Summary of Opinion — Judge Hood

Factual and Procedural Background

The Plaintiff brought an action on behalf of her child (the Child) against Company A arising from the Child's birth at a hospital managed by Company A on 11 September 2010. The Child was born with the umbilical cord wrapped around the neck. The Plaintiff alleges that shortcomings in the care provided by midwifery staff in the maternity triage unit and by two obstetricians caused the Child's medical difficulties. The court directed a proof before answer limited to breach of duty; causation and quantification of loss were to be considered later if necessary. Evidence was led over 11 days, including factual witnesses and expert witnesses for both sides. The court received contemporaneous records (TRAK) and joint documents prepared by the parties.

Legal Issues Presented

1. Whether the presence of meconium was reported to the triage unit and the time of the Plaintiff's arrival at triage.
2. Whether midwives on duty in the triage unit were under a duty to assess the Plaintiff within 15 minutes of arrival.
3. Whether midwives were under a duty, given the Plaintiff's presentation, to commence CTG monitoring within 15 minutes of that assessment.
4. Whether midwives should have assessed the Plaintiff significantly before 0200 hours on 11 September 2010.
5. Whether Doctor B (senior registrar) at 0410 hours should have concluded the CTG was pathological and proceeded to an immediate Category 1 or Category 2 emergency caesarean section.
6. Whether Doctor B should not have ordered commencement of syntocinon at 0410 hours because the CTG was pathological.
7. Whether Doctor A (registrar) at 0532 hours and at 0546 hours should have concluded the CTG was pathological and proceeded to a Category 1 or Category 2 emergency caesarean section.
8. Whether Doctor A at 0642 hours was under a duty to make arrangements for an immediate Category 1 caesarean section.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff alleged negligence by triage midwives and by Doctor B and Doctor A.
• The Plaintiff contended the Plaintiff reported meconium on telephone contact(s) and on arrival, and that triage staff failed to act accordingly.
• The Plaintiff argued midwives had a duty to assess within 15 minutes of arrival and to commence CTG within 15 minutes of that assessment; failure to do so breached duty.
• The Plaintiff contended that the obstetricians ought to have classified the CTG as pathological at various times (0410, 0532, 0546 hours) and proceeded to an emergency caesarean section (Category 1 or 2), and that syntocinon should not have been commenced.

Company A's Arguments

• Company A disputed that meconium had been reported before Midwife A's assessment at 0215 hours and relied on contemporaneous records and witness accounts.
• Company A denied there was a usual midwifery practice in 2010 to assess every triage arrival within 15 minutes and relied upon evidence that BSOTS/15-minute targets were introduced later.
• Company A relied on the treating clinicians' contemporaneous interpretations of the CTG and on expert evidence that the CTG was not pathological at the times alleged; it argued the clinicians' judgments were open to responsible practitioners.
• Company A submitted that when the bradycardia occurred there was recovery within the 9-minute period in the applicable guideline, permitting reconsideration of Category 1 status.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hunter v Hanley 1955 SC 200	Test for clinical negligence: whether clinician deviated from ordinary care and whether the course adopted was one no professional of ordinary skill would have taken.	The court applied the Hunter v Hanley test to assess alleged deviations from usual and normal practice by midwives and obstetricians.
Bolitho v City and Hackney Health Authority 1998 AC 232	When competing expert opinions exist, the court may reject a body of professional opinion if it cannot withstand logical analysis; otherwise the court should not prefer one responsible body of opinion over another.	The court used Bolitho to explain that it would not reject responsible expert opinion unless it lacked a logical basis; this informed evaluation of competing expert evidence.
Honisz v Lothian Health Board [2006] CSOH 24; 2008 SC 235	Summarises Scottish approach: where opposing responsible schools of thought exist the court generally should not prefer one; exceptional cases may permit rejection of a professional practice that fails rational analysis.	The court applied the Honisz principles in considering whether Professor Murphy's account of responsible practice could stand against the Plaintiff's experts.
Dineley v Lothian Health Board [2007] CSOH 154	Guidance on assessing expert opinions: consider whether an expert's view is based on mistaken facts, whether risks and benefits were properly assessed, and whether there is a logical basis for the opinion.	The court used Dineley to structure its assessment of the competing expert opinions and whether they met the required logical basis.
McGuinn v Lewisham and Greenwich NHS Trust [2017] EWHC 88 (QB)	Discusses the principles applicable where there are competing expert opinions in clinical negligence cases (cited as helpful discussion).	The court considered McGuinn as a helpful exposition but did not treat it as altering the established principles applied to expert evidence.
C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61	Referenced in authority on expert evidence and clinical judgment in negligence cases.	The court noted C v North Cumbria as part of the jurisprudential background on expert evidence; it informed contextual approach to competing expert views.
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59	Dicta on the general approach to expert evidence.	The court referred to Kennedy v Cordia for the proper judicial approach to expert evidence but did not restate the dicta in full.

Court's Reasoning and Analysis

The court undertook a detailed factual assessment and then analysed the disputes against the legal tests for clinical negligence and the authorities on expert evidence.

Factual findings:

• The court accepted that the Plaintiff gave a first telephone call in which she did not report meconium; the second telephone call was answered by Clinical Support Worker A and the court accepted Clinical Support Worker A's evidence that she would have passed on any report of meconium to a midwife. The court preferred the contemporaneous notes and staff evidence to the Plaintiff's and her partner's later, more variable recollections on whether meconium was reported before formal assessment.
• The TRAK record of arrival at triage (2335 hours on 10 September 2010) was accepted as reflecting the triage folder entry; the court found the Plaintiff likely spoke to reception at 2335 hours though arrival at the door may have been shortly earlier.
• Midwife A assessed the Plaintiff at about 0215 on 11 September 2010, inspected the pad and noted "meconium light", and a CTG was commenced within about five minutes of that assessment.

Midwifery duties:

• The Plaintiff relied on Expert Midwife A to assert a duty to assess within 15 minutes. The court examined the historical practice and BSOTS evidence and found no standard midwifery practice in 2010 requiring an initial assessment within 15 minutes. The 15-minute target derived from BSOTS post-dated the events and was not shown to have been the usual and normal practice at the material time.
• Because the 15-minute assessment duty was not established, associated ancillary duties (such as commencing CTG within 15 minutes of that assessment) also failed. The court noted that, in any event, Midwife A had commenced CTG shortly after her assessment, so that, practically, the asserted timing duty was complied with here.
• The court therefore concluded there was no breach by the midwives in respect of the 15-minute assessment or CTG timing duties.

Obstetric duties and expert conflict:

• The central dispute as to obstetric care turned on interpretation of the CTG trace and the correct application of the 2007 NICE Intrapartum Care Clinical Guideline (Clinical Guideline 55, Table 5 and Table 6) to determine when a trace becomes 'pathological'.
• The Plaintiff's expert (Expert Obstetrician A) identified multiple late (including 'shallow') decelerations earlier in the trace and maintained the treating clinicians should have classified the trace as pathological at earlier times and proceeded to earlier caesarean delivery. The Defendant's expert (Expert Obstetrician B) supported the treating clinicians' contemporaneous assessments and regarded the trace as not pathological until a later point.
• The court applied the Bolitho/Honisz/Dineley principles in evaluating the competing expert opinions. It examined whether Expert Obstetrician B's body of opinion lacked a logical basis or was founded on mistaken facts or inadequate risk/benefit analysis.
• The court found Expert Obstetrician B's evidence to be logically coherent, factually informed and to fall within a responsible body of clinical opinion. The court did not accept that the 2014 NICE wording represented a post hoc elevation of standard; rather, the 2014 wording was treated as a clarification or development consistent with contemporaneous practice. The court rejected the Plaintiff's submission that clinicians in 2010 should have treated intermittent or isolated decelerations as rendering the trace immediately pathological.
• The court also held that midwifery experts' evidence on CTG interpretation was admissible as both midwives and obstetricians are trained to read CTGs; that evidence supported but did not alter the court's conclusion reached on obstetric expert evidence alone.
• Applying the legal test from Hunter v Hanley, the court concluded the obstetricians' assessments and actions were within the range of responsible professional opinion and thus not negligent.

Holding and Implications

DEFENDANTS' PLEAS SUSTAINED; PLAINTIFF'S ACTION REPELLED

Holding: The court dismissed the Plaintiff's claim on the breach issues. Specifically, the court rejected the Plaintiff's first plea-in-law, sustained Company A's second and third pleas, and absolved Company A. The court concluded there was no breach of duty by the triage midwives, Doctor B, or Doctor A on the issues determined at the proof before answer.

Implications: The direct effect is that the Plaintiff's claim on breach (as tried) fails and Company A is assoilzied. The court reserved questions of expenses for further address. The opinion does not purport to establish a new legal precedent; it applies established authorities on clinical negligence and evaluation of expert evidence to the facts of this case.

Decision-Maker and Representation

Decision by Judge Hood.

Representatives recorded in the opinion were anonymized in this summary.