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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Khalid ( A Child) v Barnet & Chase Farm Hospital NHS Trust [2007] EWHC 644 (QB) (29 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/644.html Cite as: [2007] EWHC 644 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th March 2007

His Honour Judge Grenfell:

1. Fahima Khalid was born on the 24^th October 2003, but sadly she had suffered a substantial period of oxygen starvation (Hypoxia) as a result of which she sustained severe brain damage. Fahima's claim, advanced by her parents, Mrs Baira Khalid and Mr Khalid Rafique, on her behalf, is that there was negligence in her mother's treatment and her birth; that, in particular, if she had been born by caesarean section some 20 minutes earlier, she would not have sustained any harm.
2. The labour in this case involved what is known as 'trial of scar' or 'trial of labour', simply because the existence of the scar in the uterus from the caesarean section birth of the Khalids' first child, Allessey, carried a known, but small, risk of rupture during the subsequent labour.
3. This was a true tragedy. On the one hand, Baira Khalid, had plainly set her heart on a normal delivery for her second child. On the other hand, the hospital and its medical staff had both mother's and baby's welfare in mind throughout, desiring the best outcome of this pregnancy. In spite of the apparent conflicts of fact both parents and, in particular, Midwife Han and Dr Sirry, the Registrar Obstetrician, on duty that night, plainly thought they were doing their best for the child about to be born.
4. I am concerned to determine the issues of breach of duty and causation.
5. A breach of duty on the part of Midwife Han has been conceded on the basis that she should have called the doctor so that he would have arrived about an hour earlier than he did in fact.
6. It is agreed that, had Fahima been born some 20 minutes earlier she would have been born unharmed.
7. The central issue is whether that breach caused an outcome that was different to that which would have occurred had the doctor arrived earlier.
8. There is a further issue whether Dr Sirry was in breach of duty in respect of what he did or did not do when he was called and whether such breach caused an outcome that was different to that which would otherwise have occurred.
9. The law is clear on the issue of causation. What Dr Sirry would have done, had he been called at around 06:15 is a question of fact, whether or not that would have been a course which all reasonably competent practitioners would have followed. What he should have done is a matter of applying the test of determining the course of action that would have the approval of a responsible body of medical practitioners, the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 58): see Bolitho v City and Hackney Health Authority [1998] AC 232. Equally, what Dr Sirry actually did when he was in fact called at around 07:15 has to be viewed by applying the same test.
10. The following passage of Lord Scarman's speech in Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, at p 638 and 639 respectively, informs the correct approach in a case involving a test of clinical judgment:

"I would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence."

….

"I have to say that a judge's "preference" for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary."

11. Thus the case turns first of all on what Dr Sirry would have done had he arrived at or shortly before 06:30; secondly on what the parents' state of understanding would have been at that time, depending on what information they would have been given at that time; thirdly, what their decision would have been had they had that information at that time; fourthly and only if their decision had been to proceed with the trial of labour, on whether Dr Sirry would have been called again or would in any event have visited again at around the time he in fact visited at about 07:20; fifthly on what he would have done at this time, whether that would have been any different to what in fact he did; sixthly, on whether, in the light of what would have passed between them and Dr Sirry an hour earlier, their attitude would have been any different to the question whether the trial of labour should proceed or whether there should be a caesarean section.
12. I remind myself that the law is clear when applied to each of these stages that where the question is what Dr Sirry should have done, as opposed to what he would have done, the test must involve deciding what would have been sanctioned by a responsible body of medical opinion.
13. I shall return to consider the law in relation to the submitted right to information on which to base an informed decision in relation to treatment.
14. In a 'trial of scar' or 'trial of labour' the risk of scar rupture during the subsequent labour occurring in percentage terms is very small, in the region of 2% at most. Some 70% of trials of labour are successful, from which it follows that for one reason or another in 30% of trials, the trial is abandoned and there is a caesarean section. The expert medical witnesses agree that, nonetheless, the possibility of scar rupture remains at all times a substantial risk involving as it does the potential for a catastrophic result. In other words, no responsible obstetrician would ignore the risk merely on account of the percentage risk being so small, simply because, if it does materialise, the result can be brain damage or death to the baby, not to mention the risks to the mother's health. That is why it is sometimes termed 'trial of scar'. For this reason the pregnancy is regarded as one of high risk.
15. The Hospital set a protocol for the trial of scar. The relevant parts required 'Registrar involvement /review re management of labour and action plan to be documented', 'Record of maternal and fetal condition as per partogram', 'Progress of labour to be closely monitored and recorded and registrar to be informed of findings: i) Record nature of contractions (strength and frequency), ii) 2 hourly vaginal examinations … to assess progress after cervix is 3cm or more dilated or contractions established, … iii)Monitor position and descent of the baby's head abdominally and by [vaginal examination], iv) Continue trial of labour if progress is being made with no adverse features. – CTG monitoring – continuous.'
16. The consultant who saw Baira Khalid some 4 days before the night in question, Miss Whitelaw, recorded clear instructions in her notes:

"For trial of labour. Once in established labour i.e regular contractions and cervical effacement from 3 cms dilatation, must have 2-hourly vaginal examinations. Can have syntocinon as per primips regimen. However, must progress 1 cm with Syntocinon. If not, for Caesarean Section…

"Plan: Assess vaginally on 28/10. If cervix closed, for Caesarean Section after discussion with mother…."

17. The hospital protocol and Miss Whitelaw's notes were clearly designed to ensure the safe delivery of Mrs Khalid's baby, her own safety and to avoid an outcome where the baby was delivered too late in the event of scar dehiscence and rupture.
18. An important feature of the management of the labour is a cardiotocograph ("CTG") scan and trace. The foetal heart rate is recorded electronically and printed on a continuous paper trace at the top. As its name suggests it produces a picture of the rate in graph form so that the actual rate can be read as relates to any time. Beneath the foetal heart rate trace is a trace recording the mother's contractions. From this, an instant comparison can be made between any accelerations (tachycardia) or decelerations (bradycardia) in foetal heart rate and contractions, so that they can be recognised, for example, as early, late or variable decelerations.
19. I turn to the relevant facts.
20. There are 3 periods of particular significance: the period following 06:15 when it is agreed Midwife Han should have called Dr Sirry, the obstetric registrar on duty that night, as a result of the CTG becoming what is termed 'pathological'; the period following 07:15 when Midwife Han in fact called Dr Sirry and when he took a foetal blood sample; the period following the commencement of the terminal bradycardia at around 07:47 which culminated in the emergency, or 'crash', caesarean section and Fahima's birth at 08:16. The second period has also to be viewed hypothetically on the basis of what would have happened had there been no breach of duty on the part of Midwife Han and Dr Sirry had been called at around 06:15. In that regard I am not concerned to decide what actually happened, but what would have happened which involves assessing the various chances or probabilites and deciding on the balance of those probabilities, as to what was more likely than not to have occurred.
21. The central and material issues of fact include: What was the contraction rate at the time of Dr Sirry's arrival at about 07:22 and between then and the commencement of the taking of the foetal blood sample? What course of treatment and advice was offered by Dr Sirry which led to the taking of the foetal blood sample? What was Mr and Mrs Khalid's response to the advice and treatment offered at that time? What was Mr & Mrs Khalid's response to the advice that there should be a crash caesarean section at the time the terminal bradycardia was diagnosed? What would Dr Sirry have done and advised if he had been called when he should have been called at around 06:15?
22. The first of these is relevant to the assessment of the risk of rupture at that time and the propriety of offering a foetal blood sample, whether as the recommended course of treatment or as a second choice. The next three are relevant only to the issue of whether the Khalids were so reluctant to agree to delivery by Caesarean section that they would have refused this as an option if offered it at 06:20 or at any time thereafter. Other issues of fact are of course relevant in assessing the reliability and credibility of witnesses.
23. It is tempting to adopt a simplistic approach to the credibility of the witnesses and to resolve the main issues on the basis that some are telling the truth and some are not. Having heard all the witnesses and considered all the documentary evidence available, I do not think that such an approach would do justice to the respective cases. I formed the view that Mr and Mrs Khalid were essentially honest people. They gave their evidence in a straightforward manner, but in their written statements and oral evidence they had no contemporaneous documentation on which to rely and were having to recall events which were catastrophic to them at the time, which happened in unfamiliar and emotional circumstances, which happened in a relatively short time and which happened at a time when Mrs Khalid was in pain and frightened. It is small wonder that they cannot recall events with great accuracy. On the other hand, both Midwife Han and Dr Sirry were anxious quite understandably to justify their own actions or inactions that night so far as possible in retrospect. I formed the view, nevertheless, that they were essentially honest. So it is that I have to assess the reliability of each witness' evidence rather than their honesty.
24. There is retrospective agreement between the obstetrician experts that the scar rupture had in fact begun by 07:00.
25. There is agreement following the meeting of the paediatric neurologists that Fahima was exposed to 27 or 29 minutes of profound hypoxic ischaemic stress before birth and less than 5 minutes after birth; the onset of hypoxic ischaemic insult was either 07:47 or 07:49 and ended at 08:17 or 08:20; had Fahima been born prior to 07:57 or 07:59 then she would have been born unharmed.
26. The following is my chronological assessment of the facts relating to the labour and ultimate birth of Fahima.
27. 01:45 Admission was noted 'TRIAL OF SCAR'. At 02:15 the CTG was disconnected, contractions were noted as mild to moderate and irregular; Baira Khalid was 'advised .. rest until contractions .. regular'. At 03.40 the CTG was recommenced. Baira Khalid confirms the note 'stronger pain - wants gas and air' and at 04:00 'Wants stronger pain relief'. At 04:10 Midwife Han performed a vaginal examination and noted 'wants epidural'. At 04:45 the epidural procedure was performed with the first epidural top up at 05:00. At 05:15 Midwife Han noted 'FHR down to 60 Dr Sirry called'. It is common ground that the drop in foetal heart rate was probably due to reduced blood pressure post epidural, which was 'still not fully effective'. Baira Khalid's recollection that he conducted a vaginal examination, in my view, is confused with that which undoubtedly did take place on Dr Sirry's next visit at 07:20. Baira Khalid was turned on her left side. Dr Sirry's evidence was that he gave clear oral advice to the effect that he was to be called if there was any repetition of the abnormal foetal heart rate and reassured the Khalids that there was no problem at the time, but that he was to be informed if there was any repetition. Midwife Han has no recollection of this. Surprisingly Dr Sirry made no note other than signing the CTG trace. However, I am satisfied that the discussion did take place.
28. By 05:22 the foetal heart rate was gradually recovering (Midwife Han corrected her note 'recovered' in evidence). By 05:45 she noted 'CTG now reactive', the foetal tachycardia base was 155-170 and she noted the CTG as 'suspicious'. I accept Mr Woolfson's and Professor Thornton's evidence that 05:50 is the start of a period of 1 ½ hrs of pathological trace. The Partogram recorded that the contractions had gone from medium strength every 2 minutes to fairly strong every 3 minutes. At 06:15 there were early decelerations down to 80 baseline 160. The experts agree in their joint statement that the midwife at this stage (06:15/20) should have called for medical assistance because of the persistent tachycardia and variable decelerations. It is further agreed in the joint statement that "the CTG between 0557 and 0630 indicated a change in the level of risk of scar dehiscence, namely, an increase in the level of risk of scar dehiscence". Dr Sirry himself put it at about 50%.
29. Baira Khalid was turned on to her left side and the CTG was noted as 'pathological'. The trace did not recover. At 06:45 Midwife Han noted 'Still having early decelerations – 'Bladder visible'. Following catheterisation at 06:50 the bladder was no longer visible. The CTG remained 'pathological'. At 07:15 Midwife Han called the doctor and at 07:20 Dr Sirry arrived in the room.
30. There was a discussion between Dr Sirry and the Khalids in which caesarean section was mentioned and which ended with a decision that the labour should continue and that a foetal blood sample be obtained. There are issues as to the state of mind of Dr Sirry and of both Mr and Mrs Khalid at the time.
31. There is an issue as to the frequency of contractions in the immediate run up to, and during, this visit, with Midwife Han and the obstetric experts agreeing that in fact they were less strong and reduced to 1 in 10 during this period and Dr Sirry who says that he interpreted the CTG trace as showing some 5 contractions between 07:00 and 07:20. It is now common ground that the trace does not show those 5 contractions, although it does show the contraction which Dr Sirry says he felt. I have to consider whether Dr Sirry simply failed to spot the drop in rate and whether there are grounds for excusing that failure on the basis that a respectable body of obstetricians faced with the same circumstances and trace prospectively would have missed this important sign.
32. I remind myself of the importance attached in the Hospital Protocol for trial of labour to 'Record nature of contractions (strength and frequency).'
33. Dr Sirry took 3 foetal blood samples timed on the CTG as 07:30 and as put into the blood gas analysis machine at 07:44, 07:45 and 07:47, each being printed a minute later. At 07:47 the CTG trace showed the foetal heart rate down to 80. The experts agreed that during the period 07:00 to 07:47 the contraction rate had in fact decreased to around 1 in 10 minutes from 1 in 3 in the previous period.
34. There is a factual issue as to what happened on Dr Sirry's return into the room. First it is common ground that he told the Khalids that the news was good, the sample showed normal and reassuring. However, Midwife Han noted further loss of contact in relation to the foetal heart rate and contraction rate and that the contractions were now mild and irregular. Almost immediately there was prolonged foetal heart bradycardia. It is unclear from Midwife Han's and Dr Sirry's evidence whether, as Midwife Han said in her statement, Dr Sirry applied the electrode before or, as he said in his statement, after the prolonged bradycardia commenced. The only significance of this difference is to illustrate how easy it is to recall events differently that happen quickly and traumatically. Dr Sirry said it would be insane to put in a 'FSE' (foetal scalp electrode) knowing there was a terminal bradycardia. Yet Midwife Han said in oral evidence that she "Put Mrs Khalid's leg down" "that's how I noticed the CTG"; that when the FSE was on and it still stayed down, Dr Sirry said they were to do a caesarean section and started to talk to Mrs Khalid.
35. Dr Sirry confirmed that when he realised that there was a prolonged bradycardia he informed Midwife Han that they needed to do a crash caesarean section. She then left the room to make the arrangements leaving him to talk to the parents about the situation, only to return "a couple of minutes later" to find him "trying to persuade" the parents of the need. Dr Sirry says that he had a prolonged argument for some 9 minutes during which he resorted finally to saying that the baby could be born with brain damage or dead, after which finally Baira Khalid agreed and signed the consent form. The defendants rely heavily on the fact of this argument as indicating a general reluctance for Baira to undergo caesarean section in support of their case that at no earlier stage whether at about 06:30 or any stage thereafter would she have consented to caesarean section.
36. By 07:49 the foetal heart rate was down below 60. The foetal scalp electrode started recording just before 07:50 ('DECG' on the trace).
37. Dr Sirry wrote his note timed at 07:50. Midwife Bentum who was taking over from Midwife Han, wrote her first note timed at 07:55. The emergency caesarean section commenced at 07:59 and at 08:16 baby Fahima was delivered.
38. I can only assume that Dr Sirry's precise estimate of his 9 minute argument is a reconstruction from the timings working back from 07:55. Whether this is a reliable estimate is in issue as is Mrs Khalid's estimate that around this time Dr Sirry was out of the room for some 15 minutes.
39. I turn to examine the information which the Khalids had that night. For this it is first necessary to go back in time.
40. Dr B Amissah-Watts advised them in June 2003 of the options between vaginal delivery and elective caesarean section 'with pros and cons'. He wrote 'Happy for Trial of vag. Delivery.' I am satisfied that the overwhelming recollection that the Khalids have of their discussions with the doctors was that it was safe to proceed to a vaginal delivery and that Miss Whitelaw, the consultant who saw them on the 20^th October only days before the trial of labour took place, had been equally reassuring and had explained the additional care that would be put in place; that none of the doctors with whom they discussed the pregnancy would have wanted to over emphasise the risk of scar rupture, not wanting unduly to alarm. I am equally satisfied that they will have been told that the trial of labour could be stopped if circumstances dictated it. In view of Dr Amissah-Watts' note, I am satisfied that one of the 'cons' he is likely to have mentioned was the very small risk of the scar breaking down; that after speaking with him and Miss Whitelaw, they must have understood that there were some risks additional to a normal pregnancy. However, because of their overwhelming impression of reassurance, I am not in the least surprised that they did not particularly recollect mention of the risk of scar rupture. Indeed neither Mr Woolfson nor Professor Thornton would go into detail with patients about the mechanics of scar dehiscence. The consultants who saw these parents may well have thought there was no need for that kind of detail at that stage.
41. I am invited by Mr Miller to infer that the likely questions that would have been asked would have yielded a simple explanation of the risk of damage to the baby in the unlikely event of scar rupture. Unfortunately, neither of the consultants recorded as much in terms. On the other hand, as Professor Thornton said, he would have assumed that the Khalids would have been warned in terms of the risks involved.
42. In the event, therefore, Baira Khalid like most other expectant mothers in her position of having had a caesarean section entered her trial of labour with confidence that it was entirely appropriate.
43. Following her admission to hospital it was clear to the Khalids that special attention was to be paid to her as a 'trial of labour', for example the fact that a cardiotocograph ("CTG") was to be employed and the importance of it was clear to both of them as they accepted in evidence. Mr Khalid became quite familiar with the movement on the trace and the red light that would alert the Midwife as necessary. However, it would be a mistake to impart any technical knowledge to either of the Khalids. They were entirely dependent on the medical staff for information that went beyond their own ordinary lay knowledge.
44. One piece of knowledge they did not possess was that the baby could test normal for sufficient oxygen in the blood supply one minute and within only a matter of minutes could be in serious distress with risk of brain damage or death because of scar rupture to the extent that an emergency caesarean section was immediately necessary. In my judgment, their reaction, particularly that of Mr Khalid on being told of the terminal bradycardia at about 7.50, clearly demonstrates their understandable ignorance in this regard. Mr Khalid, as I find, took a little time to take on board the dramatic change from being told by Dr Sirry one minute that the baby was fine to being told that an emergency caesarean section was needed. Mrs Khalid, Mr Khalid, Midwife Han and Dr Sirry all recall him saying words to the effect 'how come this is so, when minutes ago you were telling us the baby's fine?'
45. Sadly, I have to find that Dr Sirry has exaggerated in retrospect the Khalid's reaction, which was no more than simply questioning what was going on, into a fully blown argument with him having to do everything in his power to persuade them to agree to the caesarean section. Having said that, I do understand his frustration as the doctor faced with this sudden emergency at being questioned, when to him the danger now posed was so clear.
46. There are important contemporaneously recorded facts which support my conclusion. There was not the time in which there could have been a protracted argument. The final blood sample result was timed at 07:47. Dr Sirry told the Khalids that the result was reassuring. In his handwritten statement made the following day he refers to giving them the 'good news'. He was at pains to say in evidence "to put the record straight" that he had not said in terms that the baby was "fine". Whether he said so in terms does not seem to me to matter. The impression he gave, and must have realised he gave, was plainly one of reassurance in terms of the baby's wellbeing.
47. Midwife Han noticed that there had been loss of contact during the blood sampling procedure and must have communicated this to Dr Sirry immediately, who then applied the foetal scalp electrode timed on the CTG trace at 07:50. This was immediately followed by the prolonged foetal bradycardia and it became clear to both of them that an emergency caesarean section would have to be performed. Midwife Bentum (relieving Midwife Han) made her first note at 07:55 so that Dr Sirry had to have written his note before then. It is likely, in my view that when he timed his note at 07:50 he was approximating the time. That leaves a remarkably small time in which to have had anything like a protracted argument. His note, as he accepts it was written at the time, already recorded 'for C/S'. His evidence that he was writing his note at the same time as trying to persuade the Khalids to accept caesarean section does not accord with Midwife Han's evidence. She had left the room immediately the prolonged foetal bradycardia became apparent and Dr Sirry told her that they needed to do a "crash caesarean section" – this must have been almost immediately the foetal scalp electrode started recording at 07:50; a "couple of minutes later" she returned to find Dr Sirry trying to persuade the Khalids of the need for caesarean section and Mr Khalid questioning the need; Midwife Han heard Dr Sirry explain that the baby could be damaged if the caesarean section was not performed and Mrs Khalid gave her consent. She does not refer in her statement to his writing his note at the same time. In evidence she said that she "Didn't see him writing his note" and "He couldn't have written his note before." Dr Sirry's evidence therefore that it had taken some 9 minutes discussion cannot be right. Much in the same way Baira Khalid's evidence that Dr Sirry was out of the room for some 15 minutes after taking the foetal blood sample cannot be right and is itself an exaggeration. All this goes to show that impressions in retrospect can be misleading, particularly following a catastrophic event and when people are trying to think back.
48. Had the Khalids appreciated that the foetal blood sample could not exclude scar rupture as a possible cause for the pathological trace and that scar rupture meant risk of brain damage or death of the baby, there would have been no need to question the need for caesarean section. Given Midwife Han's evidence that Dr Sirry explained the danger of damage to the baby after Mr Khalid questioned the need, it is clear to me that immediately the Khalids became aware of the seriousness of the situation they had no hesitation in agreeing to the operation. This evidence is crucial in understanding their likely frame of mind in the hour and a half run up to this position and in reaching a conclusion as to what they would have decided had Midwife Han called Dr Sirry at around 06:15 to 06:20 when she should have done so.
49. Before leaving this topic, it is appropriate to consider Dr Sirry's note in a little more detail, because its interpretation impacts on what he would have said to them at around 06:30 and what their likely reaction would have been; on what he would have said to them, given that he would have been returning later after 07:00 for the second time and what their likely reaction would have been then.
50. Dr Sirry's note timed in the record at 07:50 was, of course, made retrospectively after the foetal blood sample had shown normal one minute, and then almost immediately the CTG trace had shown the prolonged bradycardia that had dictated the emergency caesarean section by the time he came to write it. He accepts that he inserted later, after the operation, in the gap between the end of his '07:50' note and Midwife Bentum's 07:55 note, the words 'declined c/c, when told possibility of Brain damage –> agreed for C/S …' Earlier in his note there appear the words:

"Discussed options → FBC

→ C/S

Keen on NVD (therefore) FBS

+ declined C/S

3 x samples …"

51. Dr Sirry said in evidence that he had not also added the words in my italics after the event. However, two objective factors, in my judgment indicate that he is mistaken in his recollection about this: first, the fact that he deemed it necessary to add after the event the words showing that the Khalids had declined caesarean section after the prolonged bradycardia, utilising the space that had been left before the next note; second, his note appeared otherwise evenly spaced with gaps between each apparent stage. Dr Sirry's evidence, both written and oral was that he had a lower threshold in offering caesarean section where there had been a first child delivered by caesarean and was clear that he had advised caesarean section on this occasion. This was not in the context of discussing various options, but according to him, only when Mr and Mrs Khalid declined the caesarean. I consider that he has based this evidence on his note rather than clear recollection of what occurred.
52. The note which Dr Sirry admits inserting later, in my view, was defensive in purpose. The fact that they had declined caesarean section would be irrelevant at that stage, because he had Mrs Khalid's consent and it could hardly have affected what he did in operation.
53. Dr Sirry wrote out a statement dated the same date, 24^th October. Mr Francis suggests that the opening words "I was on call on 24^th Oct at night …" indicate that it may have been written at some time later. However, it seems to me that the words "I have assured [Mrs Khalid] that her baby will have the best care …" tend to suggest it was written the same day.
54. The handwritten statement, in my view, was plainly written in defensive terms, in the light of a catastrophic result of the trial of labour. This follows what I have termed the defensive purpose of inserting the reference to 'declining' caesarean section into his clinical note. It is notable that this statement does not say in terms that the Khalids declined caesarean section before the foetal blood sample was taken.
55. Taken in context with the evidence of Mr and Mrs Khalid, it seems to me that, without the words in my italics, the note makes sense: there was plainly a discussion about whether the labour should continue with Dr Sirry indicating that he would like to carry out a caesarean section, although it seems clear from both his and the Khalids' evidence that he did not say why; that the option was 'NVD' (normal vaginal delivery); that in that context a foetal blood sample was offered. I am satisfied that neither of the Khalids in terms declined caesarean section. It seems to me that, whenever Dr Sirry wrote the words in italics, he was confusing their attitude after the foetal blood sample result with their attitude during the preceding discussion.
56. I should make it clear that it is agreed that any delay that could possibly have been attributed to the questioning of the need for caesarean section would have had no impact on the eventual outcome. In fact, Dr Sirry, even on his estimate of the length of argument, said in evidence that it would have made no difference, because the operation was set up immediately he realised the situation. My only observation is that, once the emergency situation was recognised that both mother and baby are in danger, there is something wrong with having to seek consent in the pressure of such circumstances. This is an important reason for making clear from the outset the recognised risks of not stopping the trial of labour when advised and the consequent need for caesarean section when it has to be stopped, particularly in an emergency. No one, however, criticises Dr Sirry for requiring the consent at that stage.
57. I turn to the issues in the case.
58. The issue of general principle, I agree, can be summarised as follows: Is the obtaining of a foetal blood sample by an obstetrician in response to foetal heart rate abnormalities on the CTG trace during a trial of scar outside the band of respectable medical opinion? Refined to the circumstances of this case, I agree that the issue is: Is the obtaining of a foetal blood sample by an obstetrician in response to an unexplained pathological (and ominous) CTG trace in a trial of scar, outside the band of reasonable and responsible medical opinion?
59. One of the problems in this case it seems to me is the use of the term 'option' to describe a choice between caesarean section and the obtaining of a foetal blood sample, whereas it has become clear that the real choice is between terminating a trial of labour with caesarean section and allowing the trial of labour to continue to normal vaginal delivery. The offer of a foetal blood sample, it seems to me, is merely incidental to the option of continuing with the trial of labour and not a necessary part of the option. I understand Professor Thornton to be saying that his preference, in such circumstances, would be to recommend a foetal blood sample in the context of discussing the option of whether to continue with a trial of labour or not. That is not to say that the offer of a foetal blood sample is in itself an option. Mr Woolfson explains the clear logic, with which I understood Professor Thornton to agree, that whilst a normal result can reassure that the baby is not acidotic at the time of the test, it can never be in indication that there is no scar dehiscence in progress, as this case clearly illustrates. Moreover, a normal result can be followed within minutes with a prolonged bradycardia which itself heralds the distress of the baby that was not indicated by the result.
60. Professor Thornton said in evidence in answer to a question of mine, "If you are suspicious of rupture then you need to decide on the level of suspicion and even quite a low suspicion should provoke caesarean." In answer to my further question, "I think the question is that if you had grounds for suspicion you would not waste time doing the foetal blood sample" he said, "That's right". This is in accordance with the literature.
61. I conclude, therefore, that there are two schools of thought on the use of a foetal blood sample when the continuation of a trial of labour is under consideration: the 'Woolfson' school which holds that there is no place for one, because it only provides temporary reassurance; the 'Thornton' school which holds that it is an appropriate step to take to determine that the foetus is not acidotic and that, because it can indicate that the foetus is acidotic, it can determine the decision to proceed to caesarean section. I consider that both have the support of respectable medical opinion. Professor Thornton would first of all recommend a foetal blood sample in the context of continuing the labour, whereas Mr Woolfson would simply offer the choice of caesarean section or continuing the labour. As it happens, Dr Sirry falls into the camp of suggesting caesarean section first and only offering foetal blood sample if the mother wants to proceed with the labour. I see nothing wrong with any of these approaches. However, it seems to me that the key to the choice depends from the Obstetrician's point of view on the degree of his suspicion of the risk of scar dehiscence, and from the mother's point of view on her knowledge of the risk.
62. Both Professor Thornton and Mr Woolfson, it seems to me, recognise the importance of the expectant mother appreciating the risk of scar rupture and, in particular, the circumstances in which it can arise. Professor Thornton said in terms, as did Dr Sirry, that he would expect her to have been told before the trial of labour started.
63. This leads me to consider the case of Chester v Afshar [2005] 1 AC 134. This concerned a decision whether to undergo a particular operation which the claimant would have undergone in any event, but, had she been given the information which it was held she should have had, she would not have undergone it at the particular time that she did. The operation had adverse effects which were a known risk. The House of Lords by a majority held that she had a right to be told of the risk; that in the light of the fact that she would not have undergone the operation at the time she did, the failure to inform her of the risk caused her to sustain the adverse effects that, as the judge found, probably would have occurred, if she had had the operation at some other time.
64. In my view, that was a very different situation to the present case. However, much of the reasoning informs the approach to the question of whether or not an informed decision was made to opt for the foetal blood sample.
65. As Lord Bingham in his dissenting speech said at paragraph 5 in respect of the "duty to warn Miss Chester of a small (1%-2%) but unavoidable risk that the proposed operation, however expertly performed, might lead to a seriously adverse result":

"The existence of such a duty is not in doubt. Nor is its rationale: to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies."

66. Lord Steyn referred with approval to the following passage in the judgment of Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR p53 at p59:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt."

67. Lord Hope in Chester at paragraph 86 affirmed the duty in these terms:

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

68. Chester is suggested by Mr Miller to be irrelevant to the instant case. Insofar, as his suggestion relates to the issue of causation, I agree. In my view, if the facts show that the Khalids were not informed of the essential risk in proceeding with the trial of labour and it is determined that they should have been and were not, then their decision to proceed was an uninformed one. Since the decision to proceed with the labour undoubtedly led directly to the actual timing of Fahima's delivery at 08:16, whereas a decision to terminate the labour would have led to an earlier caesarean section, then the issue of causation appears to me straightforward. The problem that arose in Chester does not arise.
69. I turn now to my findings.
70. Midwife Han was in breach of duty in not calling Dr Sirry at 06:15.
71. If Dr Sirry had been called he would have attended at about 06:20, and after an appropriate consideration of the history, the CTG and examination of the mother, would have suggested to her delivery by Caesarean Section. It was his evidence that, when he in fact attended at 07:20 and had reviewed the history and CTG and had carried out a vaginal examination, his first thought was to do a caesarean section.
72. The Khalids say they do not recall mention of caesarean section when Dr Sirry attended at 07:20, although accepting that he may well have done. However, I am satisfied that Dr Sirry would indeed have suggested caesarean section at around 06:30. I am satisfied that at that time he may not have strongly advised caesarean section and they were likely to have wanted Baira to continue with the trial of labour provided it was safe to do so.
73. Contrary to the diagramatic order of Dr Sirry's note when he made it, I am satisfied that at the time of the actual discussion just after 07:20, it was his first reaction to the pathological trace to advise caesarean section; that he had no enthusiasm for proceeding with the labour; that he only offered a foetal blood sample when the Khalids indicated that they wanted to carry on. His lack of enthusiasm for carrying on the trial of labour and his own preference for caesarean section, therefore, was likely to have been similar if he had attended around 06:15 and when he would have returned later for the hypothetical second visit.
74. Returning to the hypothetical first visit, I am satisfied that, although the CTG trace would have been pathological for some 40 minutes by that time, it was nonetheless proper for Dr Sirry to allow the trial of labour to proceed subject to close monitoring of the situation, because it is likely that there would have been no other sign to increase the risk of scar dehiscence at that time; that it would also have been proper for him to advise a foetal blood sample to satisfy himself and the Khalids that the baby was not hypoxic; that there was nothing at that stage to suggest that a scar rupture was imminent, although there is the expert agreement that the pathological trace on its own increased the risk of scar dehiscence prospectively.
75. As to whether Dr Sirry should have advised caesarean section strongly at that stage, I accept Professor Thornton's evidence that a respectable body of medical opinion would not have required strong advice at that stage.
76. In my judgment, however, the Khalids, in particular, Baira Khalid, needed to have sufficient information on which to base any decision whether or not to proceed with the trial of labour at whichever stage is under consideration. By that I do not mean overloading them with technical medical information, but rather a simple explanation of what the possibilities were.
77. Although doctors may regard the offer of taking a foetal blood sample in these circumstances as an alternative to caesarean section, logically that cannot be correct. As I have indicated, the true options lie between caesarean section and allowing the trial of labour to continue. The foetal blood sample can only reassure, if normal, that the baby is not yet acidotic or, if not normal, in other words it is showing that the baby is acidotic, then it will indicate that caesarean section is now the only safe course.
78. I cannot see the problem in simply indicating this much to the parents in this situation. On the other hand the problem with not doing so means that at best they do not have a clear understanding of the significance of the foetal blood sample and at worst will be given a false sense of security when the known risk, albeit small, of scar dehiscence and rupture, remains and can still materialise at any time.
79. The facts of this case indicate only too well how that can be. I have heard nothing from the experts to inform me that what occurred was unheard of. On the contrary, Mr Woolfson and Professor Thornton both explained clearly how the foetus may cope for some time following the start of the rupture. Whether there is frank bleeding from the scar also depends on rupture itself. In this case there was no evidence of bleeding until the operation itself.
80. Insofar as the parents have to make a decision whether to proceed with the trial of labour or proceed to caesarean section, that needs to be an informed decision. As events were to show it is clear that the Khalids did not have sufficient information on which to base their decision that night, until Dr Sirry finally spelt out the risk of damage to the baby.
81. However, on balance, I am prepared to find that, had the Khalids been told in terms by Dr Sirry at 06:30 that it was still safe to proceed with the trial of labour, they would have decided to do so. I note, in particular, that when he attended Mrs Khalid just after 05:20, as he says in his statement, he explained that the drop in heart rate could be due to the epidural or possibly head or cord compression. This shows that he was prepared to explain in simple terms the reason for the apparent abnormality in the CTG trace and, as I have found, to discuss the matter in simple and understandable terms. It makes it the more surprising when he says that he would not have mentioned the risk of scar dehiscence at that stage or, in particular, at 07:20 when he in fact attended.
82. As a result of the Khalids' hypothetical decision at around 06:30 to proceed with the labour, I find that Dr Sirry would have taken a foetal blood sample which would have shown normal at around 06:45; that he would have left instructions to be called as necessary; that Midwife Han would probably have called him some time before or when she did in fact call him at 07:15. In fact having noticed at 06:45 that the bladder was visible, Midwife Han did the catheterisation and vaginal examination at 06:50. Had Dr Sirry attended before 06:30, he would probably have carried out a vaginal examination, noticed the bladder and catheterisation would have followed, possibly a little earlier than in fact it did. It is less likely that Midwife Han would have carried out a further vaginal examination. It is, therefore, a matter of speculation as to when she would have decided to call Dr Sirry back or as to when he would in any event have wanted to return. All I can decide is that it is more likely than not that he would have attended before 07:20.
83. The crucial difference, however, would have been the fact that he was now attending having discussed the options of caesarean section or continuing with the trial of labour about an hour earlier. Although Dr Sirry says that he would have done and said nothing different, I cannot accept that entirely. It does not make logical sense to me that his discussion about caesarean section would have been as low key as I have found it probably would have been at 06:30. I can understand Dr Sirry's difficulty in projecting himself into this hypothetical situation, as he himself said in evidence. It is something which a legally trained mind is better at doing than a medically trained mind which is more used to dealing with real situations.
84. Midwife Han recorded dilation at 4-5 cm at her vaginal examination at 07:00. Dr Sirry recorded 6 cm at his which probably took place just after 07:20. As Mr Woolfson pointed out assessment of dilation is just that. It is not precisely measured and one person's assessment may differ from another's. On the assumption that he would have performed a vaginal examination some time before 06:30, then his subsequent examination which he says, as I accept, he would have performed at his later visit, would have given him the chance to assess progress for himself: he would have simply been comparing his own assessments. From what is now known was happening as from just before 07:00, it is likely that he would not have found any significant change in dilation.
85. That is rather different from what he actually deduced with reference to Midwife Han's recorded 4-5 cms at 07:00, namely that, even allowing for different subjective assessments, there appeared to be some progress in dilation.
86. As for the crucial rate of contractions it is known that for the period up to 07:00 it was recorded by Midwife Han at 3 in 10 minutes. Had Dr Sirry been called at about 06:15, he would also have assessed them at the same rate. In my judgment, it would be wrong to assume, that having himself had this early opportunity of assessing the rate he would necessarily have gone on to misinterpret the rate after 07:00 when he saw Mrs Khalid. To make that assumption would be to accept that, in spite of the agreement of Mr Woolfson and Professor Thornton that the CTG trace properly interpreted did not show the number of contractions that Dr Sirry said he thought it did, Dr Sirry would necessarily have made the same error.
87. I am satisfied that Dr Sirry, attending for the second time in an hour, when in fact unknown him to the scar had already began to rupture, and having assessed the progress in terms of dilation as being less significant than in the event he recorded it, is less likely to have misinterpreted the CTG trace and more likely to have ascertained the true rate which is agreed by the experts to have been 1 in 10 minutes after 07:00. There is also, as I see it, no way of telling whether Dr Sirry would have had the opportunity of palpating a contraction, as he did in fact. Much would depend on precisely when he did his various examinations. However, on the assumption that he might have done so, it would have done no more than indicate the true rate, which was 1 in 10.
88. Thus Dr Sirry hypothetically at around 07:20 would have been comparing his own subjective assessments of dilation; more likely than not he would have discovered the true rate of contractions, which he would, as he said, have recognised as an important sign in addition to the pathological trace. These factors, as I find, would have led to him concluding that the risk of rupture had increased significantly above the 50% that he would have assessed at around 06:30. From my understanding of the literature as interpreted for me by Mr Woolfson and Professor Thornton, this would have reached the stage of being 'ominous' thus rendering the taking of a foetal blood sample a waste of time.
89. Whilst I quite understand Professor Thornton's point that the cause for the pathological trace would still have been unknown and prospectively still could have had a cause other than scar rupture and Dr Sirry's point that the baby's head was still available to him in order to attach the foetal scalp electrode as late as just before 07:47, yet nevertheless, it was known that a scar dehiscence and rupture could occur over a period of time without causing distress to the baby until some time after commencement of the rupture, as in fact happened in this case. To this extent, where Professor Thornton says that the rupture was not foreseeable, he is not using that term in the forensic or ordinary sense. He is simply saying that until the baby starts actually to show distress, there is no way of knowing that the scar has started to rupture. In terms of risk of this occurring, however, I am satisfied that, once there is a second sign, such as the decrease in strength and, in particular, rate of contractions, then the risk has increased to the stage where caesarean section is the safe option and that it is of the utmost importance that the mother should be told, not only that this is so, but in the simplest terms why it is so.
90. It is of interest that Dr Sirry in his written statement says that, when the bradycardia occurred following the start of the epidural at 05:00, he specifically considered whether it was due to the epidural, head compression or cord compression. It notable, that in respect of his visit at 07:20 he does not appear to have looked for such alternative possible causes for the pathological trace. Professor Thornton said that he would expect an obstetrician in Dr Sirry's place to look for other possible causes of what would be an unexplained pathological trace, but it seemed to me in the end that this had to depend on the degree of suspicion that the doctor had as to the risk of scar dehiscence: the greater the suspicion the less likely is the doctor to concern himself as to other possible causes and the more likely is the doctor to go for the safe option of terminating the trial of labour.
91. It is for the reasons I have given that I am satisfied that Dr Sirry, finding the CTG trace still pathological, by this time pathological for over 1 ½ hours and taking into account these factors, would have been more anxious to deliver the baby by caesarean section than he would have been at 6.30 and, therefore, would have given stronger advice to the Khalids to stop the trial of labour. He said in terms "If the frequency of contractions had diminished I would urge caesarean section." I am satisfied that by this stage he would have told them of the risk of damage to the baby if there was not a caesarean section, particularly if either of them had questioned the need to stop the labour; that faced with being told of that risk the Khalids would have made the same decision they did in fact make when told of such risk, albeit in the stronger terms that Dr Sirry had to employ. In other words, although I am satisfied that Dr Sirry would not have used the strong terms, at around 07:30, as he did ultimately use, they would still have been sufficient to lead the Khalids to decide to go for caesarean section. In those circumstances, I am satisfied that it is more likely than not that the operation would have taken place more than 20 minutes earlier than it did; that, therefore, the breach of duty caused the operation to take place 20 minutes later than it should have taken place and Fahima to be suffer damage that should would not otherwise have suffered.
92. Whether, Dr Sirry himself was in breach of duty depends, in my judgment, on whether his actual misinterpretation of the contraction rate when he visited at 07:20 amounts to a failure to exercise the ordinary skill of a doctor in the speciality of obstetrics. Mr Woolfson was clear in his view, that this was such a failure; that the interpretation of the slight movements on the bottom line of the trace as contractions was not reasonable. Professor Thornton said he would not criticise Dr Sirry for interpreting the CTG trace in respect of the rate of contractions as he did. However, I was left in some state of confusion in respect of Professor Thornton's evidence on this particular topic. He gave his opinion that, if there were contractions in the period following the movement artefact shown on the trace recording the tightening of the CTG belt (07:10 and 07:20), they would have shown on the trace. Nevertheless, he went on to say that there must have been a point when Dr Sirry recognised the actual reduction in rate. Professor Thornton sought to excuse him on the basis that, once he was committed to obtaining the foetal blood sample, he and the staff would not be looking at the contractions. In the end, I formed the view that Professor Thornton was attempting to excuse Dr Sirry's failure to detect the significant change in the rate of contractions, rather than indicating that a reasonable body of obstetricians would have made a misinterpretation to similar effect. The impression that I have, considering the evidence as a whole, is that Dr Sirry relied on Midwife Han's telling him that she had recorded the contraction rate at 3 to 4 in 10 minutes and on his own fortuitous feeling of a reasonable contraction rather than forming any positive view of the trace baseline at the time; that his interpretation of the trace so far as rate of contractions are concerned is retrospective.
93. I am satisfied that the change in the nature of Baira Khalid's pain and change in shape of her 'stomach' that she described, coincided with the prolonged bradycardia and, therefore, were not signs that could have been detected earlier. I am satisfied that this was one of those scar ruptures that did not cause bleeding such that it was a sign of a rupture in progress, until towards the end of the rupture.
94. In my judgment, Dr Sirry was himself in breach of duty in failing to recognise the significant sign which was there for him to see, namely the change in rate of contractions from 3 to 4 in 10 minutes before 07:00 to only 1 in 10 after that time; that had he done so, his suspicion of possible scar rupture would have been heightened to the extent that he would not have wanted to waste time taking a foetal blood sample and would have advised the Khalids that caesarean section was really the only safe course; that given clear advice to that effect and the absence of the kind of reassurance that in fact appeared to be given by the foetal blood sample there would have been no basis for questioning the advice; that Dr Sirry would have proceeded, as I find, he wanted to proceed in any event, to arrange for immediate caesarean section. There might not have been the same urgency, but in view of the fact that the actual operation was set up and completed from beginning to end in some 25 minutes, I can see no reason why there would have been any delay at or just before 07:30 when, as I find, the decision would have been made, whether following the hypothetical second visit in the hour or the visit at 07:20.
95. For similar reasons, therefore, I am satisfied that it is more likely than not that the operation would have taken place more than 20 minutes earlier than it did; that, therefore, this breach of duty caused the operation to take place 20 minutes later than it should have taken place and Fahima to be suffer damage that should would not otherwise have suffered.
96. There will be judgment for the claimant with damages to be assessed in due course. There should be a case management conference before the Master at the earliest date and before the end of May next to determine the necessary further directions towards trial of damages.
97. I am indebted to all counsel and experts for the assistance they have given me in this case.