial of forceps delivery, the medical notes for that period were written up by the relevant personnel in retrospect. Dr Valero's last note records that when Dr Brennan arrived to assist she thought that the fetal position was left occipito-posterior.

[10 ] It was common ground in the case before me that Kieran had developed cerebral palsy as a consequence of hypoxic ischaemic insult occurring in labour. The CTG tracing for the period from 11.30 onwards was agreed by all witnesses to reflect a very ominous picture. It became common ground in submissions that the CTG tracing for this period demonstrated persisting bradycardia indicative of circulatory collapse at around 11.40. It was common ground that the permanent brain damage which baby Keiran sustained occurred between this time and delivery.

The Pursuer's Contentions
[11 ] Before discussing the evidence and submissions in detail it may be convenient to summarise the pursuer's contentions as advanced during the course of the evidence. Taken broadly, it was argued on behalf of the pursuer that the medical and midwifery staff responsible for Mrs Lowe's care had been negligent in failing to appreciate the significance of the CTG readings available from 08.21 onwards. It was said that had they properly interpreted the information available to them an assisted delivery would have been performed at an earlier stage thus avoiding the subsequent circulatory collapse and brain injury. Within this broad context three specific allegations were advanced. Firstly, that having been asked to examine the CTG trace readings after the 08.47 episode Dr Valero ought to have instructed a fetal blood sample to be taken in order that an assessment of the fetal acid base status could be obtained. Secondly, that Dr Valero ought to have delivered the baby at his 10.40 review and thirdly that Dr Valero failed to timeously return and perform the review which he had permitted.

Evidence
[12 ] Mr and Mrs Lowe both gave evidence and spoke of their concerns during the period of labour. They also gave detailed evidence as to the arrangements for Kieran's care which have been in place throughout his life. It was clear that they are devoted and loving parents who provide a high level of care in very demanding circumstances. If my task had been to identify a deserving cause my decision would have been straightforward and instantaneous. At a stage in the proof after Mr and Mrs Lowe had given evidence, parties agreed the appropriate level of quantum to be awarded in the event of a finding of negligence which meant that my assessment of the evidence focussed principally on the remaining witnesses. The witnesses who spoke to the decisions made during Mrs Lowe's intrapartum care were Midwife Nairn and Doctor Valero, both of whom were called on behalf of the pursuer.

Midwife Nairn
[13 ] Mrs Nairn was forty-four by the date of the proof. She qualified with a Diploma in Midwifery from Glasgow Caledonian University in 1998 after 3 years study. The course comprised a mixture of classroom and practical training. She did all her training as a student at the Queen Mother's Hospital. Prior to commencing her course she had been in the Civil Service. On graduating in March of 1998 she spent the first three months or so of her post-qualifying period in Hammersmith Hospital London. Thereafter, in about July 1998 she obtained a position at the Queen Mother's Hospital and returned to Glasgow. The normal practice for a newly qualified midwife was to rotate through four different departments, the labour suite, the ante-natal unit, the post-natal unit and the special needs baby unit. In July 1998 Mrs Nairn commenced in the labour suite and, as it happens, was still there by January 1999. The procedure was that newly qualified midwives would be allocated their own patients but would work with assistance being available. In effect they were still being taught. To begin with as a newly qualified midwife Mrs Nairn was allocated patients who were thought to have straightforward needs. By the end of 1998 she was dealing with less straightforward matters as well and was more confident within her own practice.

[14 ] Mrs Nairn remained employed at the Queen Mother's Hospital, but by the time she came to give evidence in February of 2006 she had been off work since the previous November. Mrs Nairn had been suffering severe grief reaction with panic attacks as a consequence of the death of her mother. Prior to the commencement of the proof there was a degree of uncertainty as to whether she would be able to give evidence. A soul and conscience medical certificate from her General Practitioner dated 20 January 2006 was provided to the court in which it was stated that she was medically unfit to give evidence. A suggestion was then made that she might be fit to give evidence on commission. After further enquiry it became clear that Mrs Nairn felt that she would be able to give evidence in court. In order to assist her, courtroom formalities such as the wearing of wigs and gowns were dispensed with, a rather less austere court room was made available and I sought to ensure that she was given regular breaks, as she felt necessary. In the event Mrs Nairn coped well with the experience of giving evidence. However when it came to assessing the weight to be attached to her testimony I felt it appropriate to bear in mind her underlying condition.

[15 ] By the time Midwife Nairn commenced working at the hospital in July 1998 she was familiar with the use of electronic fetal monitoring. She did not require any training on the use of a CTG machine nor on the interpretation of readings obtained. A CTG machine was available in each of the rooms within the Tower Suite. Unsurprisingly, Midwife Nairn was not able to recollect the details of Mrs Lowe's progress through labour. However, with the assistance of the nursing notes she was able to give a comprehensible account of how matters developed. Midwife Nairn confirmed recommencing CTG monitoring at 08.15 in light of the drop in fetal heart rate to 82 as detected by use of the sonic aid monitor. This was a device which produced a digital reading of the fetal heart rate at a given moment of checking but did not provide a continuous record in the way that the CTG machine did. The CTG chart which was produced is split into two sections. The upper section shows the fetal heart rate in beats per minute. The entries are in the form of a continuous trace on squared paper. The paper is split into consecutively numbered sections. Each section comprises eighteen boxes horizontally, each representing 30 seconds. Within the middle of each section of tracing there is a vertical heart rate calibration line marked from 30 to 240 beats per minute. Each box in the vertical dimension represents 10 beats per minute. The lower section of the tracing measures the frequency, force and length of contractions. Between the two sections of the tracing there appears a timing at ten minute intervals.

[16 ] Midwife Nairn decided to perform a vaginal examination having recommenced CTG monitoring as the previous examination had been conducted at Mrs Lowe's admission, some three hours earlier. Midwife Nairn was aware that Mrs Lowe was a parous patient (had given vaginal birth before) and that in such circumstances delivery can occur quite quickly. She explained that at this stage her assessment would have been that the earlier deceleration to 82 beats per minute was a consequence of head compression and progress. Midwife Nairn recorded the findings of her vaginal examination in the entry timed at 08.25. She acknowledged that she had not been entirely sure about the position of the baby's head at this time. In this entry she also made reference to the presence of variable decelerations and in consequence of their presence asked Sister Tutt to review the CTG trace. Sister Tutt's review of the trace appeared in the notes as the 08.35 entry. Midwife Nairn wanted Sister Tutt to review the CTG readings as it was obvious to her that there had been a number of decelerations along the trace. Midwife Nairn confirmed that the nursing note timed at 08.50 was made by her. The purpose of the note was to record the event seen on the CTG trace which commenced at about 08.47. The term used by Midwife Nairn was "Fetal bradycardia to 84bpm - slow recovery to baseline". Evidence generally disclosed that bradycardia was a term used to indicate a reduction in fetal heart rate. The pattern which could be seen on this portion of the tracing was clearly different from that which had preceded it.

[17 ] Throughout the proof much reference was made to number 6/13 of process which was a document printed from the Internet containing extracts from guidelines prepared by the National Institute for Clinical Excellence. The document was entitled "The Use Of Electronic Fetal Monitoring. The use and interpretation of cardiotocography in intraprtum fetal surveillance". This document was referred to throughout as the "NICE Guidelines". Its purpose was, amongst other things, to standardise the terminology used, to standardise the interpretation of CTG tracings and to standardise the response to CTG trace readings. Section 2.4 of the document is headed "Interpretation of EFM". This section then sets out in Table 3 and Table 4 categorisations of fetal heart rate traces and of fetal heart rate features. Table 4 lists fetal heart rate features which fall to be categorised as either "Reassuring", "Non-reassuring" or "Abnormal". Table 3 sets out three categories to be applied to the CTG trace according to the presence of the features as categorised by Table 4. The categories of CTG trace are described as "Normal", "Suspicious" and "Pathological". Table 4 also sets out the appropriate measures to be adopted when a CTG trace falls to be defined as either suspicious or pathological. Appendix D of the document sets out the standardised terms to be adopted in respect of fetal heart rate features and provides a definition for each. In order to apply the NICE Guidelines to any particular CTG trace reading one has to read together the terms of Appendix D, Table 4 and Table 3.

A "prolonged deceleration" is defined by Appendix D as being:
"An abrupt decrease in FHR (fetal heart rate) to levels below the baseline that last at least 60 - 90 seconds. These decelerations become pathological if they cross two contractions, ie greater than 3 minutes".

One of the features listed in Table 4 is a "single prolonged deceleration lasting more than 3 minutes". Table 4 provides that this feature is categorised as Abnormal. Table 3 provides that a CTG trace falls to be categorised as "Pathological" if it is a CTG whose features fall into two or more non-reassuring categories or one or more abnormal categories. Accordingly it is clear that the event described by Midwife Nairn as a fetal bradycardia fell to be viewed, in terms of the NICE Guidelines, as showing a prolonged deceleration, properly categorised as an abnormal fetal heart rate feature, resulting in the trace being categorised as pathological. The response to cases where the CTG trace falls into the pathological category is set out in Table 4 as follows:

"conservative measures should be used and fetal blood sampling be undertaken where appropriate/feasible. In situations where fetal blood sampling is not possible or appropriate then delivery should be expedited".

[18 ] In common with all of the other relevant witnesses Midwife Nairn was examined at length on the contents of the NICE Guidelines. However, these guidelines were not issued until May 2001, more than two years after the birth of Kieran Lowe. It was common ground that until the issue of the NICE Guidelines there was no other comparable advice available to the medical profession. Although teaching in the use and interpretation of CTG readings was provided to both medical and midwifery staff and although various textbooks covered the interpretation of and response to CTG trace readings, considerable variation in both terminology and interpretation appeared to occur throughout the United Kingdom. It was this which lay behind the introduction of the Guidelines themselves. However, even by 1999, Midwife Nairn had experience of the interpretation of CTG tracings. It was clear from her evidence that she appreciated that the CTG trace from 08.47 onwards indicated an event which required to be responded to. Midwife Nairn confirmed that this was a concerning portion of the tracing. She acknowledged that the concern was the slow recovery to baseline heart rate and that she would have considered this a significant matter. She recognised that the deceleration clearly lasted through at least two contractions and accepted without hesitation that it was a reading which needed to be acted upon. Although she had some difficulty in remembering the detail of how she had done so, it is clear that Midwife Nairn did bring this portion of the trace to the attention of Dr Valero. Someone has written the words "seen by Dr Valero" on it. In addition he was the author of the nursing entry at 08.55. In evidence Midwife Nairn initially thought that she might have sought assistance by pressing the emergency buzzer within the room. She said that in that type of situation if medical staff were not available she would have pressed the emergency button. On examining the notes she pointed out that there was only a few minutes between her own entry recording the presence of the bradycardia and Dr Valero's note. She then remembered that the ward round would have been taking place at this time and that Dr Valero may have attended or been nearby in this context. In any event there was no suggestion that Midwife Nairn failed to seek medical assistance in respect of this event or that there was any inappropriate delay in a medical review taking place. Midwife Nairn also made it clear, and this was accepted by counsel for the pursuer, that although she had been trained to recognise relevant features of a CTG trace it was not her responsibility as a midwife to categorise a trace. That was always a function of medical staff. Her explanation as to what should be done in response to a prolonged deceleration such as she had observed was that the midwife should alert the sister in charge or the medical staff and ascertain a plan from that stage taking into account both the mother and the baby. The plan which was put in place was that noted by Dr Valero in his entry of 08.55, namely that there should be artificial rupturing of the membranes and confirmation of satisfactory progress. Midwife Nairn confirmed that in 1999 she knew that a fetal blood sample could be taken as part of a response to such a trace reading. However she made it clear that this would always have been a decision for medical staff to make. Such a sample would only be taken by medical staff.

[19 ] The instruction to perform an artificial rupture of the membranes was carried out by the senior house officer Dr Black, who recorded her findings in the entry timed at 09.10. Midwife Nairn thought that Dr Black was wrong in thinking that the membranes might already have broken as there had been no liquor seen and she felt that had they ruptured at some point after her own 08.25 examination then she would have expected to see some sign of this. Despite the failure to perform an artificial rupture as requested by Dr Valero, Midwife Nairn did not accept that there had been no progress with the plan itself. In her view what mattered was that the examination confirmed that there had been progress in the labour. In the 45 minutes since the last examination the baby's head had continued to descend and the cervix had gone from 8cm to a thick anterior rim, which equalled 9cm, almost full dilatation.

[20 ] Since it was part of the pursuer's case that a fetal blood sample ought to have been taken in light of the 08.47 bradycadia this proposition was put, at times quite forcefully, by Mr Mitchell to Midwife Nairn. At one stage, the following proposition was put by Mr Mitchell in examination in chief:

"In 1999 a fetal blood sample not only could have been taken but should have been taken in response to such an event"

After a considerable pause Mrs Nairn answered: "Probably yes".

In cross examination Midwife Nairn explained that by 1999 she had only rarely been involved in deliveries where fetal blood samples had been taken. She had never herself suggested to a doctor that such a sample ought to be taken and thought it rather unrealistic to suggest that she would. She pointed out that if the midwife has concerns she passes them on to the doctor. However it is for the doctor to decide on what action is be taken. When asked in cross examination about the apparent concession she had made to Mr Mitchell regarding the taking of a fetal blood sample she replied:

"With regard to that question I did feel quite a bit of pressure. The fetal sample in this case was not my decision to make. I think I brought all of the information to the people who make the decision".

This explanation was consistent with the impression I had formed as she gave her answer to Mr Mitchell in examination in chief.

[21 ] Mrs Lowe next had a vaginal examination at 10.10, performed by Sister Tutt. In-between, Midwife Nairn had continued to observe and assist Mrs Lowe. In three entries timed at 09.25, 09.45 and 10.00 she had made reference to the continuing presence of variable decelerations on the CTG trace. She noted the presence of satisfactory variability in both the first and third of these entries. However as a consequence of the continuing decelerations and in light of the earlier bradycardia Midwife Nairn made a further request of Sister Tutt that she review the readings. Having done so, Sister Tutt noted the presence of deep variable decelerations with good variability. She decided to perform a vaginal examination to assess progress. Although Sister Tutt did not give evidence, her entry at 10.10 setting out the findings of her examination was treated by both parties, and all witnesses, as being accurate. She noted that Mrs Lowe was now fully dilated, that the head was at the spines plus 1 position and in the direct occipito-anterior position. She repeated her observation as to the CTG trace and noted that Mrs Lowe had been encouraged to push on her left side. She also noted that medical staff were to be asked to review the CTG readings.

[22 ] The diagnosis of full dilatation marks the commencement of the second stage of labour. As it was known that Mrs Lowe was capable of natural delivery and as second pregnancies can be unpredictable, Midwife Nairn explained that she would expect delivery at any stage, after full dilatation, although it could be up to an hour. Despite this Midwife Nairn did express some concerns about progress. Her concerns were that the CTG trace continued to show decelerations, that Mrs Lowe was quite sore and had commenced involuntary pushing (by 09.45). Involuntary pushing was a natural reaction to the progress of the baby and was something the mother had no control over. It required to be distinguished from active or assisted pushing, which occurred under the direction of the midwife. In active pushing the mother is encouraged by the midwife to push with the contractions and three pushes per contraction are attempted. Active pushing is the attempt to achieve delivery. Midwife Nairn had some concern that Mrs Lowe might wear herself out prior to the time for active pushing. As a consequence of these concerns Midwife Nairn was becoming hopeful that things would move along quickly and that a decision would be made about delivery. Having acknowledged a concern as to the continued presence of decelerations on the CTG trace Midwife Nairn was asked what her recollection of the monitoring after 10.10 was. She explained that observations continued and she saw decelerations which she thought could be due to head compression, which would have been consistent with being in the second stage of labour. Although she readily accepted that decelerations might also be a sign of fetal tiredness or distress she commented that "in this case what we had decided upon was progress causing decelerations with the mechanism being head compression".

[23 ] Although Dr Black did not give evidence either, it is clear that she reviewed the CTG trace in light of Sister Tutt's request. Dr Black's assessment appears in the entry timed at 10.20. Dr Black noted a baseline of 160 -170 beats per minute with good variability and decelerations with contractions to 70-80 beats per minute and good recovery. She also noted that she would inform Dr Valero.

[24 ] Dr Valero attended and made the second of the notes timed at 10.40 in the terms described above at paragraph [7]. By this time Mrs Lowe had been actively pushing for 15 minutes. Midwife Nairn was able to recollect some of what was done by Dr Valero during this visit. She recollected him asking how Mrs Lowe was, looking at the monitor and reading the notes. She could not remember what particular questions he asked her but that he had asked some. She did not accept the suggestion that this was a short visit by Dr Valero and was satisfied that she would have conveyed to him the information which was concerning her. By the time of this visit Midwife Nairn's evidence was that although Mrs Lowe had been actively pushing for a little while her pushes were not very effective. Mrs Lowe was becoming tearful and tired and the decelerations were continuing. Midwife Nairn's evidence was that she thought delivery was probably not going to occur naturally and it was time to expedite delivery. In chief her evidence was that she was not happy with the situation at 10.40 as, although she wanted a natural delivery, if that was not going to happen she wanted a decision to be taken about assisted delivery. In cross she modified this to saying that she wanted a plan for delivery to be put in place at this time. However midwife Nairn did not ask Dr Valero to make a decision at this stage. Nor did she query his decision that Mrs Lowe should continue pushing with a review in fifteen minutes.

[25 ] Between Dr Valero's 10.40 visit and his subsequent return midwife Nairn continued to provide care and support to Mrs Lowe. She made two further entries in the nursing notes, those described above timed at 10.50 and 11.00. She made no effort to contact Dr Valero or any other member of staff prior to his return. Midwife Nairn gave no direct evidence as to what time Dr Valero returned. However the nursing entry documenting Dr Valero's review and decision has an entry in the time column of 11.15. Throughout midwife Nairn's evidence, both chief and cross, counsel and the witness appeared to proceed upon the understanding that he did not return until 11.15. Midwife Nairn's position was that she continued to do what she was trained to do. The doctor had said that he was going to return and had obviously been held up. In the mean time she continued to try and assist Mrs Lowe to deliver.

[26 ] When Dr Valero did return he performed a vaginal examination and midwife Nairn was aware that he had made a finding as to the baby's position which was different from the view that both she and Sister Tutt had earlier arrived at. She was asked by Dr Valero to go to theatre and ensure that it was set up for a trial of forceps. She explained this to Mrs Lowe and left her in the care of Dr Black and the anaesthetic assistant. Dr Valero left to discuss the case with Dr Roberts, a more senior colleague.

Dr Valero
[27 ] Dr Valero was 39 years old by the time of the proof. He had undertaken his medical training in Tenerife, completing this in 1992. Thereafter he came to the United Kingdom and held posts at Arbroath Royal Infirmary, Crosshouse hospital in Ayrshire and the Victoria Infirmary in Glasgow. From about the middle of 1996, for three years, he held the post of registrar in obstetrics and gynaecology at the Queen Mother's Hospital in Glasgow. He left to take up his current position as head of the department of gynaecology and obstetrics at a private hospital in Tenerife which undertook work for the Spanish National Health Service. Most of his duties now concerned gynaecology rather than obstetrics. Dr Valero gave evidence as to his visit to Mrs Lowe following on the 08.47 bradycardia reported by Midwife Nairn. He was able to recollect aspects of this event but not its entirety. Dr Valero's evidence was that in a situation such as this he would require to assess the whole history of the patient including her age, the CTG readings up to that point, the history of the pregnancy and the stage of the labour. Dr Valero explained that it was common to see an isolated deceleration such as this and that there could be a variety of causes for such a feature. Dr Valero's evidence was that in this case he was content because the trace recovered to a reassuring level. He explained that he viewed the bradycardia as an isolated event because the trace could be seen to recover. He explained that such events can sometimes be caused by factors such as the position of the mother or the baby's head being compressed on descent. In the present case he stated that because the trace could be seen to recover he concluded that the bradycardia was isolated and was most likely a consequence of head compression. He concluded that the event had passed and it was safe to continue with the labour. Dr Valero acknowledged that if the trace had not recovered after normal manoeuvres it would have been obvious that he would have to do something about it. Dr Valero's position was that he made a plan to check whether his assessment was correct by confirming that Mrs Lowe was progressing and to break the membranes to see if there was any sign of meconium in the liquor, which can be an indication of fetal stress. In explaining his thinking at this point of his care Dr Valero laid stress on the need to examine the history of the trace readings and the stage of delivery which had been reached. He pointed out for example that Mrs Lowe had only been in labour for three hours but her level of dilation had gone from 3cm to 8 cm and the head had come down quite far. Accordingly he said that things were progressing very quickly and that this speed of progress could explain the overall picture of the CTG trace readings. He viewed the bradycardia in this context, saw the trace as recovering and saw no other signs of trouble in the CTG trace readings. The plan which Dr Valero put in place was to arrange for an examination to be carried out by the senior house officer, Dr Black. Her findings are noted in the 09.10 entry. Dr Valero's evidence was that these findings were what was expected, namely that there was progression and that the baby's head was coming down. He was not concerned about the inability to artificially rupture the membranes. To his mind the information that the baby's head had come down further served to reinforce his assessment of what had caused the bradycardia.

[28 ] Dr Valero's next direct involvement with Mrs Lowe was at the 10.40 visit. By this time, according to the note, she had been actively pushing since 10.25, about 15 minutes. Dr Valero's view was that it would be reasonable to allow a patient to push for somewhere between about 30 minutes and an hour, depending upon the individual circumstances. His explanation was that upon looking at the CTG trace readings he saw that that there had been persistent variable decelerations with good recovery and good variability. In view of how quickly she had been progressing he thought it was reasonable to allow another 15 minutes for pushing. On the matter of the absence of liquor Dr Valero's evidence was that this could be normal, for example when a baby's head occupies the whole of the cervix acting as a plug to stop any liquor getting though. Although Dr Valero had no real recollection of this visit at about 10.40 he resisted any suggestion that this would have been just a short visit, which would not have been supported in other evidence anyway. Dr Valero asserted that he was sure he was giving proper consideration to Mrs Lowe's labour at this examination and was not just treating her as an unimportant case. He was sure, he said, that he had not rushed his 10.40 decision. He explained that he would have looked back through the notes and the CTG trace readings. He acknowledged that he would have been aware of the trace showing decelerations. These were recorded in the various entries in the notes from 09.25 onwards. Dr Valero's response in evidence to this was that all of the recorded observations either by the midwife, sister or senior house officer were to the same effect, namely that although decelerations were noted there was also good variability and quick recovery. His own note at 10.40 was to the same effect.

[29 ] Dr Valero accepted that he did not return to review Mrs Lowe in 15 minutes. He stated had he had no recollection of what he had been doing or why he was late. However, in various different ways, under questioning from counsel for the pursuer, he repeated that he must have been attending to another patient at the time. In any event Dr Valero would not accept counsel's proposition that the timing of this review was critical. In his view it was an important review because it was to be carried out by him and this was what mattered. On his evidence there was no importance to be attached to whether it was performed within 15 or 20 minutes or more. Dr Valero's evidence was that it was clear on returning to the room that the baby needed to be delivered. As I understood him Dr Valero was explaining that he expected to arrive to be told that the baby had been delivered. When this was not what he was presented with it was obvious because of the length of time which Mrs Lowe had been pushing that an assisted delivery was necessary. He commented upon his recollection that she was very uncomfortable. He recollected having great difficulty in performing a vaginal examination because of the level of pain which she was in. What he did discover though was that the baby's head was in the deflex occipito-transverse position. Dr Valero was aware of what the previous findings had been and was adamant that his finding was correct despite the difficulties which were attendant upon his examination. He stated that as soon as he performed this examination he realised that it would be impossible to deliver in the room and that Mrs Lowe would require a transfer to theatre.

[30 ] Dr Valero was examined by counsel for the pursuer as to his training in the interpretation of CTG trace readings. He understood the distinction between early, variable and late decelerations. He acknowledged that in 1999 he was aware of the possibility of taking a fetal blood sample if a CTG trace was giving serious cause for concern as to the health of the baby. His assessment was that in the few minutes before the bradycardia the trace readings were re-assuring and the variability in particular was perfect. Since the heart rate recovered and this was a single incident his interpretation of the readings as a whole was that the baby was coping and was not showing signs of being hypoxic. In these circumstances he saw no need to obtain a fetal blood sample. His position was that in the Queen Mother's Hospital in his time such a procedure was rarely carried out. He sought to put this into context by explaining that the hospital performed about 3,500 deliveries per year, yet no more than about 20 fetal blood samples were taken per year. He assessed the 08.47 episode as being a transient episode caused by head compression on descent. He thought that the CTG trace showed good recovery and that labour was progressing rapidly with the likelihood that Mrs Lowe would soon deliver. The other variable decelerations he thought were most likely caused by cord compression. He resisted the suggestions from counsel for the pursuer that he had been unaware of the dangers for the foetus of hyoxia. His position was that the readings were not indicative of hypoxia. He knew that decelerations had to be taken note of and that they could lead to hypoxia. However Dr Valero sought to emphasise to counsel that it was important to remember that all of the references in the nursing notes to variable decelerations included a description of good variability and good recovery. His point was that one could not look only at the fact of a variable deceleration, one had to take account of all of the features of that particular reading. He did not consider the trace to be pathological and did not consider that actions beyond those taken were necessary. Although Dr Valero acknowledged to counsel for the pursuer that the readings for the period between 09.40 and 10.00 were difficult to interpret, he explained that by the time he went to the room at about 10.40 the readings had returned to what they were before and showed a pattern within normal limits. Once again in his view good variability was present and the picture for him was therefore of a baby who had previously coped well and was again coping well. In these circumstances an assisted delivery was not put in place at 10.40 because there had been no change in the CTG trace readings, all of the vaginal examinations had the head in the favourable occipito-anterior position and the findings all suggested that there would be a natural delivery within a short space of time.

Expert Evidence
[31 ] The pursuer led expert evidence from Dr Benjamin Stenson a consultant neonatologist whose evidence was largely uncontroversial. In support of her criticisms of the standard of care received the pursuer led the evidence of Dr James Milne, a consultant obstetrician and gynaecologist at the Simpson Centre for Reproductive Health, the Royal Infirmary of Edinburgh, Dr Norman Smith, a consultant obstetrician at the Aberdeen Maternity Hospital and Mrs Evelyn Forrest who held the post of Deputy Services Manager at Wishaw General Hospital. The defenders led the evidence of Professor Dierdre Murphy, Professor of Obstetrics and Gynaecology at Trinity College Dublin and Professor Andrew Calder, Professor of Obstetrics and Gynaecology at Edinburgh University. Standing the fact of the litigation it was not surprising to hear that there was a dispute amongst this body of evidence. The testimony from these witnesses alone occupied the court over fifteen days of evidence.

Dr Milne
[32 ] Dr Milne had held his post as consultant in obstetrics and gynaecology at the Edinburgh Royal Infirmary since 1998. He had held a number of previous appointments in gynaecology and obstetrics. He had lectured in the subjects at Cambridge University between 1977 and 1980 and had published various articles in the 1970's. He had also served on various committees of the Royal College of Obstetricians and Gynaecologists. In his CV he described his main area of interest as urogynaecology and explained that he had responsibility for the Continence Advisory Services. In Dr Milne's evidence, as with the other experts, he was asked to provide a detailed analysis of the CTG trace readings which had been produced during Mrs Lowe's time in the Tower Suite. Looking to the first of the trace readings after 08.21, when the continuous monitoring was recommenced, Dr Milne's view was that it showed a trace from which he would take very little comfort. He examined the readings up until the bradycardia at 08.47 and explained that the trace showed a number of decelerations which were classified as late or atypical variable decelerations. He noted that the 08.47 bradycardia existed beyond two contractions. Following on from this episode he explained that one could observe continuing variable decelerations and periods of reduced baseline variability until the end of section 97604 at around 09.40 when the trace in his view became pathological. The portion of the trace from about 09.40 through to about 10.00 had been reproduced by Dr Milne as figure 3 within his own report in order that he could more easily identify the concerns which he had. In his report he uses this passage to identify what he calls "an ominous late deceleration at around 09.45 and again just before 10.00". Overall between 08.21 and 10.10 Dr Milne's view was that the trace contained elements which were not re-assuring, which moved into the abnormal category and were pathological at stages. He disagreed with the comments concerning the entries in the nursing notes at 09.45, 10.00 and 10.10 in that he did not see good or satisfactory variability. In his view the situation had been underestimated. In the face of a pathological trace Dr Milne's view was that it was essential to get more information about the baby's condition by taking a fetal blood sample.

[33 ] On being questioned about the need to take a fetal blood sample in response to the 08.47 bradycardia Dr Milne's response was:

"I think it would have been more than wise to take one at the marked deceleration at 08.47. That deceleration was prolonged atypical and deep".

On being asked should a blood sample have been taken at this stage his response was: "I think it would have been a good approach to take a fetal sample at that stage"

Dr Milne went on to express the view that given the initial reason for recommencing continuous monitoring, the nature of the trace after recommencement and the prolonged deceleration at 08.47 it did fall below the standard of care to be expected not to take a fetal blood sample at that time, although my own impression as he gave this evidence was that he required to be somewhat pushed into this by counsel. Dr Milne's view was that once full dilatation had been diagnosed at 10.10 one would expect a parous patient such as Mrs Lowe to have a normal spontaneous delivery within half an hour. He would have wanted her to do so by 10.40 because of the previous CTG trace readings. Accordingly in his view it fell below the relevant standards of competent medical and midwifery staff not to expedite delivery at 10.40. Had that been done he would have expected a caesarean delivery to have been achieved within half an hour. Dr Milne saw the developments in the trace at around 11.30 as being pre-terminal and a worsening of an ongoing position rather than an indication of a baby who suddenly became unwell.

[34 ] Taken generally, Dr Milne's position was as summarised by him towards the end of his examination in chief when he stated that in his view the CTG changes had been underestimated. In his view the readings were sending out messages that should have been acted upon more proactively than they were, irrespective of the expected length of labour. On any view as he explained it any justification for not taking other steps evaporated when the baby was not delivered quickly. He confirmed in cross-examination that his general criticism was of failure to act earlier and that his criticism was based upon what could be seen on the CTG trace. When he spoke of underestimating in this context what he really meant was mis-interpreting.

[35 ] In cross examination counsel for the defenders discussed with Dr Milne the history of the terminology used in relation to CTG readings and the circumstances in which the NICE Guidelines came to be formulated. His underlying proposition was that interpretation of such readings was controversial and that by 1999 there remained great inconsistency in the interpretation of such readings. Counsel discussed with Dr Milne the interpretation which other experts appeared to place on aspects of the trace readings following on from the 08.47 episode. The proposition advanced was that the trace simply showed decelerations which one should take account of and continue to monitor. Dr Milne however saw no reassuring features and described the decelerations present as moving from non-reassuring to pathological. Despite his own interpretation of the CTG trace readings Dr Milne did assent to the propositions being put by counsel for the defenders that other clinicians might take a different view from the one which he held. Counsel for the pursuer returned to this during re-examination and asked Dr Milne to clarify his position to which he responded: "I would like to think that the body of opinion would support my assessment".

Dr Norman Smith
[36 ] Dr Smith had held his post as consultant obstetrician at Aberdeen Maternity Hospital since 1986. His CV disclosed that he had served on various committees of the Royal College of Obstetricians and Gynaecologists, mainly relating to higher training and education. It also disclosed that he had written thirty six peer reviewed articles and four books. Dr Smith appeared to have described his career in rather modest terms in his CV and did not detail the dates or subjects of his published work. In common with the other witnesses Dr Smith was taken in detail through the CTG trace number 7/1 of process. His description of the decelerations which preceded the prolonged deceleration at 08.47 differed from that given by Dr Milne. Whereas Dr Milne had described these as being mostly of the late variety, Dr Smith termed them as variable or atypical variable decelerations. However he was keen to make the point that one ought not to categorise a trace by looking at a single deceleration. One ought to take a group of about five to ten together and arrive at a categorisation. On the deceleration at 08.47 however there was no dispute. Like Dr Milne he viewed this as a prolonged deceleration. The consequence for Dr Smith was that the trace fell to be categorised as pathological. In so saying he was applying the advice to be found within the NICE Guidelines. On this basis the trace fell to be categorised as pathological on two counts, the presence of atypical variable decelerations and the presence of a single prolonged deceleration, each of which fell to be classified as abnormal features.

[37 ] In terms of the NICE Guidelines a pathological trace was one whose features fell into two or more non-reassuring categories or one or more abnormal categories. Dr Smith explained, as we had heard before, that the presence of features of this sort on a trace raise a concern that the foetus may be developing hypoxia. His evidence was that because one cannot be absolutely sure of this by observing the trace alone a fetal blood sample is the final arbiter. Again he took us through the advice to be found in the NICE Guidelines as to what a clinician should do in cases where the CTG trace falls into the pathological category. His opinion was that it fell below the relevant standard of care for Dr Valero not to obtain a fetal blood sample in response to the 08.47 episode as the trace was pathological and the patient was not about to deliver. Dr Smith's view was that the CTG trace readings got worse in the period after 09.00, showing the presence of typical and atypical variable decelerations and loss of variability. He described the trace as indisputably pathological by about 09.50. According to Dr Smith it fell below the relevant standard of care present in 1999 for Dr Valero not to have categorised this trace as pathological. It followed from all of this that, like Dr Milne, Dr Smith disagreed with the descriptions applied to the decelerations in the 09.45, 10.00, 10.05 and 10.10 entries in the nursing notes. Dr Smith commented that Sister Tutt had done the correct thing at her 10.10 review and asked the medical staff to review. In his view at that stage they ought to have expedited delivery. It followed in his view that Dr Valero ought to have delivered the baby at his 10.40 visit. Dr Smith also took issue with the description of the trace readings as entered by Dr Valero in his 10.40 note. Dr Smith's testimony was that there was neither good variability nor good recovery. In his opinion since the CTG trace readings were pathological and Mrs Milne was in the second stage of labour, Dr Valero had no alternative but to deliver. In his view it was clear by this time that the staff were dealing with a hypoxic baby.

[38 ] In cross-examination Dr Smith agreed that the gravamen of the complaint he would make was a failure to act earlier, that every allegation of negligence which he would support came back to the interpretation of the CTG trace readings and that these allegations were predicated upon the CTG trace readings being viewed as pathological. Dr Smith was perhaps less willing than the other obstetricians to recognise much room for variation in interpretation of such readings. However a small but interesting insight into the nature of the difficulty arose in cross-examination. He acknowledged to counsel for the defenders that his description of the decelerations in the period between 08.21 and 08.46 was atypical variable, thus resulting in the categorisation of pathological. This might of course have some importance because the presence of merely variable decelerations would result in a categorisation of suspicious, with no need for anything other than conservative measures to be adopted. The basis upon which Dr Smith drew a distinction between variable and atypical variable decelerations in this section was what he saw as the slow return of the heart rate. This was in keeping with the NICE Guidelines which included the definition of an atypical variable deceleration as:

"a variable deceleration with the additional component of a slow return to baseline fetal heart rate after the end of the contraction."

Dr Smith however acknowledged that no definition of a slow return is found in the NICE Guidelines. When asked how the profession is to understand what constitutes a slow return to baseline he responded by saying:

"That is part of the reason why we have meetings, so that those who know what it is can tell others."

When it was put to him that the phrase was undefined imprecise and vague he responded by saying: "That's why you need to see an example." When it was put to him that the two professors took the view that the decelerations were not atypical and that this demonstrated that the distinction between the two types was a matter of interpretation he responded by saying: "I think a slow return to baseline can be interpreted quite clearly." And when this passage was concluded by counsel asking if he nevertheless accepted that other clinicians might take a different view he stated:

"If there was any doubt about the meaning of a slow recovery it should not be included in such a guide."

How Dr Smith himself came to understand what constituted a slow return for these purposes was never explained.

Evelyn Forrest
[39 ] Mrs Forest held the post of Deputy Maternity Services Manager and Clinical Risk Manager within the Women and Children's Directorate at Wishaw General Hospital. She had over sixteen years of experience within midwifery care. She had undertaken various additional qualifications and taught CTG interpretation to midwifery students at the Bell College of Technology. Mrs Forrest prepared a report number 6/9 of process which had as its declared purpose:

"to analyse the midwifery care provided by midwives managing Audrey Lowe's intrapartum care."

In the summary of her report she listed a number of criticisms of the standard of midwifery care provided. In light of the way that matters developed in due course it is not necessary to outline Mrs Forrest's evidence in much detail. However she did give evidence as to the proper interpretation to be drawn from the CTG trace readings in this case. In this context, and despite the fact that her report had been limited to the midwifery care provided, she felt content in court to provide opinion evidence as to the standard of obstetric care provided. In doing so she criticised the level of care provided by Dr Valero, asserting that it met the test for negligence in various ways. She also felt able to criticise the accuracy and content of the sections of Professor Murphy's report which were put to her in examination in chief. At times she did do so in quite strident terms. As with the previous witnesses for the pursuer, Mrs Forrest's criticism flowed from her interpretation of the CTG trace as pathological. Despite her evidence to this effect, including at times describing the trace as "clearly pathological", the terms of her report had categorised the trace as nothing more than non-reassuring. This she acknowledged was a categorisation which was quite distinct from pathological.

[40 ] In cross-examination Mrs Forrest acknowledged that interpretation of the CTG trace readings was a medical responsibility rather than a midwifery one. Despite this she declined to accept the proposition that medical staff would be in a better position to carry out such interpretation. When asked why it was that she felt able to criticise the interpretation of the CTG trace readings which had been performed by the medical staff her response was to explain:

"I can tell you how anyone should interpret the trace, midwife or obstetrician."

As might be inferred from this comment it became clear that Mrs Forrest held a considerable degree of confidence in her own abilities in this regard and did not seem to recognise much by way of scope for difference of opinion. Indeed when it was put to her that the two professors of obstetrics were of the view that the trace was not pathological her response was simply that they were wrong.

Defenders' Witnesses
Professor Deirdre Murphy
[41 ] Professor Murphy, who was forty years of age, gave evidence in chief in February of 2006 and her cross-examination took place at the resumed diet of proof in November. At the commencement of her evidence she held the post of Professor of Obstetrics and Gynaecology at Dundee University. By the time of her cross examination she held the post of Professor of Obstetrics and Gynaecology at Trinity College Dublin. Professor Murphy's report, number 7/2 of process, had been prepared in November 2004. At that time she was a member of the Guideline and Audit Committee of the Royal College of Obstetricians and Gynaecologists. Since 2005 she had held the chair of that committee. She is also a member of the Standards Committee of the Royal College of Obstetricians and Gynaecologists. Professor Murphy had a wide range of academic and clinical experience including research and teaching posts at Oxford University and the University of Bristol. She described her clinical responsibilities as including high risk obstetrics, medical disorders in pregnancy and intrapartum care. She undertook a doctorate thesis on the origins of cerebral palsy at Oxford University in the mid 1990's and described cerebral palsy as her own particular area of specialism and expertise. Throughout the mid to late 1990's and to date Professor Murphy has published widely on aspects of her fields of interest. By the date of her cross-examination her estimate was that she had prepared more than seventy five peer reviewed publications. She listed a selection of these in the CV attached to her report in order to give a feel for what she called the type of high impact international journals in which she publishes.

[42 ] In her evidence Professor Murphy discussed the development of the use of electronic fetal heart rate monitoring. She explained the thinking behind the development of the NICE Guidelines to which so much reference had been made. She explained that prior to the introduction of these guidelines there was a wide range of classification systems in use utilising a mixture of terminology drawn from Europe, the United Kingdom and the United States of America. She explained that at that time there was very little consensus in describing or interpreting CTG charts and the available evidence suggested that different expert obstetricians who examined the same charts could interpret and classify them differently. She also explained that the same research demonstrated that the same chart given to the same expert at different intervals could be interpreted differently. Professor Murphy's evidence was that even those considered to have considerable expertise in this field by their own peer group can have problems with interpretation. It was as a result of these difficulties that the NICE Guidelines were formulated. However Professor Murphy was keen to emphasise that even now the guidelines require to be interpreted in light of the overall circumstances of the patient. The CTG trace readings ought not to be addressed in isolation. On the question of the benefit which has been introduced to intrapartum care by the widespread availability of electronic fetal heart monitoring Professor Murphy gave interesting evidence. She explained that controversy still exists over the interpretation of such readings. She said that the level of controversy was multi-factorial in that obstetricians cannot agree what they are seeing and still only have a basic understanding as to what is happening in blood flow and blood flow to the brain and how that affects the fetal heart. Obstetricians she explained have only a minimal understanding of which babies will cope and which will not. She gave an example of the nature of these limitations by explaining that despite widespread introduction of electronic fetal heart rate monitoring, rates of cerebral palsy have remained the same whilst the rates of caesarean section and forceps delivery have escalated. When asked if the introduction of the NICE Guidelines have helped the professor's evidence was that it was too early to say. She said that in terms of baby outcome what had been hoped for was a reduction in cerebral palsy and a reduction in babies dying in labour. She said that as of 2005 that had not happened and there had been no such reductions.

[43 ] Professor Murphy was taken through Mrs Lowe's nursing notes and the CTG chart in detail. She had of course seen the reports of the other experts and had sat in court during the evidence of Dr Valero. She understood that Dr Milne, Dr Smith and Evelyn Forrest each regarded the majority of the CTG trace reading as falling to be interpreted as pathological. Professor Murphy disagreed with this interpretation and explained that in her view the trace readings were pathological from 11.30 onwards. With the possible exception of the level of the baseline heart rate noted by Dr Black at 10.20 Professor Murphy stated that she agreed with the way in which the CTG features had been interpreted and noted in the nursing notes. Putting aside the 08.47 episode the readings in her view fell to be classified as suspicious using the NICE terminology. Looking to the period between 08.20 and up until the 08.47 episode Professor Murphy explained that there were variable decelerations with good variability and normal baseline heart rate. She explained that the significance of variability was that the heart was varying from minute to minute. Since the heart rate responded to messages from the brain, variability was a sign of an intact neurological system. Professor Murphy explained that with a pathological trace the concern is that the baby may be suffering from hypoxia. In that situation she said that the baby will mount defence mechanisms, one of which is tachycardia, an increase in the baseline fetal heart rate. If there is hypoxia she went on to say the first thing to be lost is variability. These were the reason, she explained, why she laboured the points of heartbeat and variability. In view of the presence in this section of good variability and normal baseline heart rate she explained that she would not be looking for any more subtle features.

[44 ] When it came to the 08.47 episode of bradycardia Professor Murphy stated that she thought Dr Valero's comment constituted an entirely reasonable explanation for the drop in heart rate. She explained that the two most likely explanations were that the head had descended rapidly or that there was compression of the cord. She went on to say that having seen what happened next she was confidant with these two explanations as the heart rate returns and subsequent acceleration are detected. Accelerations she defined as increases above the baseline heart rate by more than fifteen beats per minute for ten seconds or more. The presence of accelerations she explained is seen as a very reassuring sign. Professor Murphy's evidence was that in the few minutes after the bradycardia at 08.47 one could see an improvement in the trace with good baseline heart rate and good variability. There were accelerations and classic variable decelerations. Accordingly this portion of the trace would make her think that her original categorisation was correct, namely that the trace was suspicious and not pathological.

Fetal Blood Sample
[45 ] When it came to the question of how a competent registrar should respond to these readings Professor Murphy acknowledged immediately that thinking about a fetal blood sample would be a good idea. However she commented that the other experts appeared to be saying that there was only one option open to an obstetrician in this situation and that they appeared to be going as far as to say that one had to proceed to delivery if a fetal blood sample was not available. Professor Murphy's evidence was that in her view matters were not so simple. She explained that the advice contained within the NICE Guidelines contained an emphasis towards a conservative method but what was required was that the obstetrician and the midwife should practice intelligent care. She explained that a fetal blood sample, which is invasive, ought only to be taken if the benefits outweigh the risks and there is a realistic potential of gain for the mother and baby. Professor Murphy stated that the first thing to be done was to assess the mother's condition. The doctor would need to know how far on she appeared to be and he would want to see if there was any further information available by easy means, by checking the fluid for example. In Mrs Lowe's case it was clear that she was almost fully dilated. An attempt was made to rupture her membranes and although no fluid was seen, importantly there was no sign of meconium. In her case it was also relevant that the baby's head was quite far down. When asked to consider the approach which Dr Valero took to the question of what action needed to be taken in light of the 08.47 episode Professor Murphy's evidence was that his approach had been very similar to that of the average competent registrar on other labour wards. Professor Murphy amplified this assessment by saying that she herself had experience of working in maternity units in Dublin, Oxford, Bristol and Dundee and in all of these units it would have been very unusual to take a fetal blood sample at almost full dilatation in the case of a multi-parous patient who was showing rapid signs of progress. Professor Murphy made the point that if one did not regard the CTG trace reading as pathological but as being merely suspicious, then in terms of the NICE Guidelines all would be agreed that a conservative approach was sufficient. She explained that in her own ward if she just looked at this chart and did not attempt to classify it then in circumstances where delivery was imminent it would be acceptable for the registrar to watch with care. When asked to try and identify what she herself would have done in Dr Valero's shoes the Professor explained that she would like to think she would have taken a fetal blood sample but she might have, and still might even today, take the same view as Dr Valero had. She said that in 1999 and even in 2006 many registrars would manage the labour in the same way as Dr Valero had and that when she herself was a registrar in 1999 it was certainly possible that she would have done the same. For these reasons Professor Murphy rejected the suggestion that to fail to take a fetal blood sample at around 09.00 constituted negligent treatment.

[46 ] On the question of what any such sample would have shown if taken Professor Murphy stated that in her view the result of a sample you don't have is highly speculative. She also commented to the effect that she was surprised that other experts had given a view because in the profession they were constantly surprised at the results of fetal blood samples. However she said if she were pressed to give a view it would be that a sample taken around 09.00 would have shown a pH level within normal limits.

[47 ] In cross-examination on this matter Professor Murphy recognised that the prolonged deceleration at 08.47 was a matter of concern. However she sought to distinguish between counsel's proposition that the trace was thereby rendered pathological and her own description which was that there was a pathological event but that the trace fell to be re-classified to suspicious thereafter on account of the observed recovery. She explained the importance of this by pointing out that a prolonged deceleration persisting over two contractions was an event which was often seen. There were, she said, a number of causes for such an event, one of which was head pressure where labour is progressing rapidly and the head is moving. Another common explanation was that the woman was lying on her back. The point which she was making is that it is necessary to re-classify, if appropriate, otherwise there would be a risk of performing caesarean sections inappropriately. Professor Murphy also made the point in answer to counsel that a fetal blood sample was invasive and might be unnecessary. The mother required to be placed on her side or the lithotomy position for a few minutes. Her view was that all invasive procedures required to be justified. She also explained that there were technical difficulties in taking such a sample which might mean that it could not be properly analysed and would have to be repeated, all of which would increase anxiety. In her evidence this was a common problem which pushed obstetricians to think carefully about whether or not they needed to take a sample at that particular stage. She also sought to emphasise that for the medical profession it was not a matter of deciding not to perform a procedure but of deciding whether a particular procedure was necessary or not.

CTG Trace Readings After 09.00
[48 ] Professor Murphy was asked to give her view of what the proper interpretation of the CTG trace readings in the period after 09.00 and up until Dr Valero's review at 10.40. Her evidence was that in the period between 09.07 and 09.30 there were episodes of good variability and the decelerations were classical variable. Accordingly she would classify the trace as ongoing suspicious. Between 09.40 and 10.10 she recognised that the quality of the trace readings was poorer but in her view it remained adequate for interpretation. What to make of this section though she recognised was a different matter. Her evidence was that it was extremely difficult to see what the baseline was and therefore difficult to categorise. She described this section as being very challenging to interpret. She also recognised that around 09.40 to 09.50 there were four or five decelerations which caused her concern. She explained that the pattern at that stage did appear to be different from that seen earlier. She acknowledged that some of these appeared to be more prolonged. However she said that there was an ongoing difficulty in establishing the baseline at this stage and she would not wish to categorise the trace as pathological without knowing that. However she stressed that there remained good variability which reassured her and by 10.00 the previous pattern had returned and there was once again a steady baseline.

[49 ] In explaining her interpretation of this portion of the CTG trace readings Professor Murphy insisted that it was necessary to interpret the readings in the light of the clinical context. She pointed out that the nursing notes record Mrs Lowe as having rectal pressure and urges to push at 09.45. She explained that rectal pressure strongly suggests the head is descending and applying pressure on the pelvis. She said that when that happens you often see a drop in fetal heart rate baseline. In her view these readings ought not to be seen as showing a failure to return to the earlier baseline rate of 150. She also pointed out that they ought not to be interpreted as indicating hypoxia in light of her earlier explanation as to the mechanism by which a baby compensates for hypoxia, namely tachycardia. She said if the baby was hypoxic during this period she would expect to see a rise in the baseline. She also focussed on what she saw as the presence of variability in this portion of the trace readings, again indicating an intact central nervous system. In this regard she explained that she did not understand Dr Smith's view to the effect that one could see reduced variability. Furthermore by around 10.00 Professor Murphy was of the view that one could detect the presence of classic accelerations which would be interpreted as a very reassuring sign. Although Professor Murphy acknowledged that she had said that the period between 0940 to 1000 was challenging to interpret and that she herself had found it so, her view was that from just before 10 o'clock to 1010 the readings became much more clear. She explained that the baseline had returned to 150 beats per minute which she pointed out would not happen in a hypoxic baby. Her view was that in that period there were classic variable decelerations, there were clear examples of accelerations and there was good variability. Accordingly the foetus was in good condition or certainly coping with labour.

10.40 decision
[50 ] In examining the decision taken by Dr Valero at 10.40 Professor Murphy explained that one also required to take into account what had happened a little earlier. She made the point that the ward Sister had performed an examination at 10.10 and had placed Mrs Lowe onto the left lateral position and encouraged her to push. Accordingly the Sister had already made the decision that delivery should be expedited. When Dr Valero arrived at 10.40 the information available to him was that the baby's head was in the Direct Occipito Anterior position, as it had been throughout and now at the ischial spines +1 position. Further he would see from the notes that she had been actively pushing since 10.25. When Dr Valero reviewed the CTG trace readings he did not identify any features which were inconsistent with the previous readings. In that regard Professor Murphy said that her own view was the same. Accordingly the context in which an obstetric decision had to be made was that the mother had delivered naturally before, she had progressed rapidly in labour, she was fully dilated, the head was in a favourable position and she had been actively pushing for about fifteen minutes. Professor Murphy said that in her view there were three options available within accepted obstetric practice. They were as follows:

1. To say that the woman is capable of delivering vaginally by forceps or vacuum. There has been a suspicious CTG for a number of hours and accordingly the obstetrician is going to proceed to instrumental delivery.

2. To say that she has made excellent progress, has delivered naturally before and the tracing is no worse than it had been. The obstetrician might allow a further short period of pushing. This has the advantage of a possible normal delivery very quickly or may make an instrumental delivery easier.

3. For the obstetrician to stay in the room and be ready to intervene if the trace deteriorated.

Professor Murphy said that all options were entirely acceptable. However, she explained that if the second is chosen the obstetrician must set a time limit and arrange to return and review if the woman has not delivered naturally. In addition, it would need to be clear between the obstetrician and the midwife, that if there was any deterioration in the trace readings the doctor would have to be brought back. When asked to comment on the suggestion that it might be negligent for Dr Valero having set the time limit of fifteen minutes to then not return until 11.15, Professor Murphy said that she would not consider this to constitute negligence as delays are not infrequent on account of the challenge in treating seven to ten other patients.

[51 ] When it came to an examination of what had gone wrong in Mrs Lowe's labour Professor Murphy responded by explaining firstly, that the delay in delivery in the second stage could only be as a result of the baby being in an abnormal position or attitude, in other words facing the wrong way and tilted incorrectly. Accordingly in her view Dr Valero was correct in the assessment as to position which he made in his examination. Secondly, she gave an account of what she understood to be occurring as evidenced by the final period of CTG trace readings. She explained that one could see a dramatic change in the trace readings from 11.29 onwards. There was she said a marked change in a number of the features, such as a complete loss of variability and an inability to determine the timings of the decelerations. At about 11.41 there was a profound bradycardia. Professor Murphy explained that she found this to be a very unusual decline in trace features in that it went very quickly from a trace with a suspicious pattern with reassuring features to a pattern which was pathological on a number of grounds and culminated in a pre-terminal bradycardia. Her view was that this was a very dramatic change in a very short interval which is not what one would expect with a normally grown baby. She thought that even the extent of the pathological section before the pre-terminal event was very short. In the case of a healthy baby who was developing hypoxia she explained that one would expect to see a pattern of progressive change. In other words one would expect to see a movement from suspicious to pathological with one criterion classification and compensating mechanisms. Over time she said that one might see additional features if you allowed nature to take its course before the ultimate bradycardia. The explanation she said was provided after birth when it was discovered that baby Kieran had severe growth restriction, had a heart defect and that the placenta had multiple infarcts. The significance of all of this was that severely growth restricted babies have a very limited ability to withstand hypoxia. This pattern she said explained to her why a baby which appeared to be coping with the stress of labour until 11.29 had a dramatic and pathological deterioration in such a short space of time. In this context she also went on to say that she did not believe that a severely growth restricted baby could sustain a pathological trace over a period of hours. She felt that this view also served to underpin her own assessment of how the CTG trace readings ought properly to be interpreted.

Cross-examination
[52 ] In cross examination Professor Murphy was subjected over a period of three days to a rigorous and searching examination of all aspects of her evidence. In relation to the taking of a fetal blood sample she explained her view that if a sample was to be taken it would be the normal practice to wait for about twenty minutes to allow the fetal heart beat to stabilise and thereby provide a fair representation of the condition of the foetus. In this context she explained that if the variability was good and the heartbeat returned to baseline within this period this would demonstrate the presence of reassuring features which would lead the obstetrician to question whether the sample was in fact necessary. On the general question arising out of the interpretation of the CTG trace readings she made the point that variable decelerations were frequently seen in labour. Although she was taken in detail through the readings in this case by Mr Mitchell she insisted on her view that good variability was present throughout and she declined to accede to his suggestion that one could see a progressively rising baseline. In her view the decelerations which were present throughout the period from 09.40 until 10.00 were variable decelerations and not atypical variable decelerations. She did however acknowledge that since the period between 09.40 and 10.00 was difficult to interpret she could see why others would describe the decelerations differently.

[53 ] Professor Murphy explained to Mr Mitchell that in the second stage of labour the management always requires to be tight. She also agreed with him that in Mrs Lowe's case there were background concerns because of the CTG trace readings which had preceded the decision. When asked how she would define a "short period" for the purposes of continued pushing Professor Murphy said that that it was difficult to say and it would depend upon how busy the ward was. The way she put it was to say that the fifteen minutes chosen was reasonable. She agreed that if a time had been set the obstetrician should return at that time. When Mr Mitchell asked if a failure to return within that period would constitute negligence, Professor Murphy's answer was that it would not, but it would require to be accounted for. She volunteered that the doctor may be called to do something else and that he clearly cannot leave a crisis or other lady of greater importance. Professor Murphy's view was that the midwife had continued with appropriate care prior to Dr Valero's return. It would be perfectly normal, she said, for the midwife to attempt alternative manoeuvres if the woman was becoming tired. She made the point that it is common for women in labour to be tired or demoralised. She would only expect the doctor to be called back prior to the expiry of the time set if the CTG trace readings deteriorated. However she did also acknowledge that she would expect the midwife to seek out another member of staff once the time set had expired with no sign of the obstetrician.

[54 ] On the matter of the timing of Dr Valero's return Professor Murphy became quite adamant that he must have returned earlier than 11.15. She explained that when she first looked at the medical records she thought this had been his time of return. However she now felt that it was clear from the CTG trace readings that this view was incorrect. Her explanation for this was that there was only minimal loss of contact at 11.15 which, she said, was not consistent with a vaginal examination occurring at that time, whereas the CTG trace readings at 11 o'clock and following were consistent with such an examination. The way she came to put it to Mr Mitchell was to say that if one looks back to between 11 and 11.10 and compared that portion with the portion at 11.15 and afterwards it is more likely that the examination took place between 11 and 11.10. Professor Murphy thought that this view was consistent with the entry recorded at 11.15 of consent for trial by forceps on the understanding that this would indicate the examination had been completed prior to that entry being recorded.

Professor Calder
[55 ] Professor Calder had held the post of Professor of Obstetrics and Gynaecology at the University of Edinburgh since 1987. In conjunction with this post, as with Professor Murphy, he carried out clinical duties, in his case as Honorary Consultant at the Simpson Centre for Reproductive Health within the Edinburgh Royal Infirmary, where he was a colleague of Dr Milne. Professor Calder had held a variety of previous academic and clinical posts both in this country and abroad. Throughout his years of research and clinical practice Professor Calder has come to develop a particular expertise in the area of the use of prostaglandins in therapeutic abortion, cervical ripening and labour induction. He appended to his CV a list of some twenty nine recent publications (between 1996 and 2006) in his fields of interest. Professor Calder began his evidence by acknowledging that he had seen the reports prepared by Dr Milne and Dr Smith. He agreed with counsel that the criticisms which they voiced in these reports appeared to be based on their individual interpretation of the CTG trace readings which they had been provided with. Professor Calder explained that electronic fetal monitoring had been routine in most maternity services since the late 1970's but that the experience of its use had been accompanied by a degree of controversy. He explained that this arose out of a feeling of disappointment within the profession at what was initially seen as the dawn of a new age of technology which was going to transform obstetrics but turned out to have little positive impact on the practice of intrapartum care. He explained that the problem was that what is obtained is simply a continuous record of the heart rate, which varies, and although the various hazards which babies can be subjected to, such as hypoxia and asphyxia, are associated with changes in the fetal heart rate there were also other reasons why the fetal heart rate might vary during the course of labour. The difficulty for the clinician is that in seeking to identify signs of trouble he or she has to draw on their own assessment made by looking at the tracing. What the clinician is looking out for, he explained, is slowing of the fetal heart rate as an acute episode and also the pattern of fetal heart rate from moment to moment in what is called variability. In this exercise Professor Calder laid stress on the clinician's assessment of the presence of variability. The reason for this he explained was that a healthy baby will vary its heart rate in response to different stimuli and there are a number of influences which will cause the fetal heart rate to slow, the most important of which, he said, was compression of the baby's head in the later stages of labour. He also pointed out that the observation of a change in the fetal heart rate on a CTG trace was not the same as other tests and observations in medical practice. It was merely a pointer to the fact that something might or might not be happening. In this context he explained that it was necessary to keep in mind that labour was to an extent a naturally hypoxic event for the foetus. He explained that labour constituted a threat by virtue of the process of uterine contraction, which although designed to open up the uterus and allow the baby to be delivered, also increased the pressure within the uterus. The consequence was that to a degree this impaired the circulation through the placenta. The effect could be to produce hypoxia. Because each contraction was normally separated by a period of uterine relaxation the short term impact on fetal circulation ought not to have any deleterious effect. Sometimes however the process can cause trouble, particularly if the baby does not have sufficient reserves of energy to cope with the situation of hypoxia. He explained that as a consequence of the limitations present, the major source of criticism of the technology over the years has been that frequently the evidence was misinterpreted, leading to more interventions which with hindsight prove to have been unnecessary. The effect of this had been an increase in the rate of caesarean section and forceps delivery, to no particular benefit.

[56 ] Professor Calder was also able to give an insight into the creation of the NICE Guidelines. He explained that around about the year 2000 guidelines into two subjects were being prepared by the Royal College of Obstetricians and Gynaecologists as a commission from the Department of Health. One was on the topic of the use of electronic fetal monitoring and the other was on the induction of labour. Professor Calder had chaired the guideline group on the later topic. In due course the National Institute for Clinical Excellence became established and adopted the work of these groups which was then published under the auspices of the new organisation. Counsel took Professor Calder to one of the stated aims within the NICE Guidelines, which was:

"to evaluate methods for improving interpretation of CTG and the development of standards for training and evaluation of fetal heart rate patterns."

This was thought necessary he explained because at the time the way that the information obtained from CTG trace readings was used was extremely variable and there was a wide spectrum of view as to what constituted evidence of trouble. As with the other witnesses Professor Calder was taken through the areas of contention in the present case.

CTG Trace readings between 08.21 and 0900.
[57 ] Professor Calder began his assessment by expressing the view that variability in the first section of the CTG trace reading was normal and explaining why. He was referred to Dr Smith's view that variability was equivocal and explained that he would not agree with this assessment. In relation to the decelerations present at this stage Professor Calder's view was that these would not be categorised by him as atypical variable decelerations. Rather he saw the trace as showing decelerations which were difficult to judge at that very small snapshot at the beginning of the process. When asked to respond to Dr Smith's view that the trace even at this stage fell to be categorised as pathological he said that he would view the trace as showing adequate variability, a baseline within the normal range and decelerations which themselves might be entirely innocent. In his view one could see that the zenith of the decelerations were in line with the height of the contractions and accordingly suggested that they were the result of skull compression at the height of the pressure of the contraction. Accordingly he rejected the categorisation which had been applied by Dr Smith and went on to say that looking to the readings up until about 08.45 he would describe this as a trace which would not cause him any particular concern. He emphasised this by saying that from 08.35 onwards he would view this trace as really rather healthy looking. Putting the matter another way, he said that the trace from 08.35 onwards was quite innocent and the sort of trace which one would expect in the first stage of labour.

[58 ] When it came to an examination of the 08.47 episode Professor Calder of course recognised that the trace reading did demonstrate a single prolonged deceleration. When asked to consider the description of the event made in the nursing notes by Dr Valero, Professor Calder expressed the view that the record constituted an entirely reasonable description of what could be seen. He made the point that although compression of the head, as a consequence of a contraction alone, was unlikely to cause the sort of slowing of the heart beat observed, when the baby's head begins to descend into the pelvis and becomes wedged there then compressing forces of a different nature come to operate on the skull. Professor Calder explained that in his view in the period of the trace after the baseline heart rate had returned one could see a good recovery with good variability and decelerations which coincided precisely with the peak of the associated contractions. Professor Calder's view was that the decision made at this stage by Dr Valero was not in any sense out of line with the way in which the information available would have been interpreted in many units up and down the country. He expanded upon this by saying that he had seen this sort of tracing in his own clinical practice and in reviewing other cases and it was not at all outwith the standard response to find that this degree of abnormality did not prompt a fetal blood sample. What was relevant to bear he mind he explained was that the nursing and medical staff would be treating this patient as a mother with a impeccable obstetric history in her previous pregnancy who had made rapid and efficient progress in the present labour to this advanced stage. In these circumstances the reasonable expectation would be that delivery would occur comparatively soon. In this context he explained that even where babies are being subjected to pathological stresses and their biochemistry may be beginning to become disordered a normal baby will have substantial reserves. This means that even with much worse looking traces than was being considered at about 09.00 the commonest experience is that the baby will be delivered soon and in perfectly good order. Professor Calder made the point that what is seen at 08.47 is a developing situation and once an abnormality appeared it would not necessarily persist or remain unaltered. He explained that this raises the sort of difficulty for a clinician which he himself had seen many times as he observed a CTG trace reading showing a feature of concern which then recovers. In such a situation he explained the clinician has to make a decision as to whether it is appropriate to respond or not to. For all of these reasons Professor Calder's view was that had he himself been in Dr Valero's shoes he would not have performed a fetal blood sample at that time. He made the point that as part of the process of clinical judgement one would have to bear in mind that the procedure involved was an awkward and difficult one which is extremely uncomfortable for the mother. In his view it was not a procedure which ought to be embarked upon without good justification and particularly if one was expecting the problem to be over fairly quickly. As with everything else in medicine this procedure required clear justification. As to what a fetal blood sample would have shown if taken at this stage Professor Calder's view was although one knew that the baby was born some considerable time later with clear evidence of hypoxia and asphyxia. the point at which that became measurable was pure speculation.

CTG Trace readings from 09.00 onwards
[59 ] Professor Calder was asked to consider the views of Dr Smith relating to the period after 09.00. It was pointed out that his view was that "by 09.10 it is obvious that baseline variability is reduced". Professor Calder's view was that the variability was normal. He went on to say that looking over even the next hour he would find it hard to see a point where there was not a reasonable degree of variability. Nor did Professor Calder agree with the view that the decelerations present between 09.00 and 09.40 ought to be described as atypical variable decelerations. He explained that he would be very much more inclined to describe them as early decelerations, or as time moved on, as decelerations which were difficult to interpret on account of a loss of contact. By the stage of 09.50, his view was that although there were readings of concern, they would not be characterised as definitive of sinister impact. Although Professor Calder recognised that the readings at this section were clearly not innocent, the point which he sought to make was that clinical judgement would be influenced by what followed and during the recovery the trace looked quite healthy, with, in his view, the decelerations being interpreted as the common type which are seen in the advanced stages of labour. In this context he was of the view that the entries made by nursing staff describing the readings were all accurate and appropriate. In the period between 10.10 and 10.25 although Professor Calder recognised that the quality of the trace readings was poor, his opinion was that such information as it did convey was not sinister. He pointed out that the baseline was in the normal range and that variability was of very good quality. In the same vein he disagreed with the suggestion that the period between 10.40 and 11.10 was un-interpretable. In his view between 10.40 and 11.00 the trace readings were very similar to the earlier section with the baseline and variability both being seen, along with an indication of where there appeared to be decelerations.

10.40 decision
[60 ] In considering the circumstances of Dr Valero's decision made at 10.40 Professor Calder's evidence was, firstly, that he saw no reason to criticise the description of the CTG trace readings which he had made in the nursing notes at this time. Although he had correctly noted the presence of persisting variable decelerations Dr Valero had been reassured by the presence of good recovery and good variability. This, he said, led Dr Valero to judge that there was no indication to do anything other than anticipate a normal delivery would follow soon afterwards. He explained that in the case of a woman who had previously given normal spontaneous birth, the majority would deliver within twenty to twenty five minutes from full dilatation, although he recognised that one can never tell what will happen and it could be as long as an hour. The choice for Dr Valero was between watchful waiting and intervening to deliver the baby. With hindsight Professor Calder said it was clear which option should have been followed but he rejected the suggestion that Dr Valero's decision constituted negligence. It was, he said, the sort of decision which would not uncommonly be made in good quality hospitals up and down the country and was an exercise of judgement made on the basis that the baby would deliver spontaneously in the very near future.

[61 ] Professor Calder also rejected the suggestion that it was negligence on the part of Dr Valero not to return until some time after 11.00. He did not see it as negligence even if Dr Valero had not returned until 11.15. He explained that in giving this view he took account of the responsibilities which Dr Valero carried as the registrar in charge of the labour ward and the fact that Mrs Lowe was being treated in the low risk unit. His opinion was that other factors could easily have conspired to require his attention and affect the timing of his return. In so far as a return at 11.15 was concerned Professor Calder's view was that that would be within the sort of bracket of time which would have been Dr Valero's intention. He explained that in Dr Valero's position he would have chosen a longer period and would have wished to review within half an hour of 10.40. On the matter of whether there was any information available on the CTG trace which might assist in identifying when Dr Valero returned Professor Calder was asked to consider the nature of the vaginal examination which was performed. Although he stressed that one could certainly not be dogmatic about the matter Professor Calder explained that he would opt for the period between 11.00 and 11.10 rather than the period after 11.15. This was on the basis that an obvious and sudden change can be seen on the trace in the former period whereas after 11.10 it improves a little and remains generally the same thereafter until about 11.30. On this basis he saw no evidence of an examination occurring in the period after 11.15.

Pursuer's Submissions
[62 ] Mr Mitchell presented submissions on the pursuer's behalf over a period of about four and a half days. These included an examination of the legal principles which he asked me to apply and detailed references to the evidence which had been led. Mr Mitchell's references to the evidence included a full analysis of the way in which he suggested I ought to view this testimony and why. I was grateful to him for the considerable assistance with which I was provided by virtue of this exercise.

[63 ] Counsel for the pursuer referred me to the following cases in relation to the test for negligence and the way in which I should apply that test to the evidence: Hunter v Hanley 1955 SC 200, Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, Wong (Edward) Finance Co. Ltd. v Johnson Stokes and Masters [1984] AC 296, Bolitho v City and Hackney Health Authority [1998] AC 232 and Honisz v Lothian Health Board and others [2006] CSOH 24. He also referred me to the following cases by way of example as to how these tests had been applied in particular circumstances: Reynolds v North Tyneside Health Authority [2002] Lloyds Rep Med 459 and Marriott v West Midlands Health Authority and Others [1999] Lloyd's Rep Med 23. In taking me through this line of authority Mr Mitchell stressed that it was important to take note of the way that the law had developed. So whilst he recognised that the principal test was as laid down by Lord President Clyde in Hunter v Hanley, he was keen to emphasise that the import of the decision of the House of Lords in Bolitho was that I was required to examine the opinion evidence given by the defenders' experts in order to see whether any practice which they described as acceptable was in fact reasonable or responsible in the circumstances. In this exercise he submitted it would be important to examine whether they had given adequate, or any, consideration to the assessment of risks against benefits.

[64] Mr Mitchell identified three specific allegation of fault, each of which he contended could be seen as independently resulting in the loss injury and damage sustained by Kieran Lowe. They were as follows:

1. At his 08.55 visit to Mrs Lowe Dr Valero failed to obtain a fetal blood sample in the face of a CTG trace reading which was obviously and indisputably pathological.

2. Dr Valero and the midwifery staff failed to properly manage Mrs Lowe's labour between 08.55 and 10.40 in various ways which Mr Mitchell went on to itemise.

3. Having decided to allow Mrs Lowe to continue with labour at 10.40, Dr Valero failed to return to perform a review within 15 minutes. In addition, under this heading, Mr Mitchell advanced a subsidiary argument that having returned, Dr Valero failed to take a decision regarding assisted delivery until 11.25.

Mr Mitchell explained that upon a consideration of all of the circumstances which had emerged in evidence he no longer sought to insist upon the ground of fault averred on record in relation to internal monitoring of the fetal heartbeat. I shall attempt to summarise the arguments presented by Mr Mitchell in support of each of his contentions.

The First Ground of Fault
[65 ] Mr Mitchell's introduction to the argument in support of the first ground of fault identified was to explain that the starting point was the proper interpretation of the CTG trace from 08.21 to 08.55 and then to examine what the acceptable response to such a reading would have been on the part of a reasonably competent and diligent registrar acting with due diligence in the circumstances according to the standards of clinical practice in 1999. Mr Mitchell's argument was advanced on the premise that all of the relevant witnesses accepted that the CTG trace reading over the period from 08.21 to 08.55 fell to be regarded as pathological. In this context Mr Mitchell submitted that confronted with this CTG trace reading at about 09.00 the appropriate course was to obtain a fetal blood sample in order to establish the fetal acid base status. He submitted that this view was clearly established on the evidence of the experts who had been led on the pursuer's behalf. Mr Mitchell expanded this submission by referring to the evidence of Dr Milne, who had said in evidence in chief that the failure by Dr Valero to take a fetal blood sample at around 08.55 fell below the standard of care to be expected of a reasonably competent registrar acting with the appropriate skill and care. Mr Mitchell reminded me that Dr Milne had vouched his opinion by reference to the terms of the NICE Guidelines and to the standards of good practice in 1999. He reminded me that Dr Milne had rejected the suggestion put to him in cross-examination that the interpretation of CTG trace readings was an imprecise science, as he had the suggestion that little use was made of fetal blood samples in 1999. He reminded me that the approach of Dr Milne had been to emphasise the benefits of obtaining a fetal blood sample, in that further information as to fetal well being would be obtained, rather than to approach the matter from the question of what deleterious consequences might be associated with the decision to obtain such a sample. In Dr Milne's view there were no identifiable disadvantages associated with obtaining such a sample, beyond a degree of discomfort to the mother. In particular Mr Mitchell relied upon the evidence from Dr Milne that it would not be acceptable to delay the taking of a fetal blood sample on the assumption that the mother would deliver the baby in a short period of time.

[66 ] Mr Mitchell also relied in support of this first ground of fault on the evidence of Dr Smith. He founded upon the evidence given by Dr Smith, as reflected in his report number 6/17 of process, that the CTG trace readings between 08.21 and 08.55 fell to be viewed as pathological. He founded upon the fact that Dr Smith's view was also that a fetal blood sample required to be taken or instructed by Dr Valero at his 08.55 visit. He reminded me that Dr Smith, like Dr Milne, dismissed the suggestion that a doctor in such circumstances might legitimately delay or decline to take a fetal blood sample on the understanding that the baby would shortly be born. Again Mr Mitchell reminded me that in Dr Smith's testimony there was no reason not take such a sample. In Dr Smith's view failure to take such a sample in the circumstances under discussion fell below the standard of care to be expected of a reasonably competent registrar acting with the appropriate skill and care.

[67 ] Mr Mitchell also sought to place some reliance on the evidence of Mrs Evelyn Forrest. Although she was not qualified in medicine Mr Mitchell submitted that Mrs Forrest had extensive knowledge of intrapartum care and extensive experience in the interpretation of CTG trace readings. He asked me to take account of her evidence as to how the CTG trace readings ought to have been interpreted in the period 08.21 to 08.55 and what action ought to have been taken as a consequence. Mr Mitchell explained that although he would not be inviting me to conclude that negligent obstetric conduct had been established on the basis of Mrs Forrest's evidence he did invite me to regard her evidence as being consistent with that of Dr Milne and Dr Smith and accordingly to see her evidence as providing further confirmation of their testimony.

[68 ] Mr Mitchell sought to further underpin the submission he advanced by referring to certain of the factual evidence. He pointed out that on the evidence of Midwife Nairn she had no doubt about the importance of the prolonged deceleration at 08.47, nor of the need to call for the assistance of medical staff. The machinery for undertaking blood analysis was readily available in the hospital and easy to use.

[69 ] Mr Mitchell also undertook an analysis of the testimony of Dr Valero in relation to this ground of fault. He submitted that his actions were based on a misinterpretation of the CTG trace readings, a misunderstanding of the significance of the features being displayed on the trace and a mistaken understanding of what actions were required of him by way of response to such readings. Mr Mitchell submitted that on a proper understanding of the evidence given by Dr Valero he did not understand that the proper course in the circumstances was to take action to address the possibility of fetal hypoxia. Mr Mitchell submitted that it was clear on his evidence that at no stage was his care driven by a concern for possible fetal hypoxia. Mr Mitchell submitted that it was clear on the evidence of Dr Valero that when he came to examine the prolonged deceleration at 08.47 he came to a view as to what had caused it. Having done that, when he saw it as returning to baseline, he took the view that it was no longer an operative event. In seeking to vouch this analysis Mr Mitchell took me through a detailed analysis of the evidence given by Dr Valero. He reminded me that the reason for Dr Valero examining the CTG trace at about 08.55 was that he had been asked to confirm the cause of the deceleration and look for confirmation of satisfactory progress. In seeking to argue that Dr Valero had failed to properly interpret the CTG trace readings Mr Mitchell pointed to Dr Valero's evidence that it was very common to have isolated decelerations and that this one recovered as many others had. He pointed out that he had said that the cause of the deceleration was no longer present, that the baby's head had descended and that good progress was being made. His explanation had been that the most probable cause for the deceleration was head compressions because of the head moving down into the pelvis. On Dr Valero's account there were no worrying signs and the labour was progressing very quickly. Mr Mitchell said that Dr Valero had rejected the suggestion that he ought to have taken further steps to ascertain the well being of the baby, saying that it was an isolated event which he had understood. For this reason said Mr Mitchell Dr Valero had concluded that it was not necessary to find out more about the baby. Nor, he reminded me, had Dr Valero been willing to agree that the CTG trace was showing a non-reassuring pattern up until the prolonged deceleration when it became pathological. On Dr Valero's assessment of the CTG trace readings the variability had been perfect and five minutes before the bradycardia the trace had been reassuring. He thought that it was common to see variable decelerations when labour was progressing quickly and that the whole picture was reassuring. All of these comments demonstrated that he had not properly interpreted the readings said Mr Mitchell.

[70 ] In arguing that Dr Valero had not understood the dangers which might be indicated by such readings Mr Mitchell said that Dr Valero had stated that according to his understanding variable decelerations were not an indication of the presence of hypoxia but that they might lead to hypoxia. He stated that the bradycardia was not an indication of hypoxia as there had been a recovery. He said that a prolonged bradycardia with no recovery was a sign of hypoxia. Whilst acknowledging that variable decelerations were present and that a prolonged bradycardia had been observed, Dr Valero's position had been that he took other factors into account as well, such as variability and the presence of an acceleration. Having done this he arrived at the view that the cause was head compression. Mr Mitchell submitted that Dr Valero had accepted that the trace reading at about 08.55 was not a healthy trace and had accepted that some aspects of it might indicate that it was pathological but still claimed that the wellbeing of the baby was not causing much concern. His position had been that this was not the trace of a hypoxic baby. Dr Valero's position had been that he would react to the trace differently depending upon the stage of the labour. All of these comments demonstrated a failure to properly appreciate the dangers said Mr Mitchell.

[71 ] For these reasons Mr Mitchell submitted that Dr Valero's reasoning had been clear. He did not believe that the CTG trace reading merited the taking of a fetal blood sample. He believed that he understood what had caused the bradycardia and that it was no longer a concern. The importance of understanding Dr Valero's evidence in this light submitted Mr Mitchell was this. Firstly his account of what he did and why was seen to be entirely at odds with the account given by the pursuer's experts as to what would have constituted appropriate care in the circumstances. It followed from this appreciation that Dr Valero's reasoning did not receive support from the evidence of either of the expert witnesses led by the defenders. This was obvious, he submitted, when one examined the testimony given by each of these witnesses. By way of explanation Mr Mitchell invited me to examine various passages of the evidence elicited in cross-examination of Professor Calder. He submitted that when the evidence of this witness was properly understood a number of matters became clear. Firstly, Professor Calder recognised that the thirty minute passage of CTG trace reading leading up to 08.50 was indisputably pathological. Secondly, he recognised that it would have been in the best interests of the mother and the foetus for a sample to have been taken. Thirdly, in his view it would have been beneficial for the management of the labour to have done so. Fourthly, Professor Calder identified no adverse consequences associated with taking such a sample. Fifthly, in his opinion it showed poor judgement not to have done so. Accordingly Mr Mitchell submitted that on a fair reading of this testimony Professor Calder accepted that in the circumstances facing Dr Valero at 08.55 good clinical practice indicated that a fetal blood sample ought to have been taken. Set against this it was important, he submitted, to appreciate that Professor Calder did not advance an alternative course of reasonable medical practice which would be open in these circumstances and was also an option which could withstand logical analysis. According to his submission all that Professor Calder did say was that other medical practitioners would not have obtained a sample either. This was insufficient said Mr Mitchell to meet the test as set out in the case of Bolitho to which he had drawn my attention.

[72 ] For the same purpose Mr Mitchell referred at this stage of his submissions to various passages from the evidence of Professor Murphy. Again Mr Mitchell concentrated on passages elicited in cross-examination, explaining that the full picture of Professor Murphy's position in relation to the reading of CTG traces and as to how the passage of trace between 08.21 and 08.55 ought to be categorised only really emerged during his own questioning. Mr Mitchell's analysis of this aspect of Professor Murphy's evidence commenced with the submission that she had viewed the CTG trace readings for the period between 08.21 and 08.55 as pathological. He reminded me that the Professor had acknowledged the advice given in the NICE Guidelines as to the action to be taken in light of a trace reading which fell to be so classified. He also reminded me that she had explained what the benefit of taking such a sample would be, namely the provision of information about fetal well being. Mr Mitchell of course also recognised that Professor Murphy had sought to identify the presence of what she considered were downsides to taking such a sample. He reminded me that she had said it may be an unnecessary invasive intervention. It may be, she said, that the woman is likely to deliver very soon and it would be safe to continue monitoring. Mr Mitchell's argument was that if other clinical indicators pointed towards taking a sample, and this was consistent with good practice, then the Professor's explanation withstood no logical examination. This was all the more obvious since even she agreed that it was not possible to predict with any certainty the time within which delivery would occur. The downside of mere inconvenience, or discomfort to the mother would certainly not be sufficient to weigh against the advantages to be gained, he submitted.

[73 ] Mr Mitchell's submission was that both Professors Murphy and Calder had accepted the proposition that good clinical practice indicated that in the circumstances present at 08.55 the appropriate course would have been to take a fetal blood sample or to deliver the baby. In looking to what they said might constitute an acceptable alternative course of action it became clear, he said, that they had both made an important error. When expressing a view as to the proper management of the circumstances both had assumed that Dr Valero had recognised that the trace was obviously pathological, that he was aware of the seriousness of the situation and that he knew what course of conduct good practice required. With this understanding of Dr Valero's conduct each was prepared to contemplate not taking a fetal blood sample but to see how matters developed in the anticipation that the baby was about to be delivered. This was an important error he submitted when one came to realise that Dr Valero in fact thought that the prolonged deceleration had resolved and required no further investigation. The outcome of the examination of the testimony of Professors Murphy and Calder resulted in two conclusions on Mr Mitchell's analysis. Firstly, it could be seen that the course of conduct contemplated by these witnesses as reasonable in the circumstances was incapable of withstanding any logical analysis. Secondly, and in any event, the support preyed in aid by the defenders from these witnesses was of no value as it was predicated upon a different factual basis from that which influenced Dr Valero.

[74 ] Mr Mitchell concluded his arguments on his first ground of fault by making various submissions on the question of causation. His submission was that I should come to the view, on the balance of probabilities, that had a fetal blood sample been taken at around 09.00 it would have been in the low normal range and might well have been outwith the normal range. Had this been observed, his submission was that the medical staff would have expedited delivery and baby Kieran would have been delivered well before the period during which he suffered serious cerebral damage. In advancing this submission Mr Mitchell relied on the combined evidence of Dr Milne and Dr Stenson. In looking to the testimony given by Dr Milne on this matter Mr Mitchell commenced by reminding me of the way he had expressed his opinion in his report number 6/11 of process at page 4. There, referring to the examination a little after 9am by Dr Black, Dr Milne said:

"On the balance of probabilities I believe that had the fetal pH been assessed at this stage it would at best have been in the low normal range and may well have been outwith the normal range".

Mr Mitchell submitted that Dr Milne arrived at this view as a consequence of bringing together various factors, the history of the CTG trace reading up until 08.47, the presence of the earlier bradycardia detected by midwife Nairn using the sonic aid device and the prolonged deceleration at 08.47, which in his view was strongly indicative of fetal hypoxia. Accordingly, said Mr Mitchell, it was clear that the serious CTG signs seen by 08.55 were no coincidence and were, as Dr Milne had said, indications of developing hypoxia such as to entitle me to hold on the balance of probabilities what the result of a sample would have shown. In founding on the evidence given by Dr Stenson Mr Mitchell took me to the terms of his report number 6/27 of process at page nine where he stated:

"The obstetric reports in this case collectively suggest that there were several hours of CTG abnormality in this case prior to the last 30 minutes of the labour where there appears to be reasonable agreement that the trace had become very ominous. It is difficult to tell because of the poor CTG contact but there appears to be persisting bradycardia indicative of circulatory collapse from shortly after 11.40hrs. It is most likely that permanent brain damage developed close to this time and worsened from then until delivery. If fetal blood samples had been done earlier they would probably have shown acidosis and if so, this would have prompted the obstetric team to expedite delivery".

Mr Mitchell reminded me that Dr Stenson had explained how he came to this view. He had said that the CTG trace readings had been normal on admission. The probability of acidosis when the CTG trace readings are normal is very low. Baby Kieran was dead at birth with severe acidosis which must have developed over the intervening period. He said that hypoxia develops over a period of hours and although in many cases where the CTG trace readings are abnormal there will not be acidosis, it must have been developing in this case by virtue of the level present at birth. Dr Stenson had said that in this case the CTG traces were describing the process of deterioration.

The Second Ground of Fault
[75 ] Mr Mitchell commenced submissions in support of his second ground of fault by setting out a formulation of what he described as the allegation made. He explained that it was an allegation of fault against the defenders' staff who were responsible for the management of the labour, both obstetric staff and midwifery staff. He explained that the allegation made was that Dr Valero and midwifery staff failed to properly manage Mrs Lowe's labour between 08.55 and 10.40. He then identified four specific complaints made as to the care provided.

1. They failed to respond properly to an abnormal CTG trace which was indisputably pathological between 08.21 & 08.55 and between 09.30 and 10.40.

2. They failed to ascertain the fetal acid base status during this time

3. They failed to take steps to deliver the baby following upon diagnosis of full dilatation at 10.10.

4. They failed to take steps to deliver the baby following upon the medical review at 10.40.

In these ways Mr Mitchell submitted the management of Mrs Lowe's labour fell below the standard of skill to be expected of a reasonably competent and diligent registrar and that of reasonably competent and diligent midwifery staff acting with due diligence in the circumstances. In developing these submissions Mr Mitchell sought to set out the factual framework by relying on the evidence of midwife Nairn. He made the point that she was the only witness who was able to observe the developing labour throughout this period. Dr Valero's next contact with Mrs Lowe after about 09.00 was at his 10.40 visit. He took me through a detailed examination of her evidence as to the care provided to Mrs Lowe during this period under reference to Mrs Nairn's somewhat limited recollection and by reference to the entries which she and Sister Tutt had made in the nursing notes.

[76 ] Mr Mitchell's submission was that the CTG trace readings continued to cause concern and it was clear from the evidence of midwife Nairn that particular concerns arose out of the trace during the periods 09.40 to 10.10. He said that this was clear from the entries which were made in the nursing notes at 09.45, 10.00 and 10.05. The last of these entries recorded the fact that Sister Tutt had been asked to review the trace readings at midwife Nairn's request. Sister Tutt in turn performed an internal examination and noted that medical staff were to be asked to review the CTG. Mr Mitchell noted that this was the second time since the commencement of continuous electronic monitoring that the midwifery staff had sought a review of the readings by medical staff in light of the concerns which they had as to what was being observed. Mr Mitchell laid stress on his comment that the importance of the CTG readings in this period could not be overestimated. He reminded me that every expert witness agreed that this was a very concerning passage of the CTG trace. Mr Mitchell submitted that on the evidence of midwife Nairn she herself had concerns as to the progress of the labour by 10.10. She had said that Mrs Lowe was getting quite sore and tired and had already started involuntary pushing. As time went on further concerns as to the CTG trace readings arose. Midwife Nairn had explained that during the period from about 10.10 until 10.20 the quality of the reading was so poor that very little information was available. Mr Mitchell invited me to see that on midwife Nairn's evidence she had a number of concerns by the time of Dr Valero's visit at 10.40. She had said that Mrs Lowe's pushing had not been very effective, there had not been much by way of progress and the variable decelerations continued. Mr Mitchell said that midwife Nairn's evidence had been that she had been hoping for a decision to be made about delivery by the time of the 10.40 visit. Her recollection was that by this stage she felt that a natural delivery was unlikely and she was keen that a decision to expedite should be made and for steps to be put in place to commence an assisted delivery. Mr Mitchell also submitted that midwife Nairn had given evidence that she had raised these concerns with Sister Tutt and Dr Valero. Accordingly, he said, the situation which faced Dr Valero at 10.40 when he attended to examine Mrs Lowe was one of ongoing concern on the part of midwifery staff as to the CTG trace readings, concern as to how Mrs Lowe was coping and an assessment that natural delivery was not likely. Mr Mitchell submitted that the evidence disclosed that all of these concerns were passed on to Dr Valero and formed the context in which he made a decision as to the ongoing management of Mrs Lowe's labour.

[77 ] The decision which Dr Valero made at 10.40 was of course to keep Mrs Lowe under observation and to perform a further review in fifteen minutes. Mr Mitchell's submission was that that decision fell below the standard to be expected of a reasonably competent and diligent registrar exercising due diligence in the circumstances. As he came to fully develop his submissions on this second ground of fault Mr Mitchell's position regarding Dr Valero and the decision he made at 10.40 became clear. However after some discussion as to how the complaint against the midwifery staff manifested itself and how the four itemised complaints which he identified in his introduction were cross referenced to the pleadings on record, Mr Mitchell refined his position on the extent of his second ground of fault. He acknowledged that the central ground of complaint was against Dr Valero and that he would not submit that the midwifery decisions constituted a separate ground of fault. He also clarified that what he came to focus on in this part of his case was the decision taken at 10.40 by Dr Valero to permit a further period of pushing.

[78 ] With this in mind Mr Mitchell moved on to address the evidence which he submitted vouched the characterisation which he sought to attach to Dr Valero's 10.40 decision. He commenced by referring me to Dr Milne's report, number 6/11 of process and to the first sentence of the conclusion on page 7:

"Between 08.15 and 10.10 when full dilatation was diagnosed both midwifery and medical staff in my view underestimated the significance of the cardiotocographic changes".

He reminded me that in evidence Dr Milne had said that at 10.10 the conditions for vaginal delivery were present and if the baby had not been delivered by 10.40 the registrar should have returned to see the patient and the decision should have been taken to deliver the baby. Had a decision been taken at that time the target time for delivery by caesarean section would have been thirty minutes. The reason why Dr Milne was of the view that a decision ought to have been taken to deliver at 10.40 was related to the readings on the CTG trace. His testimony, as Mr Mitchell reminded me, was that the CTG trace readings had been pathological between 08.21 to 08.55 and again between 09.40 and 10.00. As Mr Mitchell put it, Dr Milne's evidence had come to this - a pathological trace in the second stage of labour equals delivery of the baby. Not to comply with this rule in Dr Milne's opinion fell below the standards to be expected of a reasonably competent and diligent registrar.

[79 ] Mr Mitchell moved on in this context to identify passages in the evidence of Dr Smith upon which he also wished to place reliance in order to further underpin his submission that the decision made by Dr Valero at 10.40 was negligent. He commenced by drawing my attention to Dr Smith's report number 6/17of process at paragraph 17 where he stated:

"At 10.40 (it is unknown why there was such a delay), Dr Valero reviewed the CTG and suggested that the patient continue pushing, CTG was to be observed and reviewed in 15 minutes. The normal and usual practice when faced with a pathological CTG in the second stage of labour is to immediately deliver the baby by forceps or vacuum".

As he noted in his report Dr Smith's view was that the course of action followed by Dr Valero at 10.40 was one which no professional of ordinary skill would have taken when acting with ordinary care. Further his evidence had been that a forceps delivery would have taken around ten minutes. Had there been any other complications a caesarean delivery ought to have been instituted which itself would have resulted in delivery within about half an hour. Accordingly, Mr Mitchell submitted that on the evidence of each of his two expert witnesses it was negligent of Dr Valero not to take the decision to expedite delivery at his 10.40 visit and had he done so baby Kieran would have been born prior to the point in time when his accumulating acidosis level led to brain damage. Mr Mitchell sought to expand upon this summary of Dr Smith's overall view by taking me to further references in his evidence. He reminded me that Dr Smith had viewed the trace readings as being pathological and that he disagreed with the description of the trace readings which Dr Valero had entered in his 10.40 note. He reminded me that the explanation given by both Dr Smith and Dr Milne for the course of action they described was that a pathological trace in the second stage of labour raises such concern as to the fetal wellbeing that it has to be acted upon there and then. Mr Mitchell also stressed that the whole history of the trace reading had to be taken into account, including the earlier bradycardia detected on sonicaid.

[80 ] Mr Mitchell again placed some reliance on the evidence of Evelyn Forrest in this section of his submissions. As I understood him it was to the effect that she was another witness with considerable experience in the interpretation of CTG readings who also classified the CTG trace readings as pathological, particularly in the periods between 09.40 and 10.00.

[81 ] Having thus identified what his complaint was under this ground of fault and the evidence upon which he relied to advance it Mr Mitchell turned to the evidence of Dr Valero to examine what his own explanation was for his decision at 10.40 and then moved on to compare this with the opinion evidence given by Professors Murphy and Calder to see if they provided him with any support. Dr Valero's explanation, on Mr Mitchell's submission, could be encapsulated quite shortly. He had attended at 10.40 and saw that Mrs Lowe was pushing. He saw that the CTG trace showed decelerations and, on his interpretation, good variability. He decided to allow Mrs Lowe a further fifteen minutes pushing and to return after that. According to Mr Michell's submission there was no appreciation in the evidence of Dr Valero that he was having regard to a pathological trace in the second stage of labour. On this analysis of the evidence Mr Mitchell submitted that Dr Valero did not regard fetal welfare as central to his decision making. It was clear he said that Dr Valero had not been motivated by a concern for fetal hypoxia at this stage. This, said Mr Mitchell, was indefensible standing the readings obtained from the CTG trace. Mr Mitchell submitted that this failure on Dr Valero's part was all the more obvious when one bore in mind the views of midwife Nairn and that she had communicated these concerns to him.

[82 ] Looking to the evidence of Professor Calder, Mr Mitchell expressed a degree of criticism over the way he said the Professor's account had changed between evidence in chief and cross examination and as a consequence had been self contradictory in passages. However in his underlying analysis of this evidence Mr Mitchell expressed a single line of criticism. His point was that it was not enough to evade a finding of negligence for Professor Calder to assert that other clinicians might well have made the same decision as Dr Valero had at 10.40. What required to be examined was whether Dr Valero's decision was supported by a body of reasonable medical opinion which had a logical basis and had been arrived at after properly giving consideration to the question of comparative risks and benefits. Mr Mitchell developed this argument by referring to Professor Calder's own evidence on the passage of trace reading following on from 09.40 which he acknowledged as showing a cause for concern. He had also said in evidence that it was a very worrying section of trace. In this context he had explained that it would have been highly desirable for Dr Valero to have delivered at 10.40. Mr Mitchell submitted that the Professor had agreed with him in cross examination that the appropriate course at 10.40 was to deliver the baby. He pointed out that Professor Calder had gone on to say that he thought there had been a strong desire for natural delivery which he described as a misjudgement. Mr Mitchell also reminded me of the passage in Professor Calder's evidence where he had said that the staff had underestimated the significance of the CTG trace readings. In this context Mr Mitchell submitted that the Professor's comment to the effect that others would have made the same decision as Dr Valero at 10.40 withstood no analysis. In the first place said Mr Mitchell the evidence of midwife Nairn made it clear that he was wrong about his assessment of why there had been no decision to deliver made at this time. Secondly, he said it was clear on Professor Calder's evidence that not only did the staff underestimate the CTG readings but they did so in a way which could not be understood as reasonable in the circumstances which prevailed. In other words there was no justification for their interpretation of the readings. Thirdly, he said it did not constitute a defence to the allegation of negligence advanced to say that those concerned had acted in good faith. Accordingly, said Mr Mitchell, it became clear that for Professor Calder to advance the proposition that others would have made the same decision did not assist Dr Valero. Properly understood, he was not explaining an alternative course of reasonable or responsible medical practice. He was simply saying that others would do the same without seeking to advance any balancing justification to set against what he himself recognised as the benefits of delivering in the circumstances prevalent at 10.40 and the dangers, or downsides, of not doing so, namely the risk of the baby being exposed to hypoxic injury. Just because others would do the same did not, he said, constitute a recognisable clinical course of action. It was clear, he said, that on the evidence the appropriate course of action was to deliver the baby in light of the history of the CTG readings by 10.40. Not to do so could only be justified by reference to a clinically valid decision which had its own benefits and had been weighed against the benefit of assisted delivery at that time. The line of thinking advanced by Professor Calder was said Mr Mitchell the same as had been rejected by the House of Lords in the case of Wong.

Professor Murphy
[83] When turning to examine the evidence given by Professor Murphy on this matter Mr Mitchell of course reminded me that she had envisaged three options as being available to Dr Valero at 10.40. Her evidence as to the availability of the second of these was what was relied upon by the defenders. Mr Mitchell's first argument was that the course of action postulated by Professor Murphy as an alternative to delivery was simply not consistent with the course of conduct followed by Dr Valero. It was not what he did. Mr Mitchell sought to develop his argument in this way. He said that the whole basis of Professor Murphy's second suggested course of action was the view that it was acceptable to permit a short fixed period of further pushing to enable it to be ascertained if the labour could be progressed naturally. In Mr Mitchell's submission this justification did not arise on the facts of this case because it failed to take account of the fact that midwife Nairn was already of the view that natural delivery would not occur and had communicated that view to Dr Valero. Further, as I understood the submission, Mr Mitchell explained that the view which Professor Murphy had expressed was arrived at on the basis of an understanding of the whole history of this labour including a recognition of the serious nature of the CTG trace readings at 08.47 and from 09.40 onwards. His submission was that even Professor Murphy accepted that the trace had been pathological at those stages, or at least gave real cause for concern. In these circumstances he submitted Dr Valero had permitted a further period of pushing without a proper understanding of the concerns for fetal wellbeing which Professor Murphy had in mind. She had, for example, used the term that in the second stage of labour the management needs to be tight. Accordingly the thinking which would in Professor Murphy's mind have permitted a further short period of pushing was he submitted quite different from the reasoning which led Dr Valero to his own decision.

[84 ] Mr Mitchell also argued that in any event the course of medical practice envisaged by Professor Murphy did not withstand a logical examination of the sort required of the court in light of the case of Bolitho. He reminded me that he had put to Professor Murphy directly that to allow a further period of fifteen minutes in the circumstances before Dr Valero at his 10.40 visit fell below any acceptable level of decision making and constituted negligent treatment. He reminded me that the justification which he had advanced with Professor Murphy for this proposition arose out of the whole history of the labour, the original bradycardia at 08.15 detected on sonic aid, a non reassuring trace reading throughout, two episodes of pathological trace readings, the absence of any liquor being detected at the 09.20 examination by Dr Black, the reduced variability on the CTG trace readings and the assessment by the midwife that there was no likelihood of natural delivery. Taken together he submitted, as he had put to Professor Murphy, these features dictated that the appropriate and only reasonable course of action by 10.40 was to perform an assisted delivery. Mr Mitchell submitted, again as he had put to Professor Murphy, that her suggestion simply did not withstand logical analysis as it was not based upon a proper weighing of risks against benefits. The benefits of assisted delivery he submitted were obvious and clear on the evidence. They addressed the concern for developing fetal hypoxia. The risk present within the course suggested by Professor Murphy was that the baby would be exposed to the risk of hypoxic injury during that further period of pushing with no counterbalancing benefit at all, far less any which outweighed the risk. Accordingly this course of action failed to withstand logical analysis.

The Third Ground of Fault
[85 ] In introducing his submission in support of this third ground of fault Mr Mitchell explained that it fell to be viewed as having two components. Firstly that Dr Valero's failure to return until 11.15 was negligent and secondly that his failure to take the decision to deliver until ten minutes later at 11.25 was also and separately negligent. Mr Mitchell emphasised that this whole argument had to be seen in the context of his earlier submissions as to the concerns which ought to have been present regarding the progress of Mrs Lowe's labour. He suggested to me that in explaining what she saw as her second option as at 10.40, Professor Murphy was in effect fixing a duration for the labour. Accordingly this third ground of fault was linked to his submissions in relation to his second ground of fault. It was clear he submitted that had Dr Valero returned at 10.55 then he would have appreciated that there was no prospect of a natural delivery and he would have taken the decision to expedite delivery. In advancing this submission Mr Mitchell invited me to hold as a matter of fact that Dr Valero did not return until 11.15. He submitted that on this basis Dr Valero was twenty minutes late. Mr Mitchell submitted that this failure to return gave rise to what he termed a provisional burden on the defenders to explain why this did not constitute negligence. In doing so he founded on the case of Brown v Rolls Royce Limited 1960 S.C (HL) 22. In this context Mr Mitchell also referred me to Ratcliffe v Plymouth & Torbay Health Authority [1998] Lloyd's Rep Med 162 and Lillywhite v University College London Hospitals' NHS Trust [2006] Lloyd's Rep Med 268. In advancing his argument Mr Mitchell sought to draw again on the evidence of both Dr Milne and Dr Smith. Both had testified, on a hypothetical basis, that even if labour could have been allowed to continue after 10.40 then it would be negligent not to return at the appointed time. He reminded me that both had spoken to the sort of staffing levels which would be appropriate to a hospital of this sort and how witnesses from the Queen Mother's Hospital had confirmed the arrangements which were in place to permit further assistance to be obtained if needed.

[86] In addressing the evidence of Professor Murphy on this matter Mr Mitchell took me to the terms of her report number 7/2 of process at paragraph 8.2vi and to the following extract:

"She (Dr Black) informed Dr Valero who reviewed the care at 10.40. Mrs Lowe had been pushing for 15 minutes and he advised ongoing pushing and that he would return in 15 minutes. He could have proceeded to assessment for delivery at that time but I agree that it was appropriate to allow a short interval of pushing with a tight time limit and a plan to return. Unfortunately he did not return until 11.15 by which time Mrs Lowe was exhausted and delivery was still not imminent. The senior sister had attended in the interim and sought out Dr Valero. It is most unfortunate that Dr Valero did not return until 20 minutes later than planned as this introduced an unnecessary delay. However this is the reality of everyday clinical practice on busy labour wards where care has to be prioritised and inevitable delays occur despite the best efforts of the staff involved. Whilst this delay was unnecessary I would say that it is much in keeping with the standard of care provided in the majority of busy labour wards".

No evidence was led to support the suggestion found in Professor Murphy's report that the senior sister had attended and sought out Dr Valero and Mr Mitchell sought to place no reliance on this reference. However he did submit that a number of difficulties for the defenders still arose from this passage of Professor Murphy's report and the evidence she had given in support of it. Firstly, he said that the terms of the report were inconsistent with the professor's evidence. He reminded me that in court she had said that this delay required to be accounted for, whereas, he submitted, she identified no explanation, or accounting for the delay in her report. Secondly, he said that it may be that the accounting for the delay which she had in mind could be inferred from her references to busy labour wards where care requires to be prioritised with resulting inevitable delay despite the best efforts of those involved. If this was what Professor Murphy would see as excusing such a delay then, said Mr Mitchell, it was of no value to the defenders as there was no evidence before the court of any such explanation. He submitted that the evidence given by Dr Valero failed to establish any such compelling reason for his delay as had been contemplated by the Professor. Thirdly, Mr Mitchell submitted that in any event to suggest that unnecessary delays in circumstances such as these could simply be excused on the basis that this was in keeping with the standard of care found in the majority of busy wards went nowhere towards addressing the allegation of negligence. This he submitted was precisely the sort of argument advanced and rejected in the case of Wong. In any event, he said both doctors Milne and Smith repudiated the suggestion that this sort of delay would be either consistent with normal practice or excusable. What it came to said Mr Mitchell was that all of the expert witnesses discussed so far, acknowledged that this was an important time limit to observe. What then was the position of Professor Calder, he asked rhetorically. On this matter said Mr Mitchell the defenders could rely on what appeared to be nothing more than a throw away line when at one stage in his testimony the professor said that it would be acceptable to come back later than the fifteen minutes identified. When it came to examining this passage what was important Mr Mitchell submitted was that there was no elaboration of the proposition or explanation for it. The bald proposition as stated by Professor Calder was incapable of withstanding the sort of analysis contemplated in the case of Bolitho and appeared to be inconsistent with the other passages of his evidence in which Professor Calder was expressing the desirability of delivering the baby at 10.40. For all of these reasons Mr Mitchell invited me to conclude that Dr Valero's failure to return at 10.55 was negligent, or as he also put it, that Dr Valero's care was negligent because he did not return until 11.15 when he ought to have done so at 10.55.

[87 ] Mr Mitchell then went on to submit that having returned it took Dr Valero a further ten minutes to arrive at the decision to deliver and that this delay itself also constituted negligence.

[88 ] On the question of causation Mr Mitchell's submission was that had Dr Valero returned at 10.55 then he would have made a decision to expedite delivery. That decision having been made Mr Mitchell's submission was that on the evidence we had heard delivery ought to have been achieved within thirty to thirty five minutes. Had this been done it could be seen from an examination of Dr Stenson's evidence that baby Kieran would have been born before the point at which he suffered brain injury.

Defenders Submissions
[89 ] Mr Anderson commenced his submissions by taking me back to the record and seeking to cross refer the terms of the pleadings to the way in which the pursuer's case had been presented in submissions. Mr Anderson acknowledged that what Mr Mitchell had referred to as his first ground of fault was clearly foreshadowed in the pursuer's pleadings. However he pointed out that strictly speaking the pursuer's second ground of fault, as identified and narrowed during submissions, was not. This caused no difficulty though said Mr Anderson as the 10.40 visit by the registrar had always been recognised as the point at which the opportunity for making a decision as to delivery had been present. The claim that it was negligent not to do so arose clearly from the respective reports and had been responded to by the defenders' witnesses. Mr Anderson went on to say though that rather different considerations arose when one came to examine the pursuer's third ground of fault. Mr Anderson submitted that this ground was not to be found in the pleadings and had not been specifically focussed on in the examination of the experts in the present case. Mr Anderson came to submit that there had been no fair notice of this ground of fault as it had been advanced. As he described it, this third ground of fault was predicated upon a finding in fact that Dr Valero did not return until 11.15. This he said was not foreshadowed in the pleadings and particularly not as an additional ground of fault. In these circumstances Mr Anderson commenced by arguing that I should disregard Mr Mitchell's submissions on his third ground of fault. However, after a degree of discussion in which it was acknowledged that all of the relevant experts had been asked about this issue of delay, Mr Anderson came to accept that in the absence of any objection to the admissibility of this evidence I was not entitled to ignore the submissions in question. Rather he submitted that in assessing what weight to give to them I should bear in mind the lack of notice and the consequential disadvantage which he said the defenders had suffered in not having carried out further relevant enquiry in advance of the proof.

[90 ] Mr Anderson then moved on to present his detailed arguments in response to the submissions made. By way of introduction he took me through a number of articles and authorities which he submitted set the legal context in which I should assess matters. This exercise comprised references to the Stair Memorial Encyclopaedia paragraphs 162 through to 176, Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, Honisz v Lothian Health Board [2006] CSOH 24, Phillips v Grampian Health Board [1991] 3 Med LR 16, Gordon v Wilson 1992 S.L.T. 849 and Bolitho v City and Hackney Health Authority [1998] AC 232. Mr Anderson also made reference to the various other cases mentioned in submissions by Mr Mitchell.

[91] Mr Anderson commenced by addressing certain submissions to the pursuer's third ground of fault. He did so in the context, as he saw it, of there being very little in the case by way of factual dispute between the parties. However he submitted that the question of when Dr Valero returned after his 10.40 visit was one such dispute. Mr Anderson pointed out that the controversy over this matter arose during the examination in chief of Professor Murphy when she pointed out that the CTG trace readings between 11.00 and 11.10 were very poor and attributed that to the vaginal examination performed by Dr Valero. He reminded me that this passage of evidence arose as a consequence of a series of questions which he had asked of the professor in order to contrast her views with those of Dr Smith on the matter of how intelligible or otherwise the trace readings between 10.40 and 11.10 were. Since Mr Mitchell had made something of the fact that it had never been suggested to the pursuer's experts that the trace readings at 11.00 to 11.10 were consistent with what one would find during such an examination, Mr Anderson's point in taking me back to this was to satisfy me that this evidence had been elicited innocently from Professor Murphy and had in fact been volunteered by her. I accepted this without hesitation.

[92 ] Mr Anderson's proposition was that the question of what the evidence established as to the time of Dr Valero's return was far from clear. He submitted that little help could be obtained from Dr Valero or midwife Nairn as they simply proceeded upon the assumption that it was 11.15 because that was the time given in the nursing notes. He then took me to various extracts from his notes of Dr Valero's evidence. Mr Anderson submitted that what his evidence came to was that he genuinely did not know when he returned. If anything he thought it was a little before 11.15. Equally, he said it was clear that Dr Valero had no recollection of what he was doing in the time prior to his return. The point as to all of this, said Mr Anderson, was that the pursuer had founded upon the entry in the nursing notes as establishing the time of return when the evidence as to the whole matter was too ambiguous to permit that to be done. This he submitted was a matter of some importance in light of the argument advanced by the pursuer in support of the third ground of fault. Mr Anderson submitted that if that ground of fault had as its basis a failure to return then the onus remained on the pursuer to establish that Dr Valero did not return until 11.15. His submission was the evidence warranted no more that a finding that on the balance of probabilities Dr Valero returned at some unknown time after 11.00. On the evidence as so understood Mr Anderson submitted that no question of an inevitable inference of negligence arose.

[93 ] In dealing with the question of causation Mr Anderson confirmed that there was no dispute between the parties on the matter of what caused baby Kieran to suffer from cerebral palsy. He accepted the content of Dr Stenson's report at page 9 where he described when and how brain damage developed. Equally he acknowledged that both Professor Murphy and Dr Stenson had testified that had the baby been delivered before 11.30 then he would have recovered. What Mr Anderson did argue though was that the pursuer had failed to establish what would have been found had a fetal blood sample been taken at about 09.00. On this point he referred me to the relevant parts of the evidence of Dr Milne, Dr Smith, Dr Stenson, Professor Murphy and Professor Calder.

[94 ] Mr Anderson then went on to address what he submitted was the central question of negligence in the case. He introduced this by suggesting that the case for the pursuer, based as it was upon the evidence of Dr Milne and Dr Smith, was predicated upon an analysis of the CTG trace readings. He summarised the pursuer's case as being that in terms of proper interpretation of these readings a fetal blood sample ought to have been taken at 09.00 and delivery ought to have been expedited at 10.40. The starting point he submitted however was that the interpretation of CTG traces is controversial. By way of introduction to this proposition, and by way of example of his point, Mr Anderson referred me to the evidence given by each of Dr Milne, Dr Smith and Evelyn Forrest on the interpretation of the passage of trace between 08.21 and about 09.00. His submission was that this exercise demonstrated that the pursuer's experts didn't even agree amongst themselves as to how to properly describe the readings during this period. He then developed this argument and reminded me of the evidence that in various hospitals around the country regular training sessions took place to educate medical and midwifery staff on the interpretation of CTG readings. He reminded me that the experience of all who had spoken about such exercises was that there would be frequent disagreement at these meetings as to the proper interpretation and that such disagreement extended to the obstetric staff who would frequently disagree amongst themselves about what they were seeing. The most compelling example of this difficulty said Mr Anderson was to be found in the contrast between the evidence of Dr Milne and Professor Calder. Here he said we were dealing with two eminent practitioners, each with vast experience, both working in the same discipline. Despite all of this and despite the fact that they were both colleagues in the same hospital, even they could not agree on the interpretation of the CTG trace readings in this case. Against this background Mr Anderson suggested that I ought to treat the evidence of Evelyn Forrest on this subject with considerable care. It was clear he said that she saw the process of interpretation in a very different light from the obstetric experts. Her evidence he submitted was dogmatic and over confidant. In any event, he submitted, she did not have the benefit of an underlying understanding of the physiological reasons for the manifestations on the trace which other experts did.

[95 ] The importance of appreciating the controversial nature of interpretation of CTG trace readings was, said Mr Anderson, that the pursuer could only succeed if she was able to discredit the defenders' experts. The pursuer he said would require to show that this was one of those rare cases where the views expressed by the defenders' experts were unreasonable, irrational or illogical. He submitted that in the present case the pursuer could not begin to do so. He reminded me that Professor Murphy had been cross-examined for three days and Professor Calder for a day. These exercises, he said, had failed to demonstrate that their views could not withstand scrutiny or were illogical. In fact he said it could be seen that the whole exercise of cross-examination had been directed towards trying to suggest that they were both wrong in their interpretation of the trace. Mr Anderson then sought to address each of the grounds of fault advanced by the pursuer in light of what he submitted was the proper context, namely the controversy over interpretation of CTG trace readings.

[96 ] In looking to the suggestion that a fetal blood sample ought to have been taken at 09.00 he relied upon what Professor Murphy had said to the effect that whilst it would have been an appropriate step to take it was not the only option available and that not doing so did not constitute negligent treatment. He reminded me of her evidence to the effect that in the various other hospitals she had worked in including Dublin, Oxford, Bristol and Dundee it had been very rare for a fetal blood sample to be taken at the stage of almost full dilatation. He referred to her evidence that even now she might do as Dr Valero had done and to her evidence that many competent registrars would have proceeded in the same fashion. Mr Anderson commented on the way in which the pursuer had sought to attack Professor Murphy's evidence by seeking to characterise the CTG trace readings in a certain way. One of the errors which was made in so doing he said was to insist that all witnesses agreed that the CTG trace between 08.21 and 08.55 was pathological. He argued that neither Professor Murphy nor Professor Calder acknowledged that as a correct description. What they had done, he said, was to accept that there was a pathological incident occurring at 08.47 which recovered. This led to the difference between the two camps of experts, where the pursuer's witnesses said since the CTG trace fell to be classified as pathological there was no alternative to taking a fetal blood sample and the defenders' experts said that if there was a transient pathological episode which appeared to recover then it was within the acceptable range of responses not to do so.

[97 ] Mr Anderson also relied upon the evidence given by Professor Calder on this matter. He reminded me of his evidence that he didn't think that he himself would have taken a fetal blood sample in the circumstances confronting Dr Valero. This was all the more powerful said Mr Anderson when one remembered that Professor Calder had described himself as being something of an enthusiast for the test. Accordingly Mr Anderson came to submit that this was a case in which there were conflicting opinions as to the appropriate clinical decision, all of which were honestly held by different experts. The matter came down, he said, to a genuine exercise of clinical judgement. This he said distinguished the circumstances of the present case from some of the more extreme circumstances found to be present in certain of the cases referred to by the pursuer, such as Reynolds, Marriott or Hucks v Cole (referred to in the speech of Lord Brown-Wilkinson in Bolitho). Mr Anderson also argued that it was quite wrong to suggest that the underlying rational for the course of action postulated by the two professors was any different at all from the course of action followed by Dr Valero or his reasons for doing so.

[98 ] In relation to the pursuer's second ground of fault Mr Anderson's position was that what Dr Valero had done was exactly as identified by Professor Murphy as the second of the three options open to a competent registrar in the circumstances as they were at his 10.40 visit. The same option he said had been identified as available by Professor Calder. Here again Mr Anderson's submission was that we were dealing with an exercise in clinical judgement. Once again he submitted that the underlying difference between the respective expert witnesses arose out of their differing interpretation of the CTG trace readings. The defenders experts he submitted acknowledged that there were elements of concern but he emphasised they also focussed on what they saw as reassuring aspects of the readings. Mr Anderson openly acknowledged, as he said his experts had, that it would have been better if the decision to deliver had been taken at 10.40. In that event baby Kieran would have been born in good condition. This he said though was to utilise the benefit of hindsight. What it was essential to bear in mind, he submitted, was that there were two unknown factors which contributed to the eventual outcome. The first was that baby Kieran suffered from severe inter-uterine growth restriction, which meant that he did not have the reserves and strength that a normal baby would be expected to have and secondly that because he had become mal-positioned he was effectively stuck. This said Mr Anderson was clearly the explanation for failure to deliver within the expected time. It was, he said, quite wrong to criticise the defenders for permitting Mrs Lowe to embark upon what Dr Milne had termed a "lengthy second stage" when the reasonable expectation had then been that she would have delivered within the normal time scale of half an hour to an hour after full dilatation.

[99 ] When it came to an examination of Dr Valero's own thinking and actions Mr Anderson submitted that counsel for the pursuer had been incorrect in the analysis which he sought to advance. Mr Anderson referred to the theme which had characterised Mr Mitchell's questioning and repeated in his submissions, namely that Dr Valero had at no stage been alerted by the CTG trace readings to a concern for fetal hypoxia. This suggestion said Mr Anderson was quite wrong. He took me to various passages in the evidence of Dr Valero to vouch the suggestion firstly, that Dr Valero was aware of the presence of continuing variable decelerations and secondly that he was aware of the concerns for fetal wellbeing that ought to be triggered by certain types of readings. He reminded me that Dr Valero had seen the various entries in the nursing notes when he attended just before 09.00 and at 10.40 and on his evidence had examined the trace readings themselves. He reminded me that it was because of a concern as to the readings that he was asked to attend at 10.40. In that very entry Dr Valero had written "persistent variable decelerations". In his evidence he had explained that he had used that term because of the fact that he was aware of the earlier readings. This evidence, he said, clearly demonstrated his awareness of this aspect of the earlier entries. What was important he submitted was that Dr Valero had interpreted the trace readings as also showing good recovery and good variability and that it was in taking all of these features together that Dr Valero had decided to permit a further period of pushing at 10.40. With regard to his understanding of the concern that might arise from such readings Mr Anderson referred me to the passages of Dr Valero's evidence in which he explained that persisting deceleration might result in fetal hypoxia and to the analogy which he tried to offer of a swimmer in rough seas. Although Mr Anderson acknowledged that the analogy had not been easy to follow it demonstrated, he said, that Dr Valero had an understanding of the need to take fetal wellbeing into account in the decision making process and of the fact that the baby could not be expected to continue tolerating the stress of these decelerations indefinitely. On this evidence it was, said Mr Anderson, inaccurate to criticise Dr Valero on the basis that he had been concerned "only to progress the labour". In any event he submitted the criticism was ill conceived in a more general sense. After all he said labour is only progressed in order to ensure that the baby is going to be safe. Accordingly, he said, on a proper reading of the evidence it could be seen that Dr Valero had throughout taken account of the CTG trace readings and had sought to interpret them in a way which gave him guidance as to the level of fetal wellbeing. The views he came to were entirely reasonable interpretations of the CTG trace as vouched by the evidence of the two defence experts. The tragedy said Mr Anderson was that at that time no one knew that they were dealing with a baby which did not have the reserves which it would have been expected to have. What Dr Valero did, he said, was to examine the CTG readings, to appreciate the significance of what he saw and to make a clinical decision in the expectation of early delivery. That decision said Mr Anderson was one which both of the defenders' expert witnesses had regarded as a reasonable option for the reasons which they had given. It was therefore a course of action which had the support of a reasonable body of opinion, arrived at in light of logical and proper assessment. It was accordingly one which a reasonably competent registrar was entitled to take on the information available to him.

[100 ] In so far as the pursuer sought to found upon Midwife Nairn in this context Mr Anderson submitted that I should take care over her evidence as she was emotionally fragile and had a tendency to accept what was suggested to her. He also submitted she had not given evidence that she told Dr Valero of her concerns when he returned at 10.40. Mr Anderson went on to submit that when Dr Valero did return and found that contrary to his expectation the baby had not been delivered he made an immediate decision to deliver. In this context he said the vaginal examination was performed not to decide when or if to deliver, but how to deliver.

[101 ] Having analysed the evidence in this fashion Mr Anderson then returned to the pursuer's third ground of fault. He sought to identify what it was that founded the claim of negligence under this ground. It was he submitted the same as the proposition which underpinned all of the other criticisms advanced by the pursuer, namely that the CTG trace reading fell to be categorised as pathological. Acknowledging, as he had earlier, that Dr Valero did not return within the fifteen minute period which he identified, the question said Mr Anderson was whether in all of the circumstances it was negligent not to return within that time. In this context he referred me to Dr Valero's evidence that he had made an entry in the nursing register to "observe the CTG", and that he did so because he wanted the midwife to pay particular attention to it in light of what the previous readings had been. If something untoward occurred he expected that someone would come and get him. I should view matters in this context said Mr Anderson and conclude that Dr Valero returned as soon as he could. Viewing the evidence in this way Mr Anderson then sought to analyse why it would be that a failure to return within a particular period would constitute negligence. He reminded me that Dr Valero had sought to stress that for him it was not the time scale which was important but the fact that he would require to perform the next review, knowing that if the baby was not yet born a decision would need to be taken about delivery. Mr Anderson's submission was that the question of negligence could not be determined by the time limit which the doctor set himself. If this was the case negligence would be present if a limit of ten minutes was set and not complied with and yet not present if a limit of longer was set and met. The question of the timing of return was, he said, like all of the other issues in the case, one of judgement. In the end of the day when one came to measure Dr Valero's actions against the evidence of other acceptable practice, the evidence was that both of the defenders' experts were of the view that negligence was not present. The rational for this conclusion was that each had contemplated that a decision to allow further pushing was appropriate at 10.40. Professor Murphy had specifically explained that what would constitute a short period would depend on a number of factors, including the level of other commitments. Professor Calder had said that he himself would have allowed a longer period than Dr Valero chose.

[102 ] Whether or not one supported this course of action, said Mr Anderson, depended upon how one interpreted the CTG trace readings. The difference between the experts always came back to the fact that both Dr Milne and Dr Smith described the trace as pathological whereas the defenders' experts took a different view. It was this exercise of interpretation which lay at the heart of the case and accordingly meant that it was a little difficult to see this as a "deviation from normal practice" case. It was he said a case which involved assessment of a dynamic situation which was dependant upon the interpretation of the CTG trace readings. In such circumstances it was he submitted unrealistic to ask what the normal practice was. However, no matter how one approached matters, he submitted that what the pursuer required to establish was that the CTG trace readings had been misinterpreted by Dr Valero in a way that no registrar of ordinary skill acting with ordinary care could have done. Standing the evidence of Professor Murphy and Professor Calder that could not be done in the circumstances of the present case.

Discussion
[103 ] In examining the care provided to Mrs Lowe during her time in the Tower Suite it may be helpful to start by gathering together what undisputed or easily resolved factual material there is as to the context in which the decisions as to the management of her labour were taken. She was a lady who had previously had an uncomplicated spontaneous labour. Her present pregnancy had no known complications. She was appropriately classified as a low risk patient and was managed within the midwifery led unit rather than the main labour ward. From her admission at 5am until the diagnosis of full dilatation at 10.10 her labour progressed rapidly. From at least 08.25 onwards baby Kieran was thought to be in the direct occipito-anterior position and therefore well positioned for natural delivery. Although it may well have been that Mrs Lowe was fully dilated prior to 10.10, all agreed that the point of diagnosis was the trigger for considering the patient to be in the second stage of labour. Once that point had been reached it was appropriate to consider active pushing with the assistance of the midwife. From the time of diagnosis of full dilatation the expectation would be that the baby would be delivered within half an hour although it could be as long as an hour before it would be viewed as prolonged. Mrs Lowe did not deliver spontaneously within the expected timescale. Standing all of the positive indications which were present the first question which arises is why did Mrs Lowe not achieve a spontaneous delivery? The balance of the evidence clearly demonstrated that the explanation was that the baby had become mal-positioned and effectively stuck. The balance of the evidence tended to suggest that his position had been wrongly identified in the vaginal examinations at 08.25, 09.10 and 10.10. It was not suggested that any criticism could be attached to any such incorrect identification. Finally, at birth baby Kieran was found to be suffering from intra uterine growth restriction. Babies who suffer from this condition are much less able to withstand the stresses of labour and are more vulnerable to hypoxia. Had the presence of this condition been identified at an earlier stage in Mrs Lowe's pregnancy her labour would have been managed differently.

Electronic Fetal Monitoring
[104 ] From 08.15 onwards continuous cardiotocograph tracing was available showing the fetal heart rate patterns in conjunction with the mother's contractions. The trace readings which were produced were lodged as numbers 7/1A and 7/1B of process. A considerable proportion of the six weeks of evidence which I heard was taken up with an examination of these readings and discussion as to how the various entries ought properly to be described and interpreted. The various opinions which the medical witnesses expressed as to the appropriateness of the care provided all flowed from their individual assessments of the import of the CTG trace readings. As Mr Mitchell himself put it in his cross-examination of Professor Calder: "the issues in this case between the two sets of experts turn on the CTG tracing". Electronic fetal monitoring provides a range of information about the pattern of the fetal heartbeat. It is common to see slowing of the fetal heart rate on the trace readings which are produced. From early on in the use of electronic fetal monitoring a distinction between early and late decelerations has been recognised. The distinction is based upon the relationship between the deceleration and the associated uterine contraction. Clinicians would be expected to respond to each differently based upon a consensus as to their importance. Early decelerations, although falling to be described as non-reassuring features in terms of the NICE Guidelines, can be the result of neurological influences flowing from, for example, compression of the skull during uterine contraction. The result is instantaneous slowing of the fetal heart and such decelerations are not viewed as sinister. On the other hand, late decelerations are thought to reflect biochemical changes within the foetus as a result of impairment of gas exchange across the placenta. These fall to be described as abnormal features and are viewed very differently. The presence of late decelerations would result in the trace being categorised as pathological in terms of the NICE Guidelines. There are however other patterns of reduction in fetal heart rate which fall to be described as variable decelerations. The cause of these is not well understood at all and clinical experience shows that they may manifest in a variety of patterns and appearances. Modern clinical practice seeks to distinguish between variable and atypical variable decelerations, which again, in terms of the NICE Guidelines, clinicians are expected to respond to differently.

[105 ] The interpretation of CTG trace readings is a matter of judgement with different opinions frequently being expressed by different clinicians as to how to describe the features observed. An example of this feature of obstetric practice could perhaps be seen in the evidence given by the experts in the present case concerning the portion of the CTG trace between 08.21 and about 08.45. Leaving out of consideration the prolonged deceleration at 08.47, Dr Milne described this portion of the trace readings as showing a loss of variability and decelerations most of which were of the late variety although he also described them as atypical variable decelerations. The NICE Guidelines would categorise either type of deceleration as abnormal resulting in the trace being categorised as pathological. He described this as a trace from which he would take very little comfort. Dr Smith described this portion as showing variability which was equivocal and atypical variable decelerations, resulting in his conclusion that the trace should be categorised as pathological. In her evidence as to the interpretation of this section Professor Murphy explained that there were variable decelerations with good variability and normal baseline heart rate, leading her to the view that the categorisation was suspicious, with no need for anything other than conservative measures. She disagreed with the interpretation of late or atypical variable decelerations and took account of what she saw as the presence of good variability and the level of the baseline heart rate as constituting reassuring features. Professor Calder expressed the view that it showed adequate variability, a baseline within the normal range and decelerations which themselves might be entirely innocent. In his view it was a trace which would not cause him any particular concern and he would view the portion from 08.35 on as really rather healthy looking. Accordingly this snap shot of the views of some of most eminent obstetricians in the country appeared to reflect and validate the general evidence given as to the difficulties and differences which commonly arose in such exercises of interpretation.

Legal Issues
[106 ] In advancing their legal submissions the parties to this case referred me to a number of authorities, textbooks and articles. Some were designed to explain the principles which I ought to apply and others to provide examples of their application in other factual circumstances. This was a helpful exercise for which I should record my gratitude. In the end however there was no dispute as to the approaches which I should take. Parties agreed that the principal test to be applied was that laid down by Lord President Clyde in Hunter v Hanley, namely that the pursuer must prove that the doctor who is said to be negligent had been guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Further, it was not disputed that, as Lord President Clyde also said (at page 206), to establish liability where a deviation from normal medical practice is alleged the pursuer must prove (i) that there was a normal and usual practice, (ii) that the doctor had not adopted that practice and (iii) that the course which the doctor adopted was one which no professional man of ordinary skill would have taken if acting with ordinary care. As in this case the pursuer alleges that it was Dr Valero who was the negligent party it was not disputed that the relevant standard of professional man is the standard of the obstetric registrar of ordinary skill.

[107 ] The main area of contention between the parties in this case arose out of the evidence of the competing expert witnesses who were called for either side. Again there was no dispute as to the law which I ought to apply in assessing this evidence. Both parties adopted the summary of the legal propositions which Lord Hodge had outlined in the case of Honisz v Lothian Health Board and Others at paragraph 39 of his opinion in the following way:

"[39] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at p.639 F-G). Secondly, however the court does not defer to the opinion of the relevant professionals to the extent that, if a defender lead evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetrated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Brown-Wilkinson at pp. 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgement. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which that expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test. As Lord Brown-Wilkinson said in Bolitho (at p.243D-E), "it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed."

Accordingly it was with these approaches in mind that I sought to assess the evidence and competing submissions.

The Pursuer's First Ground of Fault
[108 ] Mr Mitchell's submissions on this point were advanced upon the premise that all witnesses accepted that by the time Dr Valero came to be looking at the CTG trace readings at about 09.00 he was looking at a trace which fell to be classified as pathological. They were also advanced upon the premise that a clinician in such circumstances had no discretion but to obtain a fetal blood sample. In my opinion nether premise was sound. Both Dr Milne and Dr Smith clearly favoured taking a blood sample in the circumstances before Dr Valero at 09.00. However, despite his description of the decelerations present prior to 08.47 and his categorisation of the trace as pathological in light of the various features present by the time of Dr Valero's attendance, Dr Milne at least was somewhat equivocal as to how he would characterise the actions of a doctor who did not obtain a fetal blood sample. The assertion that there was no clinical discretion available was predicated upon the advice given in the NICE Guidelines which were not available until two years after Mrs Lowe's labour.

[109 ] However the real difficulty with the pursuer's submissions was that they failed to acknowledge that neither Professor Murphy nor Professor Calder would agree that the trace fell to be classified as pathological at this stage. Each, expressing themselves differently, approved of the concept of examining the 08.47 episode in light of what followed. For Professor Murphy this resulted in the recognition of a pathological event but a re-classification of the trace to suspicious in light of the subsequent re-assuring features. Accordingly, taking into account the progress of the labour and the expectation of the timescale within which birth would be expected, she was of the view that it was not essential to take a fetal blood sample. She viewed Dr Valero's decision at that time as falling within the acceptable range of competent management for a registrar in 1999. She explained that she herself might well have taken the same decision then or now. Professor Calder explained that in the period of the trace after the baseline heart rate had returned one could see a good recovery with good variability and decelerations which coincided precisely with the peak of the associated contractions. He too made the point that it was relevant to take account of the mother's history and progress and that having done so the reasonable expectation would be that delivery would occur comparatively soon. His own opinion was that he would not have performed a fetal blood sample in the circumstances presented to Dr Valero. Accordingly he rejected the suggestion that Dr Valero's care at this point fell to be regarded as negligent. In his view the decision made was not in any sense out of line with the way in which the information available would have been interpreted in many units up and down the country. It was not at all outwith the standard response to find that this degree of abnormality did not prompt a fetal blood sample. Even looking to the content of the NICE Guidelines, like Professor Murphy, Professor Calder's evidence was that they required to be applied in the clinical context and in light of the clinician's judgement. So, for example, he explained that he would not normally take a fetal blood sample as a response to the sort of deceleration seen at 08.47. He would make a judgement as to whether it was a valid investigation in that particular circumstance. It was instructive to notice a difference of emphasis in the thinking of the two differing camps of experts on this matter. Both Dr Milne and Dr Smith appeared to be somewhat dismissive of any suggestion that the nature of the procedure itself should weigh in the decision to take a fetal blood sample. On the other hand each of Professors Murphy and Calder took the view that the starting point was the need to justify any medically invasive procedure. They took account of the discomfort to the mother and awkwardness of the procedure in saying that the clinician should exercise a discretion as to whether such a sample was appropriate. Neither Professor Murphy nor Professor Calder would have said that it was wrong to take a fetal blood sample at about 09.00. Each recognised that the prolonged deceleration was a feature which caused concern. However their view was that an exercise of judgement needed to be performed as to whether what was shown on the CTG trace readings merited subjecting the mother to the procedure. The way in which they interpreted the readings and categorised the trace was different from that of the pursuer's experts. Accordingly, I was left with a difference of medical opinion as to what the correct interpretation of the CTG trace readings ought to have been. It was this difference which was the foundation for the claim advanced against Dr Valero.

[110 ] The evidence led before me established beyond any doubt that the interpretation of CTG trace readings was a matter of judgment and that variation in interpretation was common. The complaint made flowed from what was said to have been a failure to categorise the trace as pathological. Clearly it would have been wrong for me to simply prefer one categorisation as correct over another. In examining the evidence given by the defenders' experts on how they conducted their exercise of interpretation it was obvious that they applied reason, learning, skill and vast experience. In no sense could any of the descriptions of what they saw in looking to particular features be described as illogical or unreasonable. Although I was conscious of having the privilege of hearing the views of witnesses of the utmost eminence in their field, when it came to the interpretation of the CTG readings, had it been necessary to arrive at a preference, I would have found that the evidence given by Professor Murphy surpassed even that of her colleagues. Her evidence on this subject, as it was throughout her testimony, was characterised by a clarity of thought and precision of language which distinguished her even in the company of the other experts. Her intellectual analysis of the matters upon which she was asked to give evidence was underpinned and vouched by a knowledge and understanding of the physiological influences which operated to an extent which appeared to surpass that of the other experts. This may, in part at least, have been explained by her own specialist interest and expertise in the aetiology of cerebral palsy. Even without seeking to rank the expert evidence I was left in a situation in which there was a body of expert evidence which was supportive both of the interpretation which Dr Valero had arrived at in examining the CTG trace and of the decision which he took as a consequence. The very standing of these witnesses might have been thought to be sufficient to demonstrate that their views could properly be described as reasonable and responsible and that in arriving at them they had appropriately weighed any comparative risks and benefits. Any doubt about the matter evaporated on hearing the explanations and reasoning which underpinned their testimony. What each of Professors Murphy and Calder did was to recognise that the 08.47 episode required consideration. They were perfectly conscious of the risks posed to a foetus by the development of hypoxia. In observing the return of the heart rate to baseline they detected the presence of reassuring features, in particular variability and accelerations, which were inconsistent with the presence of hypoxia. Thus they had a degree of information as to the fetal well being. This was sufficient in their minds, standing the previous readings and the otherwise rapid progress of labour, to weigh against the need for the invasive procedure of obtaining a fetal blood sample. It was clear that they had applied their minds to the comparative risks and benefits in sanctioning this course of conduct. It was not correct to see these witnesses as sanctioning a failure to obtain a blood sample despite a pathological trace. Nor were they ignoring clinical indicators which pointed towards the taking of such a sample. On the contrary they were relying on what they saw as clinical indicators pointing away from the need to obtain a fetal blood sample. The conclusion which they reached was both logical and clearly defensible.

[111 ] Although this question did not arise unless one proceeded upon the assessment that the trace fell properly to be classified as pathological it seemed to me that it could not be right in any event to argue that a clinician had no discretion in the circumstances being discussed. The NICE Guidelines themselves, from which much of this submission flowed, contain the following introduction:

"This Guidance represents the view of the Institute, which was arrived at after careful consideration of the available evidence. Health professionals are expected to take it fully into account when exercising their clinical judgement. This Guidance does not, however, override the individual responsibility of health professionals to make appropriate decisions in the circumstances of the individual woman in labour, in consultation with her and, where appropriate and necessary, her guardian or carer".

All witnesses recognised the need for the clinician to apply the guidance in the clinical context. An example which arose in evidence seemed to vouch this. A number of witnesses expressed the view that a prolonged deceleration was a feature commonly caused by nothing more sinister than the mother lying on her back. Applying the NICE Guidelines such an episode would result in the trace being categorised as pathological. However all recognised that the appropriate response was to have the mother sit up and observe the CTG trace reading for reassurance as to recovery. No explanation was ever advanced as to how the exercise of this clinical judgement could be said to be any different from a judgement made in response to a prolonged deceleration which the clinician thought had a different innocent explanation and which was also seen to recover.

[112 ] When it came to an examination of Dr Valero's own evidence I could detect no meaningful difference between the approach which he described himself as taking and that approved of by the two professors. He assessed the readings and the mother's history. He recognised that the 08.47 episode was of concern but chose to watch how it developed. He was reassured by the subsequent features of the trace and came to a view as to what had caused the prolonged deceleration. Given the rapid progress and stage of labour his view was that it was probably caused by head compression on descent. This assessment was supported by both Professor Murphy and Professor Calder. In light of this view and his assessment of the subsequent readings, Dr Valero was satisfied that it was safe to permit the labour to continue. He was aware of the risk that a foetus might develop hypoxia but saw no signs of that at that stage. He said in terms that he knew he could not ignore a pathological trace simply because he hoped that the baby would be delivered in fifteen minutes. He was aware of the opportunity to perform a fetal blood sample but his experience led him to the view that such a procedure was not necessary in the circumstances before him. He expected a natural delivery within a short time and was concerned not to embark on unnecessary intervention. I took this from the general nature of his care and his remark to the effect that he was sure he would have been criticised for doing something unnecessary if he performed a caesarean at the time of the 08.47 bradycardia.

[113 ] On the issue of causation Mr Mitchell's submission was that had a sample been taken at around 09.00 it would have shown the presence of acidosis and further action would have been taken. In my view the evidence did not entitle me to give effect to this submission. The highest that Mr Mitchell was able to put this was, as I set out above in summarising his submissions:

"had a fetal blood sample been taken at around 09.00 it would have been in the low normal range and might well have been outwith the normal range".

This was the evidence of Dr Milne. Mr Mitchell also founded on the evidence of Dr Stenson. However in neither his report nor his evidence did he give a view as to by what time a fetal blood sample would have shown evidence of acidosis. Although not specifically relied upon in submissions, Dr Smith did also give some evidence on this matter. He was asked firstly about what a sample might have shown if taken around 10.10. His position was that on the balance of probabilities it would have indicated some level of acidosis. He was then asked if a sample taken at 09.10 would have shown acidosis, to which he relied "yes". No further explanation of his reasoning was provided. Both of Professors Murphy and Calder described the exercise of trying to assess what a sample taken at 09.00 would have shown as speculation. If pushed, Professor Murphy's view was that it would have been within the normal range. They both made the point that a reading in the low normal range was a normal reading and would not have triggered any further action. Professor Murphy also made the point, with which I understood the others to agree, that a foetus with inter-uterine growth restriction will develop acidosis more rapidly than a healthy baby. Because of this she did not believe that baby Kieran could have been suffering from hypoxia throughout the period of hours covered by the trace readings. This as I understood her was what led her to the view that a sample at 09.00 would have shown a normal pH reading. Since this was the state of the evidence even the submission for the pursuer invited a degree of conjecture. Further neither Dr Milne nor Dr Smith explained how their assessment took account of the presence of baby Kieran's growth restriction and, on their analysis, his apparent ability to cope with that rapidly increasing level of acidosis over the following two and a half hours. In light of the competing evidence on this matter and the explanations given I found that I was unable to conclude on the balance of probabilities that a fetal blood sample taken at 09.00 would have shown an abnormal pH level.

The Pursuer's Second Ground of Fault
[114 ] As before, Mr Mitchell's submissions in support of his second ground of fault were based upon the interpretation of the CTG trace readings which were drawn by his witnesses. His argument on this point might be summarised by the comment he made in submissions under reference to Dr Milne's evidence - "a pathological trace in the second stage of labour equals delivery of the baby". In advancing this argument in submissions Mr Mitchell frequently referred to the term "indisputably pathological" which had been used by Dr Smith. The difficulty for him however was that both of the defenders' experts, and Dr Valero himself, did dispute that the trace readings fell to be viewed as pathological. Mr Anderson was, I think, correct in observing that the tenor of the cross-examination of the defenders' experts seemed to be to persuade them that they were wrong. If this was the underlying purpose then of course it was not successful. Accordingly I was left again with a difference of medical opinion as to what the correct interpretation of the CTG trace readings ought to have been. This was important in assessing Mr Mitchell's submissions on this matter as his criticism of Dr Valero flowed from what he said was a failure to appreciate that he was having regard to a pathological trace in the second stage of the labour. As a consequence of this the criticism was that Dr Valero had not been motivated by a concern for fetal hypoxia, which he said was indefensible standing the CTG trace readings.

[115 ] For the reasons which I gave in analysing the pursuer's first ground of fault I was entirely satisfied that the defenders' experts' views as to the interpretation of the CTG trace readings in the period after 09.00 were also entirely reasonable and responsible views to hold. Accordingly when it came to assessing Mr Mitchell's submissions as to his second ground of fault I did so from the starting point that there was a body of reasonable and responsible medical opinion which agreed with the assessment of the CTG trace readings to be found in the nursing notes at 08.25, 08.35, 08.55, 09.25, 09.45, 10.00, 10.05, 10.10 and 10.20. Although the staff concerned were correctly noting the presence of decelerations in these entries they were not describing the trace as pathological. None of these entries contain terms which would warrant the CTG being categorised as pathological. My starting point also acknowledged that that same body of opinion agreed with the assessment of the CTG readings which Dr Valero had made and recorded in his 10.40 note, namely: "persistent variable decelerations, good recovery, good variability". In this context it is clear that each of the defender's experts acknowledged that it was within the range of competent management for Dr Valero to allow Mrs Lowe to continue pushing for a further period. They were not doing so in the face of what they saw as a pathological trace. The criticism which the pursuer's experts bring to bear on this decision flows from their own interpretation of the CTG trace readings up until that time. Mr Mitchell's attack on Professor Murphy's evidence was of course advanced upon the basis that her opinion did not withstand logical examination. As a component of this argument he had submitted that her opinion contained no proper weighing of risks against benefits. However as can be seen from the summary of the points he relied upon in paragraph [84] above it was impossible for Mr Mitchell to advance this argument to any effect without acknowledging that its foundation was an interpretation of the CTG trace readings which led to a concern for fetal hypoxia. Professor Murphy simply did not see things in the same vein. Indeed, far from seeing reduced variability, she relied upon what she saw as good variability with the reassuring conclusions which flowed from that. Although Mr Mitchell was correct to say that Professor Murphy had concerns about aspects of the trace readings between 09.40 and 10.00 her evidence was that by the time Dr Valero came to see the trace at 10.40 there was a history which included a number of reassuring features and what she described as very reassuring features in the period between 10.10 and 10.30. This was information which pointed away from a developing risk of hypoxic injury. For these reasons, in her view, this was a trace by 10.40 which demonstrated that the foetus was in good condition or certainly coping with labour. In this situation the options which she identified took account of the half hour which had passed since diagnosis of full dilatation and that the mother had been actively pushing for fifteen minutes. The advantage of permitting further time was that the mother might well deliver naturally and if not there would at least be the expectation that the baby would have descended further making an assisted delivery less complicated. The competing risk which Mr Mitchell founded upon of exposing the baby to risk of hypoxic injury did not feature in Professor Murphy's assessment, as this risk flowed from the interpretation which the pursuer's witnesses placed on the readings. Professor Murphy was not conducting an exercise in which risk of hypoxic injury was weighed on one side as against the benefits she identified on the other. Accordingly, since on her view the baby was coping, there was nothing which could be said to be illogical or indefensible about the course of action she supported.

[116 ] I also failed to see force in Mr Mitchell's submission that the course of action supported by Professor Murphy was inconsistent with the action and reasoning of Dr Valero. Some reliance was placed on the evidence of midwife Nairn in advancing this argument. It did not seem to me to make very much difference in assessing whether Dr Valero's conduct constituted negligence to take account of a view held by the midwife as to whether natural delivery would be achieved or not. The decisions to be made were the responsibility of Dr Valero. In any event, for the reasons he gave, I agreed with Mr Anderson's submission as to the way in which I should approach midwife Nairn's evidence. She was in an emotionally fragile state at the time of the proof and in light of the time which had passed had little direct recollection of the events. She was guided through her evidence in chief by the nursing notes when she was taken beyond their content I was not often satisfied that she had any reliable recollection. For what it matters, I did not accept that there was reliable evidence that she had told Dr Valero at 10.40 that her view was that natural delivery would not occur. My assessment of her evidence was that in view of the way matters were developing she had hoped for a plan for delivery at Dr Valero's 10.40 visit. That was what occurred. The plan was to permit a further period of pushing followed by a review at which an assisted delivery was the likely outcome. In my view Mr Anderson was correct in the submissions which he made as to what the evidence demonstrated about Dr Valero's reasoning at 10.40. For the reasons which he advanced as summarised at paragraph [99] above I was satisfied that there was no discernable difference between the process of reasoning which led to Dr Valero's clinical judgement and that identified by Professor Murphy.

[117 ] Mr Mitchell had of course also advanced a line of criticism directed at the evidence of Professor Calder. This included criticism over what Mr Mitchell said were changes in his evidence. The underlying argument though was that Professor Calder was merely saying others might do the same without providing a reasoned clinical basis for this course of action and without first conducting an examination of the competing risks and benefits. At certain passages in cross-examination Professor Calder did appear to give evidence which was different from that which he had given in chief and might have been thought to be supporting the case advanced with him by Mr Mitchell. As he did so I was at first not sure if he was speaking with the benefit of hindsight, or now conceding fault on the part of Dr Valero. For example, at one stage he did appear to acknowledge that when Dr Valero attended at about 09.00 he would have been looking back at a trace reading which was clearly pathological. At this same stage of his cross-examination he appeared to be explaining to Mr Mitchell that it showed poor judgement not to obtain a fetal blood sample at that time. This was a little difficult to follow at the time as it appeared to conflict with the evidence he gave in chief as to what he himself would have done in Dr Valero's position. It also appeared to conflict with another passage in cross-examination when being referred to the NICE Guidelines and to a reading of them which led to the understanding that they appeared to prescribe the taking of a fetal blood sample in response to a single prolonged deceleration lasting for longer than three minutes. As I drew attention to earlier at paragraph [109] Professor Calder's evidence was that he would not normally take a sample in such circumstances. His evidence was that he would make a judgement as to whether it was a valid investigation in that particular circumstance. At a later stage he also appeared to assent to Mr Mitchell's proposition that the trace readings for the period between 09.40 and 10.00 were clearly pathological and required intervention. Later still he also appeared to assent to the proposition that the appropriate course for Dr Valero at 10.40 was to deliver. Not surprisingly, these were the passages of his evidence which Mr Mitchell focused on in submissions. As with the passage relating to the question of obtaining a fetal blood sample I had some reservations as to the import of these answers. At the time I was not entirely clear whether Professor Calder was making concessions, being somewhat uncertain as to what he was being asked or merely acknowledging that the views of the pursuer's witnesses, with which he was being presented, were reasonable enough in themselves. However the matter became clear in re-examination when he explained that Mrs Lowe's CTG trace reading did, virtually throughout, have features which departed from the normal pattern. He explained however, as others had, that the presence of other than normal features was a very frequent phenomenon and that virtually all labours have a tendency to have episodes where things are not normal. In the present case he saw that the treating staff were reassured by certain features in a way which, with hindsight, was not justified. However he was clear that the views which they took during labour were the responses of people who were earnestly trying to give the best possible care and to avoid unnecessary intervention. Despite the outcome, which he recognised would make all concerned wish that they had done things differently, he was clear that their actions were based upon judgements which were reasonable for them to make in the circumstances before them. As he put it in his own words:

"I think they took the judgement that there was no evidence from that (the CTG trace) of serious trouble and I can understand how they took that judgement, because that's commonly how people would interpret that pattern".

When the individual points were returned to and broken down Professor Calder made it clear, as one would expect from hearing the view he had just expressed, that he did not agree that the CTG trace readings between 09.40 and 10.00 were indisputably pathological and that while it would have been an option to deliver at 10.40 it was also a reasonable judgement to allow a further period for pushing. In conclusion he reiterated his opinion that none of the decisions complained of constituted negligent treatment.

[118 ] In the end of the day it was my assessment that Professor Calder was a further expert who disagreed with the interpretation placed on the CTG trace readings by the pursuer's witnesses. He did not see the readings in the period at any time prior to 10.40 as being pathological. Like Professor Murphy he recognised the need for concern as to aspects of the trace but also felt it was reasonable to come to a judgement as to the extent of these concerns by taking account of recovery and reassuring features which followed. He was not, as I understood him, simply saying that clinicians up and down the country might well let such a labour as this continue in some ill informed sense. He was saying that Dr Valero had taken account of the information provided by the CTG trace readings. He had in his view correctly interpreted those readings and the other information available suggested that the mother could be expected to deliver soon. In that state of affairs an exercise of judgement was made upon the understanding that there was no reason to intervene out of concern for the foetus at that stage. It was that sort of judgement, on the same understanding of the import of the CTG trace readings, which Professor Calder was saying would not uncommonly be made in good quality hospitals up and down the country. That was an assessment of the risks and benefits of clinical practice flowing from a view which saw no real risk of hypoxia. It resulted in a logical and defensible decision and was in my view entirely different from the sort of conduct criticised by their Lordships in the case of Wong Finance Co. Ltd. v Johnson Stokes and Masters.

[119 ] Standing the quality of expert evidence which had been provided by the obstetricians led by both parties I did not find the evidence of Evelyn Forrest to be of assistance. It was common ground that interpretation of CTG trace readings was a medical function. It was also obvious that it would be necessary for midwifery staff to have a general understanding of what was indicated by the relevant entries on the trace. I was not satisfied that Mrs Forrest was adequately qualified to comment on the quality of the obstetric care provided. In any event her understanding of how various features ought to be interpreted was clearly not the equal of the other experts. Certain of her own descriptions of how readings ought to interpreted were dismissed out of hand by professors Murphy and Calder. She was able to provide no sensible explanation as to why she had categorised the particular readings as non-reassuring in her report and as pathological in her evidence. In addition the manner of her reasoning was at times unhelpful. As mentioned earlier she gave the rather surprising testimony that the professors of obstetrics would simply be wrong if they arrived at a view different from her own. When she did so I gave her the opportunity of reflecting on her answer as she seemed to have offered it instantly and without seeking any form of clarification as to what their view was. She saw no need to modify her position. When I asked her why she responded so decisively on the matter she explained that it was because she had been trained in the interpretation of traces and was confident of her ability. She appeared to see no force in the observation that the professors would also have training and expertise in the same field.

The Pursuer's Third Ground of Fault
[120 ] The allegation of negligence advanced under this heading flows from the proposition that Dr Valero did not comply with his plan to review Mrs Lowe after a further period of fifteen minutes pushing. Quite why this would be negligent conduct is not immediately obvious. It is true to say that each of doctors Milne and Smith testified that if labour could have been permitted to continue at 10.40 then it would have been negligent not to return within the fifteen minutes set. However they gave no explanation as to why this would be. No one suggested, for example, that there was some clinical significance to the period of fifteen minutes standing the stage of Mrs Lowe's labour. Neither did either of these experts explain why, in this context, fifteen minutes would be consistent with reasonable medical practice but twenty, or any other period, would not. It seemed to me that neither Dr Milne nor Dr Smith could really separate out this particular proposition from their view that it was essential to deliver at 10.40 in light of their categorisation of the trace as pathological by that time. For example, Dr Smith's view was that it was clear by 10.40 that the staff were dealing with a hypoxic baby. When asked to consider the concept of a review and asked about the importance of returning at the selected time, he replied that that it was necessary to do so because you have a baby who is in fetal distress and you don't let that continue. Neither gave a view on this matter which was predicated upon anything other than the fact that the CTG trace was pathological by 10.40.

[121 ] Dr Valero was clear that having made the decision at 10.40 to give Mrs Lowe further time within which to try and achieve spontaneous birth, what was important was that he, rather than any other member of staff, should carry out the next review. The reason for that was that he appreciated if she had not delivered within that period it would be likely that an assisted delivery would be necessary. As he sought to emphasise he saw nothing magical or crucial about the period of fifteen minutes. He said he might easily have chosen a different period such as twenty minutes. He chose fifteen minutes because by then Mrs Lowe would have been pushing for about thirty minutes. It was not suggested that this reasoning, other things being equal, was flawed. It was for example consistent with the evidence that you would expect delivery within an hour of full dilatation or that one might allow a woman to push for up to an hour (as had been spoken to by Dr Smith).

[122 ] As Mr Mitchell appreciated in submissions I would only require to analyse this ground of fault if I had rejected his submissions in support of his first and second grounds. Since this is the position in which I find myself I have to approach this argument from the standpoint that it was reasonable for Dr Valero to have viewed the CTG trace readings in the way he did at 10.40 and reasonable for him to make the decision as to management which flowed. In these circumstances I cannot find a basis in the evidence upon which I could conclude that fifteen minutes was the maximum reasonable period to permit, nor that there was anything at all of clinical significance about that period. In cross-examination, when Professor Calder was asked if he thought the time period selected by Dr Valero was reasonable, he replied that he would have allowed a little more and would have planned to review within half an hour, in other words by 11.10. There is nothing illogical or unreasonable about this view as it proceeds firstly upon Professor Calder's assessment of the situation at 10.40, which was that it was reasonable to conclude that there was no evidence of serious trouble from the CTG observations and otherwise good reason to expect Mrs Lowe would deliver naturally within what was a reasonable period from full dilatation. The period which Professor Calder mentioned that he would allow would have taken Mrs Lowe to one hour from full dilatation and to a period of forty five minutes of pushing. The benefit anticipated in such a course of action was natural delivery of the baby. The risks weighed were those apparent from his own interpretation of the CTG trace readings.

[123 ] As Mr Anderson had submitted it did not seem to me that the question of negligence could be determined by the period which the doctor himself chose. No witness had suggested this. Accordingly I did not accept the proposition that once it was established that Dr Valero was to any extent later than fifteen minutes in returning a provisional burden of the sort Mr Mitchell had argued for passed to the defenders. In both her report and in her evidence Professor Murphy had explained that the 10.40 options included allowing a further short period of pushing. She explained that it would be difficult to define what would constitute a short period as it would depend on factors including how busy the ward was. However she judged the period chosen to be a reasonable one. In her report she did state that it was "appropriate to allow a short interval of pushing with a tight time limit and a plan to return" (my emphasis). In evidence she agreed that if a time limit had been set it was important that the obstetrician should return at that time. However it was never suggested to her that in the context in which she approved of a short period of further pushing the maximum permissible was fifteen minutes. It is obvious from what she went on to say that she did not subscribe to such a view. Equally, it appeared to me to be of some relevance to bear in mind why she said the obstetrician should set a time limit. She said it was so that he does not lose track, which I understood her to mean so that he does not lose track of the importance of a review for that patient within a short time.

[124 ] The question then arises as to when did Dr Valero return. Mr Mitchell asked me to make a finding that he did not return until 11.15. No witness claimed to recollect the exact time of his return. The records bear an entry with the time of 11.15 in his writing. Dr Valero in evidence thought he would have returned a little before that time. His evidence was that the time reference was normally entered as the time at which he started writing. The entry at 11.15 contains a number of pieces of information and is really in three distinct sections. The first appears to be a note of what he found on his return and the decision he made, namely to perform a vaginal examination and an assisted delivery. The second records the findings of his examination. The third notes that Mrs Lowe's consent for trial of forceps and caesarean is to be obtained and that he had a discussion with Dr Roberts. Dr Valero has signed this section of the notes at two places, near to the beginning and near to the end. That might be thought to imply that there were two distinct exercises of note writing. Beyond that however I found that it was impossible to arrive at any firm conclusion as to timing from an examination of these entries. In my view all that could be concluded was that if Dr Valero had written the first section of the note at 11.15, and that time was accurate, he must have returned to the room at least a little before then. If he wrote the first and second sections at 11.15 then by that time he had completed the vaginal examination. On this view he would have arrived at least ten minutes prior to 11.15 and probably even earlier than that.

[125 ] The only other information which might be thought to cast light on this question comes indirectly from the CTG trace readings. Both Professors Murphy and Calder were of the view that the loss of contact shown on the trace between about 11.00 and 11.10 was the sort of reading one would expect if a vaginal examination of the sort performed was taking place. Equally, in their view, the level of contact which was present after 11.15 appeared inconsistent with such an examination. It is correct to observe that Professor Murphy held this view more strongly than Professor Calder, but he too, on balance, favoured that interpretation. In addition Professor Calder supported his view by explaining that the pressure sensor which records the levels of the mother's contractions appeared from the trace to be doing its job pretty well up until about 10.55, after which it became meaningless. This he thought would be consistent with the point at which Mrs Lowe was on all fours, as referred to in the entry made by midwife Nairn and timed at 11.00.

[126 ] Taking all of this information together I did not, in the end, feel that I could make the finding which Mr Mitchell asked of me. In my view the balance of the evidence vouched the proposition that Dr Valero returned earlier than 11.15, and sometime much nearer to 11.00. I did of course bear in mind in this exercise that the pursuer's expert witnesses had not been asked to comment on whether inferences of this sort could be drawn from the CTG trace in the periods from 11.00 onwards. However each of Professors Murphy and Calder were cross-examined at length on the point and no motion was made to recall either of Doctors Milne or Smith to speak to this matter. Accordingly on the interpretation of the evidence which I favoured my conclusion was that Dr Valero had not returned to perform a review within fifteen minutes of his 10.40 examination. However, it seemed to me right to conclude that he was back with Mrs Lowe performing a vaginal examination sometime between 11.00 and 11.10. Prior to performing this examination he had appreciated that Mrs Lowe would require an assisted delivery and the purpose of the examination was to ascertain which type. As to why he did not return within fifteen minutes, as I have explained above, it is clear that Dr Valero did not consider this an upper limit. No acceptable evidence suggested it ought to have been. Upon these conclusions alone I could find no basis in the evidence for concluding that his conduct constituted medical negligence.

[127 ] Although Professor Murphy expressed the view that a failure to return at the expiry of the time selected required to be accounted for it was clear that she meant accounted for by the clinician in terms of his other duties. Dr Valero himself did not claim to recollect what he was doing in the few minutes prior to returning to see Mrs Lowe. However in various different ways, under questioning from counsel for the pursuer, he repeated that he must have been attending to another patient at the time. In particular he asserted that he could guarantee that he was not having a coffee or thinking that this was not an important case. Dr Valero impressed me as a responsible and honest individual. There was not a hint from any other source of lack of diligence on his part nor any evidential support for the suggestion that his delay was caused by anything other than the needs of the other patients on the ward. Accordingly on this point I was satisfied that I ought to proceed upon the basis that any delay in returning to carry out a review of Mrs Lowe arose as a consequence of Dr Valero attending to other patients. This, it was clear, was the sort of accounting which Professor Murphy had in mind. Although it is obvious that a treating Doctor ought not to abandon one patient as a consequence of the needs of another, it is equally obvious that a degree of prioritisation will be inevitable. It is also obvious that there will be circumstances in which it is necessary for a doctor to obtain assistance from a colleague in coping with competing needs. All of this was alluded to in evidence, as was the need for a hospital to provide adequate levels of staffing and resources. However the ground of fault advanced was directed against Dr Valero alone and was predicated upon a factual assumption which I did not find established.

[128 ] Although Mr Mitchell did say, in introducing this third submission, that it had a second component to it relating to the time at which the decision to deliver was made, this was not the subject of detailed analysis. It was clear in my view that Dr Valero made the decision to deliver the baby when he returned. The examination was performed to ascertain how delivery would be expedited. Once the examination was completed he required the authority of a senior colleague before continuing. There was no evidential basis to separately characterise the time taken during this aspect of his care as negligent.

[129 ] I have sought to explain my decision by referring at some length to the evidence led. I am satisfied on the basis of the evidence given by Professors Murphy and Calder that the decisions which Dr Valero made, and which are complained of, were reasonable decisions made in light of an appropriate assessment of the available information both as to the progress of Mrs Lowe's labour and fetal well being. For the reasons which I have given above I could not find that this was one of those rare cases in which it was demonstrated that the professional opinion relied upon was not capable of withstanding logical analysis. It follows then that the pursuer has failed to establish negligence in the management of her intrapartum care. Her action therefore fails. I shall repel the pursuer's first and second pleas-in-law and sustain the defenders' second and third pleas-in-law and assoilzie them from the conclusions of the summons.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lowe v. Yorkhill NHS Trust [2007] ScotCS CSOH_111 (27 June 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_111.html Cite as: [2007] ScotCS CSOH_111, [2007] CSOH 111

Scottish Court of Session Decisions

Introduction