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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 >> Boustead v North West Strategic Health Authority [2008] EWHC 2375 (QB) (16 June 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/2375.html Cite as: [2008] EWHC 2375 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY

		Royal Courts of Justice Strand, London. WC2A 2LL
		16/06/2008

Mr Justice Mackay:

1. Simon Boustead was born on 12 February 1987 and now suffers from cerebral palsy with moderate learning disability, dysarthria and right sided hemiplegia. The experts agree that he suffered brain injury due to an intraventricular haemorrhage (IVH) and the serious consequences which flowed from it. He claims that the care provided for him and his mother during her pregnancy and labour and during the neonatal period was negligent.
2. The claimant's mother was 14 years and 5 months old when she gave birth to him on 12 February 1987. She had become pregnant when she was still 13 and did not tell anyone for the first four months. Other considerations apart there were three risk factors present for her, her youth, her social circumstances (her father was not at home and her mother often had to be away on work) and the fact that she first sought medical attention relatively late in her pregnancy.
3. She had an ante-natal appointment at the City Maternity Hospital Carlisle ("the hospital") on 21 January 1987, and she and her mother had discussed matters and decided that the baby should be adopted. Her pregnancy was uneventful until early February when she had a show of blood. The hospital was a satellite of and about 2 miles away from the Cumberland Infirmary, at which there was a Special Care Baby Unit and where the paediatricians were based. If a case warranted their attendance they were sent for and could arrive generally within 10-15 minutes. It is a District General Hospital and delivers about 2000 babies each year. Mr Rangecroft, the relevant Consultant in this case, had been a Consultant there since 1969.
4. She went to the hospital on 4 February at 1450 hours complaining of loss of blood per vaginam and period-like pains. She was said to be 27 plus weeks' gestation by scan. She remained in the hospital for the next eight days and Simon was born on 12 February at 2035. All the experts agree that this was bound to be a very high risk pregnancy.
5. Though there have been different estimates from time to time as to the number of weeks' gestation, the defendant accepts, and it seems to me broadly to be likely, that by the time his mother presented herself at the hospital on 4 February the foetus was of the order of 28 weeks gestation. All such estimates are inexact and capable of being wrong by at least a week in either direction, as is common ground. Broadly speaking, in the days which followed the hospital treated the mother conservatively, following a strategy that the longer the delivery could be delayed the better the prospects for the foetus both in terms of survival and absence of disability. As Mr Rangecroft was to put it it could have gone on for a month, and he would plainly have been happy if it had done so as he would then have been dealing with a baby that much closer to term.
6. The case for the claimant, again in general terms, is that a more aggressive or proactive approach should have been taken. He says he should have been transferred to the regional centre for tertiary referrals at Newcastle General Hospital for the management of the labour, the delivery and his neo-natal care. It is further alleged that later in the eight day period there were indications that made it negligent not to procure his delivery by caesarean section, and had this been done he would have avoided hypoxic damage which was a significant cause of the IVH which he suffered a few hours after his birth, and which is the agreed cause of his disability.
7. One consequence of this claim being brought so late is that it places all the witnesses of fact in the gravest difficulty. Without exception they had in very large measure to rely on such medical notes as have survived, which were fortunately reasonably full and were conscientiously kept. But there are suggestions that in places they are not 100% complete and that there are some notes of relevance which have not survived. I am satisfied that all factual witnesses were candid and doing their best to be accurate when refreshing their memories in this way, but all encountered great difficulties in so doing. One of the midwives Mrs Moffatt could remember Belinda being very unhappy in the ward with the older women, because she was so much younger, and that she and others therefore spent a lot of time with her chatting and giving her hot chocolate. Mr Rangecroft the Consultant Obstetrician and Gynaecologist also has a recollection of her case, as in his long experience both as a consultant and before he had had the care of no more than half a dozen mothers as young as this. Notwithstanding that, he was like other witnesses in difficulties recollecting specific discussions or incidents and is to be entirely excused for that.
8. Broadly there were three periods into which the mother's stay in the hospital can be divided. For the first 24-48 hours she was in some pain, was intermittently bleeding and no doubt was very worried. She then settled between 6-10 February and had little by way of symptoms of significance. The final period on 11-12 February led into her labour and delivery at 2035 on the 12^th. It is said that there were clear signs which required different treatment to be given to her case in all three periods than was in fact given, and that the treatment that was given was negligent in certain respects. It will be necessary to consider the main features of her case as they appear from the notes without attempting to give a complete account of every attendance upon her or every note or record kept. Before doing so however I must deal with two necessary preliminary issues.

The Legal Test for Clinical Negligence

9. Although the test for clinical negligence is well established, it is easy after five days spent listening to extensive evidence, in which such phrases as competent care or sub standard care are freely used, to forget the test to be applied in these cases and to be drawn into the error of deciding which side has presented the better case for a given course of action. As is well known, in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587 McNair J said that a person professing particular skill is -

"....not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art"

In the House of Lords' judgment in Bolitho v City and Hackney Health Authority [1998] AC 232 at 241H Lord Browne - Wilkinson said:-

"Also ... the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such an opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits the judge before accepting a body of opinion as being responsible reasonable or respectable will need to be satisfied that in forming their views the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter".

Transfer to a Tertiary Centre

10. At various stages between 4-12 February it is said that it was negligent of the hospital not to cause the mother to be transferred to Newcastle General Hospital, which together with the Princess Mary Maternity Hospital in that city constituted the tertiary unit for receiving pregnant mothers from the 21 District General Hospitals of the northern region of England. The two were subsequently amalgamated. It is argued that if that had been done the management of the mother would have been different and better, that the claimant would have been delivered by caesarean, and above all would have benefited from the facilities at Newcastle to check and monitor the claimant's blood gases following his premature delivery, a facility not available at Carlisle.
11. I heard evidence from Mr Ian Wagstaff, a retired Consultant in obstetrics and gynaecology, now an emeritus consultant at Newcastle, who was in post as a consultant at the relevant time. He had been in that post from 1976-2000. He has a considerable CV and research record.
12. From his evidence, which was not challenged in this respect, it is plain that the northern district had a very well developed system of referral in place at this time. There was no written policy, but Mr Wagstaff had undertaken a study, which became a paper delivered to the RCOG, which examined the transfer activity in the region, particularly "in utero" transfer in the years 1982 and 1985. His conclusions were that the number of such transfers could be safely reduced and replaced by post natal transfers of babies recovered by the so called "paediatric flying squad" based in Newcastle without any diminution in the standard of care given.
13. As to the mechanics of a proposed transfer, he said that the decision to transfer the baby in utero, as against achieving a local delivery, was conditioned by the presence of any obstetric complications and the considerations of distance. Carlisle is 55 miles from Newcastle and the journey between the two at that time was by means of a difficult single carriageway road, and would have taken at least an hour and a half in his judgement in mid winter. Such a journey put the mother at risk if her pregnancy was complicated by hyper- tension, ante partum haemorrhage, premature labour or abruption of the placenta. Having read the notes in this case he thought the combination of symptoms displayed by the mother represented a potentially unstable situation and that a transfer would have posed a risk to both baby and mother. I could add that such a transfer would in this case have kept this anxious 14 year old a long way from her own mother for over a week.
14. If she had been transferred his evidence was that there was no guarantee that a caesarean would have been performed, as the claim at one time assumed, and he said that the philosophy of the consultants in Newcastle at the time would have been to do everything possible to achieve greater maturity for the foetus and a vaginal delivery. In the case of a 14 year old mother his evidence was that everything would have been done to procure a vaginal delivery. There was a risk in such a case that the lower segment of the uterus could be poorly formed and narrow which would have meant that the surgeon would have to resort to what he called a "classical caesarean section" which might lead to future risks of uterine rupture and complications in future pregnancies. Essentially his evidence was that the best person to judge whether a transfer was appropriate was the consultant in charge of her in Carlisle, and he considered Mr Rangecroft an experienced and astute consultant working in a unit with a sound reputation.
15. Dr Edmund Hey gave evidence which was read and unchallenged. He was at the relevant time a consultant paediatrician and neonatologist at Newcastle and confirmed the arrangements for referral which he described as a well integrated system at the time. He agreed with Mr Wagstaff's evidence and his paper to which I have referred. He said the norm at the time was to deliver the baby in the DGH and then summon the paediatric flying squad from Newcastle if necessary. If he had been asked to sanction a pre-delivery transfer and there was any risk of an eclamptic fit during it, or a vaginal bleed or a precipitate delivery then such a transfer "would not have been an option". He added that all paediatric SHO's in the region had been given hands-on practical training in managing a baby at birth where resuscitation was needed prior to transfer to Newcastle, should that prove necessary. The neonatal experts in this case agreed that Dr Hey enjoyed a very high reputation in this field.
16. Professor Dalton, the obstetric expert for the claimant, identified literature of the time showing that Newcastle was indeed very good at accepting transfers, which on the other evidence I do not doubt. His view and that of Dr Miles, the Claimant's expert neonatologist, was that there was one compelling reason for such a transfer, the blood gas facilities available there. Dr Miles went so far as to say that every 28 week old baby should be delivered at a hospital with a SCBU and blood gas facilities, as one simply cannot stabilise such a premature baby without knowing what the blood gases are, particularly whether it has a low pH which increases the risk of IVF.
17. As to when this should have been done, Prof. Dalton's final position (it was initially a little hard to identify exactly what he was saying) was this. She should have been transferred as soon as she arrived at Carlisle on the 4^th . With the exception of a period between 2130 on the 5^th and 1300 on the 6^th, when the mother was bleeding, and during which time he said it was defensible not to have moved her, though many would, it was at all times both feasible and appropriate to transfer her, until 0230 on the 12^th, by which time her blood pressure had become dangerously high. I have to consider this allegation of negligence at the various stages, and looking forward in this judgment, in my view there was no stage prior to delivery at which the defendant could be said to have been negligent by failing to arrange the mother's transfer to Newcastle.
18. I must, I believe, accord great weight to the evidence from the two former consultants at Newcastle that a pre-delivery transfer was a potentially hazardous course for a young mother in the condition of Belinda Murray at this time and in general terms caution myself against a finding that because the facility was available it was therefore negligent not to take advantage of it. The consultant at Carlisle was the person in my view best placed to make this assessment.

The events of 4 and 5 February

19. On 4 February the claimant's mother had lost blood per vaginam and came to the labour ward of the hospital at 1450 complaining of pains since the loss. She was kept in overnight. The next day she received an ultrasound scan which found that her placenta was anterior, marginally low but "no major praevia" and there was no clear explanation for her bleeding. Through the evening of that day she had four more episodes of bleeding which continued intermittently the following day. She had some pain and contractions which were described as irregular and mild.
20. At 0420 on 6 February Dr Lawley, the senior SHO, examined her after she had had a further moderate loss of blood and some abdominal pain and found her blood pressure elevated. There was a short CTG trace showing a normal foetal heart rate, but it lasted for three to four minutes only. She formed the impression that there had been an abruption of the placenta possibly with pregnancy induced hypertension. The CTG was discontinued at this time. Professor Dalton was critical of this but Dr Rangecroft said that he thought that it was not an unreasonable action so long as the foetus was being listened to. The partogram suggests this was indeed being done at half hourly intervals throughout this day.
21. Mr Rangecroft saw her himself sometime in the mid morning and advised that the matter should continue to be treated as a threatened termination.
22. When the CTG resumed at about 1300 late decelerations of the foetal heart were seen. Both experts agree that these should be interpreted as pathological, in modern terminology. They showed late decelerations following contractions, albeit the baseline rate and variability are normal and there are occasional accelerations, all of which were positive signs.
23. The obstetric experts Mr Woolfson and Professor Dalton agree that on this evidence the foetus was hypoxic at this time. It is also agreed that it does not necessarily follow that hypoxic damage was being caused. It is the view of Mr Woolfson that the three normal features of the foetal heart rate pattern to which I have referred above suggest that the autonomic system was intact and was coping with the hypoxia; the foetal heart has reserves of glycogen on which it can draw to deal with transient episodes of hypoxia following an abruption or any other hypoxic incident.
24. Later that afternoon at 1540 the foetal heart again showed late decelerations again with good recovery and good variability. Mr Rangecroft agreed this was a pathological trace. His Registrar had written and crossed out the words "threatened abortion ??". He evidently informed Mr Rangecroft whose decision was that the pregnancy should be "allowed to progress". By 1849 that evening the CTG was normal and it was discontinued at 0100 on 7 February.
25. These events on 6 February raise an issue as to whether the response of Mr Rangecroft and his team was or was not negligent by the test I have set out above.

The choice of treatment on 6 February

26. Mr Rangecroft said he was not concerned when he saw the mother sometime in the mid morning, and that aurally the foetal heart was satisfactory. He agreed that by 1300 it appeared that the foetus was possibly hypoxic and it possibly could have been damaged at this point. Had this been a mature baby he said he might well have wanted to do a caesarean, but with a premature albeit viable baby over 28 weeks it would be debatable. He thought that mortality was then in the region of 50%, and that it was very unlikely that many other obstetricians would have done a caesarean on this mother with this history. As he put it "I'm strongly on the conservative side". After the trace at 1740 he was telling his staff to allow the pregnancy to progress. He was aware there was some risk to the baby but he thought the risks were less than those attaching to a caesarean.
27. Professor Dalton said that in the circumstances there were three options on this date. The first was to ignore the problem, which was inappropriate; the second was to keep monitoring and see what happened, though if that was followed there would be no way of telling how long it would have gone on for; and the third was to deliver the baby, and as it would not be appropriate to induce labour the only course was a caesarean. He said it was a difficult decision to take but the "recommendation would on balance be to deliver". He acknowledged the conflict of interest which was involved. It was to the mother's benefit to do nothing, but then the foetus might run into trouble. He would have explained the position to the mother, and he gave me a lengthy description of what that explanation could have contained, and then advised a caesarean.
28. In cross examination by Mr Seabrook QC for the defendant he accepted that it was very often the case that obstetricians had to make decisions to which there was no right or wrong answer, and that clinical judgement was very important in such cases. But he said he could not think of any defensible reason to carry on the pregnancy if they got the trace they had on 6 February.
29. Mr Woolfson for the defendants thought that there had probably been an abruption by this time and that the late decelerations were evidence of hypoxia. It is not possible to say whether brain damage had occurred at this stage. His view was that the foetus could cope with a transient episode of abruption and, as he put it, "you don't rush to theatre". He found the reasonable baseline for the heart rate, the accelerations and the beat to beat variability reassuring.
30. On balance he thought it wrong to deliver, as he put it, "at this time in this case". He saw no clear evidence of damage and that it was therefore appropriate to try and prolong the pregnancy, as abruptions do settle given time. He described in detail the difficulties inherent in a caesarean at this gestation, principally because the lower segment of the uterus would be unformed and would present the surgeon with difficulties which might include the need for a T incision in the uterus. This would increase the risk of haemorrhage and long term complications following scarring of the uterus, opening of the scar and rupturing in subsequent labours. It was for these reasons his view remained that a "wait and see" policy was appropriate at this stage. The foetus has the power to regenerate its reserves if the heart rate returns to normal, and it was fundamental to preserve the pregnancy as long as possible.
31. He accepted in cross examination that even with a 14 year old mother if Mr Rangecroft had advised a caesarean on 6 February he would have respected his decision, but, as he put it, many obstetricians would be very concerned about the age of the patient if anything had happened to her and would have feared that they might be in difficulties (by which I took him to mean of a medico-legal type) as a result.
32. He then added other problems, not apparent from his report, that were peculiar to a mother of this age. He said that as a rule they do not do as well as do older women. They have social problems and difficulties in their relationships and display a high perinatal and maternal mortality rate. He thought the average 14 year old would not be with the same partner, would be having more children in the future than a 20 year old would, and would face multiple sequential pregnancies. He thought the obstetrician should consider the likelihood of the future child-bearing pattern facing the very young mother. In effect he was saying that in 1987 there was a more paternalistic attitude than would be "politically correct" today, as he put it, with different consideration given to the wider long term risk to a young woman of this age. The philosophy was that it would be better to save the mother and lose the child. He conceded that if this case was about a 20 year old there would have been lack of competent care but the difference between a 20 year old and 14 year old was he said "indefinable".
33. As to what would have been the likely effect of a caesarean if carried out at this stage Professor Dalton said that was something outside his area of expertise, a rather surprising answer as I found it. Professor Wyatt, the paediatric expert for the defendants, gave evidence that though it was thought in the 70's and early 80's that caesarean sections did produce a better result for the foetus there is now no good scientific evidence supporting that as a general proposition - he produced a metaanalysis by Grant (2007) which he said was to that effect. As he put, it there is a trade off between a vaginal delivery and the benefits of a caesarean, in which latter case the foetus has not had the benefit of the physiological changes that prepare it for the world in the course of a vaginal delivery.

Conclusions on breach of duty on 6 February

34. I should give my views as to the respective merits of the witnesses who spoke on this issue. I found that Professor Dalton, as befits someone with his distinguished academic background, did take a rather more academic approach to the problem than other witnesses did. This led him to make a very large number of criticisms in his lengthy report, not all of which have been pursued by Miss Gumbel QC for the claimant, a wise judgement on her part. He also produced a wealth of medical text book authorities at the very last minute and in breach of a clear case management order, which never endears an expert to the court, and which placed the defendant's advisers in considerable difficulties. In the end I have derived very little assistance from that material.
35. I also found his views on transfer unimpressive and unreasonably persisted in in the face of the very clear and strong evidence from the Newcastle doctors to which I have already referred.
36. As for Mr Woolfson for the defendants he had the benefit of substantial experience as a consultant at a district general hospital and was a thoughtful witness who was not averse to making concessions when he thought them appropriate. Some of these I will have to consider in due course. I found him the more impressive and helpful witness of the two.
37. Mr Rangecroft was at the time of these events a consultant of 18 years standing, well thought of by his peers, an impressive and utterly honest witness. When asked the question whether, were he confronted with the identical problem today, he would take the same decision he said he would now do a caesarean section. But on questioning he did not say that this was just what would have been a wholly understandable reaction to the sad outcome in this case. He said it was because today he would have had steroids which would have helped the premature baby breathe after delivery and intensive care facilities are better. This is an example of his candour as a witness.
38. Miss Gumbel argues that his views were coloured by an incorrect assumption that this was always a borderline- viable foetus with poor prospects. She relies on the Infant Life (Preservation) Act 1929 and the medical advice given in the context of the reduction of the upper gestation age limit for abortions, which all suggests that a 28 or 29 week old foetus should not be so regarded. I believe the truth of the matter was that Mr Rangecroft like Mr Woolfson believed at that time that his primary patient was the mother and in so believing he would have been in the company of a considerable number of reputable obstetricians of that time.
39. As Mr Seabrook rightly submitted this was a very challenging problem and a difficult judgement to form, trading off the advantages and disadvantages of one particular course as against another. On this date the mother was at a relatively early stage of her problems and in my judgement it was reasonable for Mr Rangecroft to hope that no further hypoxia would occur and that no significant damage had been done on the 6 February, albeit if it had there was little that he could have done about it. Viewed as a clinical judgement it is difficult and indeed wrong at this stage of the history to attempt to second guess the clinician on the scene unless the case for so doing is made out. I am unable to say that at this time with this patient and these signs the decision to adopt the conservative approach that Mr Rangecroft evidently did adopt, in the hope that the foetus might gain further gestational maturity, was not a decision which would also have been taken by a reasonable proportion of his obstetric colleagues of the time. Therefore I do not consider that any breach of duty is made out at this stage.
40. For the rest of 6 February the problem appeared to be settling, the CTG was discontinued at 0100 on 7 February and it stayed discontinued until 2220 on 11 February. Throughout this period it is enough to say that the problem appeared to have settled. I consider the proposition that it was negligent to have discontinued the trace and that there should have been a continuous process of monitoring over this period to be unrealistic. Over these days the obstetric team must have thought that their wait and see policy was paying off.

Events of February 11 and 12

41. Towards midnight on 11 February the notes report fresh blood loss and definite uterine tightening. The CTG was restarted at 2220 and by 0030 it was recording "irregular fair contractions". By 0135 they were "occurring 1:5 moderately". Dr Rangecroft described the mother at this time (the cervix was 2cm dilated) as threatening to go into labour whereas Professor Dalton said that labour had begun.
42. Sometime in the course of the morning Mr Rangecroft's consultant colleague, Mr Brown, saw her and found her hypertensive. His view was that "delivery may need to be expedited soon".
43. By 1130 all are agreed that the mother was showing signs of fulminating preeclampsia and the SHO Dr Lawley discussed the matter with Mr Rangecroft. This is clearly a watershed moment. It was a worsening situation, said Mr Rangecroft, with the baby at risk and the mother at severe risk. The conservative approach was therefore abandoned and it became an active approach. He discussed the matter with his juniors and his consultant colleague and decided that the safest thing would be for the baby to be delivered vaginally, because such babies do better than those born by caesarean section and he did not feel that a caesarean was very satisfactory for the mother.
44. At 1230 on 6 February Mr Rangecroft accepts that the mother was in labour and she is noted as to be "for syntocinon [a drug to induce labour by stimulating contractions]. Epidural". At 1330 the foetal heart was decelerating with contractions and syntocinon was commenced. As to this decision Mr Rangecroft said that this was "quite a large drop" and would normally make you think about using syntocinon at all, which was contra- indicated where there were any foetal heart abnormalities. If there had been a series of late decelerations he would not have started syntocinon at all, but would have waited for spontaneous contractions. If spontaneous contractions had not then occurred there would have had to have been further discussions as to whether to wait longer or do a caesarean. Professor Dalton's view was that this was an inappropriate decision because of the clear evidence of decelerations. There was enough in the trace of that morning to show that when contractions were established there would be further late decelerations. He saw the choices as lying between sitting tight and not starting syntocinon or proceeding directly to a caesarean, and his view was that any reasonable obstetrician would at 1315 have opted for the caesarean. The mother had high blood pressure and could not hold on for ever.
45. At 1530 the foetal heart was recorded as dropping to 70 with contractions but picking up well, and the cervix was 2-3cm dilated. Dr Lawley ruptured the membranes (having made an unsuccessful attempt to do so at 1230). Repeated decelerations are shown at 1550 on the trace and at 1615 the syntocinon dose was halved.
46. Mr Rangecroft's view was that from 1530 they were "slightly anxious" but they knew that this would perhaps be a compromised baby because of the history of bleeding and it's prematurity. As he put it we "had to hope for the best".
47. In the joint report Mr Woolfson had agreed in terms that sometime between 1550 and 1620 the syntocinon should have been turned off. He agreed that the trace showed frequent uterine contractions indicating hypertonus at 1600, probably due to the syntocinon, and that a careful review of the case should have been carried out balancing the risk to the foetus of continuing syntocinon and the risk to the mother of not doing so. Instead, we see that at 1655 the syntocinon was increased.

Conclusions on breach of duty on 12 February

48. Mr Seabrook argues that the same issues are in play when considering the events of 12 February as were relevant a week before. It is only by about 1930, when there is unequivocal and clear evidence on the CTG of late decelerations that a rethink might have been called for, but by then delivery was imminent and followed fairly quickly.
49. The principal distinction, and I think the vitally important one, is that by mid morning on 12 February the "wait and see" policy was not an option and needed to be abandoned. The decision to administer syntocinon underlines the urgency which the hospital team was attaching to achieving a delivery. The mother had established fulminating pre-eclampsia by 1130 and was unequivocally in labour from 1230 and there is no doubt that from that point expedition was of the essence.
50. The foetus had acquired a further week's maturity since the issues on 6 February had been decided. The paediatricians' agreed summary of Dr Hey's papers is that even one week's difference in maturity results in a not insignificant alteration of outcome. To do nothing was out of the question. The only alternative to a caesarean now was a vaginal delivery, but one which had to be expedited by introducing an agent to induce labour and/or increase the strength of the contractions.
51. It is here that Mr Woolfson changed his views in a way which detracted from the force of his evidence on this issue. It is common ground that the use of syntocinon is contra-indicated where there is uterine hyperactivity (as there was here, and certainly by the time hypertonus was established at 1600), or foetal distress (which there was here at 1315 and 1530), and its very use may itself cause foetal distress, particularly in circumstances where there had been late decelerations detectable in the morning of that day.
52. Mr Woolfson felt it necessary to retract his answer in the joint report (Question 57) where he said syntocinon should have been turned off between 1550 and 1620. He now says it should have been turned down, and that he was happy with the reduction in fact made rather than discontinuing its use entirely. Indeed he thought it was perfectly reasonable to increase it at 1650. In cross examination he accepted that the general rule would be with a 28 - 29 week baby and a pathological CTG trace that syntocinon should not be started. If one took the case of a 28 week foetus, and a 20 year old mother with fulminating pre-eclampsia, in labour, you should not start syntocinon, he agreed, and unless she was 9cm dilated he would go for a caesarean. In short therefore he accepted that his position was that he was not critical of the decision made in the hospital here solely by virtue of the fact that the mother was 14 and not 20. All the other caesarean risks were the same, irrespective of maternal age.
53. In my judgement the weight of the "social considerations" that I have considered above in the context of the decision of 6 February had now been overtaken by the events which had taken place. An emergency caesarean section could have been achieved within 30-45 minutes of a decision being taken to do so at 1330, when the syntocinon was commenced, or at the latest 1530, when a further drop in the foetal heart rate, as I have recorded, made Mr Rangecroft "slightly anxious" and "hoping for the best". Looking at the trace throughout the rest of that day and in particular the section from 1900 through to the time of delivery, it is plain in my judgement that substantial further hypoxia and probable hypoxic damage would have been avoided by the decision to proceed to a caesarean. I am satisfied that the mother would have accepted advice to that effect if it had been given. I think it was now illogical, as it had not been before, to give the weight to her social position that appears to have been accorded to it, and the team was clinging to a strategy which had been defensible but was no longer so. Both mother and foetus were now at risk.
54. As Mr Woolfson said the difference between a 20 and a 14 year old in this context is an "indefinable" matter, and if the mother had been a 20 year old there would he thought have been a lack of competent care. In my judgement there was a negligent breach of duty judged by the standards of the time by virtue of the failure to proceed to an emergency caesarean section at either 1315 or 1530 on the 12 February.

Failing to measure blood gases after delivery

55. The paediatricians did not arrive from the Infirmary for five minutes after the delivery but this was understandable, was not in my judgement a breach of any duty and in any event it is agreed would have made no difference to the final outcome.
56. The only issue is whether the claimant should have had access to facilities whereby his blood gases could have been tested earlier than in fact occurred. I find there were none in Carlisle and therefore this could only have been achieved by a pre-delivery transfer to Newcastle. By the time the wait and see policy had to be abandoned on 12 February the mother was in no condition to undertake that journey.
57. After the Carlisle paediatricians attended to him he was eventually seen by the Newcastle flying squad team at about 0400 and transferred to Newcastle where his blood gases were established and he was ventilated. Dr Miles for the claimant says that no baby at this gestation should have been born electively in a unit that did not have blood gas facilities, and it therefore follows that he should have been transferred in utero so that this could have been done for him at birth, or very much sooner after his birth. As he put it in evidence every 28 week old child must be delivered in a hospital with a SCBU with access to blood gas because it is not possible to stabilise a premature baby without knowing what its levels are.
58. For the defendant Professor Wyatt was of the view that the arrangements made with Newcastle for the immediate management and post natal transfer constituted an acceptable standard of care for 1987 and by the standards of that time it was acceptable to deliver a premature baby at Carlisle with the intention of transfer following delivery. The claimant was in a moderate condition when born and needed some assistance, which he seems to have received (this is an area where there is reason to believe there are notes missing), and he seems to have been intubated and assisted with ventilation. There is an assumption that his C02 levels were high but it is very difficult to assess.
59. He relies on Dr Hey's view, a significant pioneer in this field as he called him, who had concluded, given the size of this region and the positioning of the tertiary centre, that the best strategy was to train up his paediatricians at the 21 hospitals within the regions, which he had done. As he put it it was a different conclusion from that we had come to in London, where he practised, but he would not say it was unacceptable. In effect Professor Wyatt's view was that Dr Miles was advocating a counsel of perfection, and the local arrangements made for this region were logical and reasonable. I agree.
60. In my judgement there is no finding of negligence appropriate in this respect.

Causation

61. The findings I have made above indicate that there was a breach of duty at the latest by 1530 which, had it not occurred, would have meant there would have been a caesarean delivery by 1600 or 1630 on 12 February. That means there was substantial pathological hypoxia for a minimum of four hours before delivery.
62. The paediatric experts agree that the cause of the claimant's current disabilities was IVH, some time in the first day or so of life, leading in turn to hydrocephalus, cerebral infarction and periventricular leucomalacia, all by a mechanism which they describe and about which they are in agreement.
63. The defence at paragraph 47 is in these terms :-

"The claimant's [IVH] was caused and/or materially contributed by the claimant's extreme prematurity, hypoxia at birth secondary to the retroplacental haemorrhage and respiratory illness due to lung immaturity requiring mechanical ventilation".

64. This in turn accords with the joint report (Question 15) where the experts were asked whether the causal factors identified in the passage from the defence set out above made a material contribution to the development of the IVH. They replied "We agree that all these factors were likely to have made a material contribution to the likelihood of the claimant developing IVH..."
65. In addition to that the experts agreed that a reasonable percentage of babies born at 28 weeks gestation in 1987 who would go on to develop IVH would be 10-20%, which therefore I take as representing the risk due to prematurity alone without other risk factors. When all the risk factors identified in this case are present they agree that more than 50% of babies with this combination of factors would develop some degree of IVH. They are however unable to identify or quantify the individual causal contribution made by each factor. The only level of disagreement between the experts is that Mr Miles for the claimant says that the relevant hypoxia for these purposes, which the agreement calls "hypoxia at birth" is that on 12 February when the final hours of the trace are very abnormal. He thought that if significant hypoxic damage (as opposed to hypoxia) had occurred on 6 February it had either recovered or the baby would have gone on to suffer brain injury or death from it. Professor Wyatt, for his part, cannot exclude the effects of earlier events on the development of IVH.
66. It appears clear to me that the appearance on the CTG on the afternoon and evening of 12 February of a rising baseline; a loss of beat to beat variability and late decelerations is significant in this context, as is the only moderate condition of the claimant at birth with a heart rate of only 60 beats per minute.
67. The claimant therefore argues that on the classical "but for" test for causation this injury would probably have been avoided had there been no such hypoxia, or to put it another way the addition of the hypoxia on 12 February made a material contribution to the occurrence of the injury.
68. Mr Seabrook argued that it is accepted that IVH commonly occurs in the absence of any placental abruption and from mere prematurity standing alone. It also can be caused by mechanical ventilation, again standing alone. He may therefore have had Respiratory Distress Syndrome leading to IVH even without the any breach of duty, and if any hypoxia did occur on the 12^th it would have made no difference because in a sense the claimant's fate was sealed prior to that date by virtue of the presence of other risk factors, predominantly prematurity.
69. Miss Gumbel counters that there was probably no brain damage from the episode on 6 February because of the way in which the problems settled between 7^th and 11^th and the relatively good stretches of trace that followed. That these are not competing causes which are mutually exclusive but are causes which act cumulatively seems to me to be apparent from the two answers in the joint report giving the percentages that I have set out at paragraph 64 above.
70. It seems to me to remain appropriate to approach issues of causation in a situation such as this by adopting the "robust and pragmatic approach to undisputed primary facts" which Lord Bridge described with apparent approval in Wilsher v Essex Area Health Authority [1988] AC 1074. The claimant unsurprisingly relies on Bonnington Castings v Wardlaw [1956] AC 613 at 622 where the contribution of the "guilty" dust causing the disease could not be established. All that could be said was that the proportion which came from the guilty dust was not negligible. On that basis Lord Reid said that the defendants did in fact contribute a quantity of silica dust, which was not negligible, to the pursuer's lungs and therefore did help to produce the disease. That case was followed in Simmons v British Steel PLC [2004] ICR 585 by Lord Hope at 591H.
71. On that traditional basis, which I think applies to a case such as this where there are concurrent cumulative causes of a condition, the claimant has satisfied the burden of proving that the defendant's breach of duty made a material contribution to his current disabilities.
72. For the reasons given there must therefore be judgment for the claimant for damages to be assessed, and I will hear counsel on any directions appropriate at this stage.