Nadine Montgomery v. Lanarkshire Health Board [2010] CSOH 104

Proof:- In this personal injury action the pursuer sought reparation, as the mother and guardian of her son, Sam Montgomery, from the defenders following complications at the birth of her son on 1 October 1999. Quantum was agreed at £5.25million pounds and the only issue at proof was liability. The circumstances relating to the birth of the child were that when the child's head was delivered he had exhibited signs of shoulder dystocia and because of that the rest of his body was not delivered for a further 12 minutes resulting in a period of acute hypoxia lasting for at least 12 minutes. Due to this the child was clinically dead and required to be resuscitated which left him with renal damage, causing epileptic seizures. The child has subsequently been diagnosed with cerebral palsy and a brachial plexus injury involving Erb's palsy of the upper limb due to the shoulder dystocia. The pursuer's claim for loss, injury and damages sustained by her son were based on the ground that no ordinarily competent obstetrician acting with reasonable skill and care would have:- (1) allowed a diabetic woman of short stature with macrosomic foetus in "early trial of labour" whose foetal heartbeat was grossly abnormal to continue in labour and attempt a vaginal delivery; (2) failed to recommend delivery by caesarean section between 08.10 and 17.00 hours on 1 October at the latest; and (3) failed to take foetal blood samples between 08.10 and 17.00 hours. It was further contended that in the antenatal period no ordinarily competent obstetrician acting with reasonable skill and care would have:- (1) failed to advise the pursuer of the risks of vaginal delivery; (2) failed to inform the pursuer of the risks during vaginal delivery of shoulder dystocia; and (3) failed to offer the pursuer the option of delivery by caesarean section. At proof the court hard from the pursuer, the pursuer's mother, the pursuer's ex-husband, Dr McLellan, Dr Willocks and a midwife regarding the factual evidence of the antenatal period. There were only two matters of dispute in relation to the antenatal period, firstly, whether the pursuer had concerns about her ability to deliver Sam prior to the 36 week appointment and expressed these to Dr McLellan and, secondly, whether she had expressed such concerns to Dr McLellan and, in particular, had expressly raised the question of what the risks of vaginal delivery were with Dr McLellan. In relation to the labour period the pursuer and Dr McLellan gave factual evidence regarding what had happened. The only issue in dispute during this period related to the interpretation of the CTG. Four expert medical witnesses, Professor Neilson and Dr Stewart on behalf of the pursuer and Dr Owen and Dr Mason on behalf of the defenders gave their opinions in relation to the issues of informed consent and the interpretation of the CTG. It was accepted that the test to be applied was that the pursuer had to prove that the doctor who was 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 and that to establish liability where a deviation from normal medical practice was alleged the pursuer had to 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. In relation to the alleged failure in the management of care during labour the issue between the parties related to the alleged misinterpretation by Dr McLellan of the CTG trace during four periods of the pursuer's labour. Here the court considered whether the opinion evidence led on behalf of the defenders withstood logical analysis, in particular, in relation to a decision taken at 12.30 on 1 October 1999 and that leading to a decision taken at 15.50. It was further contended on behalf of the pursuer that she had not been informed of the risk of shoulder dystocia. Here the court considered whether there was a substantial risk of grave consequences having regard to the figures for the risk of an adverse outcome and whether the pursuer should have been advised. The court considered whether the pursuer established a breach of duty by the defenders in terms of the case based on lack of informed consent.