Thomson (AP) v Lothian Health Board [2000] ScotCS 109 (20 April 2000)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Â£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

[1] The pursuer, who is aged 35, and her husband, Andrew Thomson, are the parents of Greg Thomson who born at 18.20 hours on 3 July 1992 at the Eastern General Hospital Maternity Pavilion. He is their second child, their son Luke being some years older than Greg. On 25 June 1992 the pursuer was admitted to the antenatal ward at that Hospital at 37 plus weeks with an unstable lie. The lie persisted and so on 2 July 1992 it was decided to induce labour. Induction of labour, however, failed. At about 16.40 hours on 3 July 1992 she was examined by Dr Susan Scott, a Registrar in Obstetrics, who discussed with the pursuer the need to carry out a caesarean section which the midwife, Nurse Bell noted, she had been very well aware of all along. In the three categories of need - emergent, urgent and elective - the operation in this case was urgent. I say that, notwithstanding that Dr Scott has described it as an emergency lower segment caesarean section in her operation notes as well as in her letter to the pursuer's general practitioner dated 21 July 1992, because at the proof there was no dispute that the operation in the circumstances fell into the middle category. While the operation was required, there were no signs of foetal distress or deterioration in the pursuer's condition. So there was ample time to consider and carry out the necessary procedures for a caesarean section.

[2] At 17.05 hours she was visited by Dr David Ball, who was then aged 32, and at the time was a Registrar in Anaesthetics, having earlier in the year obtained his Fellowship of the Royal College of Anaesthetists (FRCA). He began to specialise in anaesthetics in February 1989. He has been a Consultant Anaesthetist in Dumfries & Galloway Royal Infirmary since July 1997. I should mention here that two expert witnesses gave evidence at the Proof, one for each side. Dr Thorburn who was led by the pursuer, was, until he retired in 1996, a consultant anaesthetist at the Western Infirmary and the Queen Mother's Hospital, in Glasgow. He is currently the President of the Scottish Society of Anaesthetists. He co-authored a textbook "Obstetric Anaesthesia" which was published in 1987. Dr William Frame who gave evidence on behalf of the defenders, is a consultant anaesthetist at Glasgow Royal Infirmary and Glasgow Royal Maternity Hospital. He is currently Clinical Director of the Anaesthetic Service in the Glasgow Royal Infirmary University NHS Trust. His special interest is obstetric anaesthesia and analgesia. A particular interests of his, is spinal anaesthesia in relation to caesarean sections. Both have Honorary Senior Lecturer status at the University of Glasgow. Because he is retired, Dr Thorburn now lectures only occasionally.

[3] According to the pursuer, Dr Ball came to see her in the labour suite some time after 5.00pm. He told her that he was going to give her an epidural injection. She however explained that she had had it at the birth of her first child in 1989 and that it had not worked very well. Dr Ball then said he would give her a spinal block which went into a different part of the spine. He explained the nature of the operation - how the baby would be delivered and thereafter she would be stitched up. She might feel a pushing and pulling sensation which he demonstrated on her thigh, but otherwise she would not feel the operation. She told him that she did not want to be in pain. She went on: "He said I wouldn't feel pain." He did not discuss the possibility of pain during delivery. No plan was agreed in the event of the pursuer experiencing any pain. "I said if I felt pain I wanted to be knocked out. He said I wouldn't feel any." The discussion in the labour suite took about five minutes. She did not know by the end of that discussion that she could ask for and get a general anaesthetic.

[4] Dr Ball accepted that he would have had a pre-operative consultation with the pursuer, but he had no recollection of meeting her. He was able to speak therefore only generally about what he might have said, basing that upon what he normally said to patients in 1992 at such pre-operative consultations. It was important, he said, to gather information from the patient. It was necessary to counsel the patient in order to obtain informed consent. He would offer a regional or a general anaesthetic. He would inform the patient that she could have a full general anaesthetic should she need or want it. The decision reached between the patient and himself was a spinal block. It was important to remember that none of the procedures was perfect. A full general anaesthetic was offered as a safety measure. No form of anaesthesia could be guaranteed to be perfect and over the years he had considered it important to state that to patients. He might have said that even with a perfect spinal block some sensation might be transmitted which he would have illustrated by pushing and pulling on her thigh. He did not remember the pursuer saying that if she felt pain she wanted to be knocked out. He could accept that she might have said that. He, for his part, would not deny anyone an anaesthetic. It was common practice for him to agree a plan with the patient in the event that the spinal block proved inadequate. He always asked his patients if they had questions and he was guided by their responses. The pursuer's case was not emergent: only urgent. There was no rush. So he made time to talk. At the end of that, he thought that he had informed consent. The best option was a spinal block with a general anaesthetic if necessary. In approximately nine years he had converted from a regional to a general anaesthetic about three times. More commonly the regional anaesthetic would be supplemented by forms of analgesia such as nitrous oxide or opiates intravenously.

[5] In cross-examination Dr Ball agreed that it was a stressful time for pregnant mothers. The pregnant mother had to be carefully informed about the plan for anaesthesia. He could advise and give recommendations. It was his practice to mention that the spinal block might not work. He accepted that he had to agree with the patient what to do if it did not work. He had to be sure that the patient understood the advice he gave. If the spinal block in fact did not work, notwithstanding any previously agreed plan, he considered that he still had to confer with the patient to determine whether she was sore. If she explained that she was in pain, she had to express her views with regard to a general anaesthetic, despite any previously agreed plan. The patient, after all, could change her mind and prefer other ways of dealing with pain than a general anaesthetic. What he (Dr Ball) was taught was to say to a patient: "If you are sore, please tell me and I'll do something about it, up to and including a general anaesthetic."; and, "Do you have any questions?" He said that now, and he said that in 1992 to all his patients. He did not think the he would warn about pain or suggest that the patient might suffer pain, but he would mention it, as in, "if you feel any pain, please tell me". He did not say to the pursuer that she would not feel any pain because he could not guarantee that she would not feel pain. Indeed, it was not possible that he had said that. In July 1992 he was a post-fellowship registrar with considerable experience in anaesthetics. "Don't worry. You will not feel a thing" is not something he could say or ever had said. Dr Ball said that he was sure in this case that he discussed the question of a general anaesthetic with the pursuer. He would not have left her without coming to a satisfactory arrangement with her before the operation commenced.

[6] Both experts, Dr Thorburn and Dr Frame, said that a pre-operative discussion with a patient about to undergo a caesarean section, was essential. Patients in that situation were often extremely tense and anxious, said Dr Thorburn. Most preferred to be asleep. So a full explanation had to be given why a spinal anaesthetic should be used. It should also be explained that such an anaesthetic might not always be completely effective. Indeed, it was of paramount importance to explain that to the patient. No ordinarily competent anaesthetist acting with reasonable care could fail to do this. At the same time, the anaesthetist should explain that he could put the patient to sleep at any time in the procedure. It was important therefore that a general anaesthetic should be explained in advance. It was not ideal to ask the patient about this later during the operation. She might then be distressed. He thought that during the operation it had to be discussed. "You then," he said, "speak to the patient and say that you are going to put them asleep". It was a balancing exercise. On the one hand, he did not want the patient to continue to be distressed, while, on the other hand, he did not want the patient to be alarmed. That was what he did, and he thought that any reasonably competent anaesthetist would do it also. In short, there should be a brief discussion about possible failure of the spinal anaesthetic followed by the possibility of a general anaesthetic if that became necessary. There can be no guarantee, he said, that everything will be pain free, but it should be said that there might be discomfort which could be alleviated by a general anaesthetic.

[7] Dr Frame said that at the pre-operative consultations he discussed with the patient the various options for anaesthetic. He would ask the patient if she had had a general anaesthetic before and whether that had presented any problems. Similarly he would ask the patient if she had had a local anaesthetic before and whether there had been any problems. Did the patient wish to remain awake or not? He would then advise on the spinal anaesthetic. The patient should not expect to feel nothing. There would be at least a sensation of pushing and pulling. The patient should not anticipate that she would feel pain. But if she did, something could be done about it. He would explain about pain relief in the post-operative period. "If there is anything you wish, just ask me", he would say. If a colleague said to a patient: "you may still have a sensation of pushing and pulling. If you feel sore, something can be done about it up to and including a general anaesthetic", he would think that entirely reasonable. He would have no reservation about that. In cross-examination he agreed that the patient had to understand that the spinal block might not be effective and it could be that she might feel pain. He would say that in the event that she did feel pain which was extremely unusual, something could be done about that. He would not say: "Don't worry. You won't feel pain." If she felt pain and wanted to be knocked out, he would say that she should have a general anaesthetic, although that was extremely unusual. It was not routine, in his experience, to come to an agreement with a patient at that stage. Patients change their mind in both ways. It was very difficult in his view to determine the patient's attitude pre-operatively. When he was asked "What if the patient said, pain is a problem for me, and if that happens, I want a general anaesthetic?", he replied that it informed him of the position at that time. But that position could change. It had only happened to him once during an operation that the spinal anaesthetic was found not to be effective. He then asked the patient if she wanted him to put her asleep. It was not likely that a patient in that position would refuse, but it could happen.

[8] The pursuer recounted in her evidence how the injection was administered in the theatre during which her husband was present. After the injection she was slowly laid on the operating table. He husband sat at her head. Dr Ball asked her to lift her legs. He sprayed cold liquid on her body and legs. He asked her if she could feel it and she replied that it felt colder on her chest than on her legs. Immediately after, he used a needle to prick her skin. There was no gap between any of Dr Ball's actions which appeared to her to be continuous. Right away after spraying her with the liquid Dr Ball moved to her head and gave the surgeon a nod to indicate to her to proceed with the operation. She said that she was generally a bit anxious but was looking forward to having her baby. While she did not feel the initial cut, she felt everything else after that. She felt her internal organs being moved. She felt hands inside her and, above all, intense pain. She told the anaesthetist to stop because she felt sore. Although she herself could not remember it, she accepted that he asked her if she wanted a general anaesthetic and she said "No". She thought that she was in no fit state during the operation to answer questions. She did not know why she refused it. She felt very distressed. When asked by her counsel how distressed she felt, assuming a scale of 1 to 10, she said: "12". She gave an account of rocking from side to side on the table. She thought that she was going to die. Then everything went quiet. It was pitch black. She could not feel pain any more and she could hear her husband saying to her "Will you breathe. Will you please f'ing breathe", over and over again. Quite some time after all that and after the child was delivered, she received pain killers in the form of diamorphine.

[9] In cross-examination she reiterated that she did not herself remember Dr Ball asking her if she wanted a general anaesthetic. She did, however, remember him saying to her that he could not give her a general anaesthetic while the baby was still inside her, or could not do anything more until the baby was out of her. (That recollection forms the basis of the averments at the top of page 7 of the amended Closed Record. In his own evidence, Dr Ball denied ever saying that.) The pursuer agreed that she would have expected the doctors present to have been aware that she was suffering distress of the order that she recounted in her evidence. It would have been obvious to them since she told them that she could feel pain. She expected there to be a sensation of pushing and pulling as Dr Ball had said: but what she experienced was much more than that. It was real pain. She was clear that ten minutes did not elapse between the spinal block and the commencement of the operation. Everything was done one after the other, and not at three minute intervals. It surprised her that neither Dr Scott nor Dr Ball considered the operation in any way unusual or abnormal.

[10] Her husband said that he was with the pursuer when Dr Ball came to see her before the operation. He could not remember much about what Dr Ball said. His wife, however, said that she wanted knocked out if she got that pain, as he put it. Dr Ball assured her that everything would be all right. In theatre, after the injection had been administered, Dr Ball squirted water and that on her. To the woman doctor Dr Ball said "not quite". Then, having gone to the head of the operating table, he nodded his head to the woman doctor. Everything was carried through with not a great deal of time in between. He remembered Dr Ball saying that she was not ready. In a minute, she might be. He could remember Dr Ball pricking his wife with a needle. Possibly he could have asked her to move her legs. He thought that the moment after the initial cut his wife felt everything. He could see the look of horror in her face. Later on he became worried because it appeared that she was not breathing. The anaesthetist asked her if she wanted knocked out. He thought that his wife shook her head: she was not in a fit state to answer, since she was in too much pain. He had never seen such pain in her or anyone else before or since. No one asked him whether she should have a general anaesthetic.

[11] In cross-examination Mr Thomson said that his primary concern in the operating theatre was for his wife. His primary concentration was therefore on her and not on what anyone else was doing. It was a very anxious time. As he put, it did not seem to go right after the cut. It was her lack of breathing that first caused him to be worried about his wife. It seemed to him that when hands were inside her, she became distressed: but when hands were withdrawn, she did not seem so bad. He confirmed that when the pursuer was offered a general anaesthetic she shook her head to say "No".

[12] According to midwife Bell's notes the pursuer was ready for theatre at 17.20 hours and she was moved to theatre at 17.56 hours. Miss Bell made these entries at the time of the second entry. As she explained, every time she made an entry, she signed it. The timing of events thereafter in theatre she took from Dr Ball's record. This is set out in what is headed "Epidural Chart". The pursuer, of course, did not receive an epidural injection, but the Chart was adapted as a spinal anaesthetic record. It should be noted that it is wrongly dated, "3/7/91". Instead, of course, it should be, "3/7/92". There are two versions or editions of this Chart. That there are two, was not explained in the evidence. In production 8/1 at p.111 is to be found the version completed exclusively in the hand of Dr Ball. The production 18/1 has 8/1 as its basis, but another, unidentified hand has later completed it. In 18/1 Dr Ball has added in his own hand "Husband present" above the graph. When he did this and, indeed, how he came to do this was not explored in the evidence which I heard.

[13] At the bottom right hand side of the graph Dr Ball contemporaneously, by reference to his watch or the theatre clock, wrote "Ix 18.15", and "Deliv. 18.20". He explained that "I" meant "incision" - that is, the commencement of the caesarean operation - and "x" was a cross-reference to "x" on the graph against the time 18.15 on the graph. He said that "I" was a common notation for "incision". It did not, nor was it intended to refer to injection. Since it was accepted in the evidence that from the point of incision to delivery of the child in a normal caesarean section it would take a minimum period of five minutes, it becomes obvious that "I" must mean incision, as Dr Ball said it did. Nurse Bell in her transcription on page 126 of 8/1 is therefore in error when, later, she recorded that the spinal anaesthetic was inserted at 18.15 hours. She is also wrong when she recorded that the pursuer was catheterized at 18.16 hours. She is however correct that the baby (Greg) was delivered at 18.20 hours and that the placenta and membranes were delivered at 18.21 hours. It is, of course, apparent from the Chart (in both versions) that the time when the spinal anaesthetic was administered is not recorded. What can at least be said is that it must have been between 18.00 hours when the graph was started, and 18.15 hours. (I shall explain shortly what I mean when I refer to the graph being started). It is important to understand this because the pursuer's expert, Dr Thorburn, who is an undoubted and very well recognised expert in the field, said that he placed some reliance on Nurse Bell's record and, while his opinion which I shall come to in due course, did not entirely proceed on her record, it must substantially have proceeded on the basis that the spinal anaesthetic was administered at 18.15 hours in view of the pursuer's case which founded upon that at p.6 of the Closed Record. I am surprised that in the context of a non-emergency caesarean section he conceived it to be possible, as he said in his evidence, that the spinal anaesthetic could have been administered at 18.15 hours.

[14] So, when was the spinal anaesthetic administered? Dr Thorburn said that he would have expected that time to have been recorded. Dr Frame, the defenders' expert, an anaesthetist of equal eminence, said that it was not routinely noted when such an anaesthetic was inserted. The important point, Dr Frame said, was to know the end point, namely when it was effective. If Dr Ball followed the correct procedure, that end point must have been about 18.15 hours. According to Dr Ball, he had everything prepared in advance. He was assisted by an anaesthetic attendant whose identity remains unknown. The pursuer would have been positioned in a seated position on the operating theatre table. His assistant would have applied the safety monitors. They measured diastolic and systolic blood pressure, and pulse readings, together with the percentage of fully oxygenated blood in the patient's system. She was breathing enriched oxygen through a face mask. At about that time Dr Ball said he was scrubbing up ready for the regional, spinal anaesthetic. The monitoring machine was set to calibrate at five minute intervals. The first readings recorded by Dr Ball are at 18.00 hours. They record blood pressure. There is then a gap until 18.10 hours. It was in that period, said Dr Ball, "that I inserted the spinal anaesthetic, because by 18.10 I had taken off my gloves and was writing up the record." It seems reasonable to conclude, as I do, that the injection was in place by about 16.05 hours. That, as Dr Frame said in his evidence, is consistent with the gentle drop in systolic blood pressure recorded on the Chart which occurred from that time onwards. And, as Dr Thorburn accepted, the fact that no blood pressure was recorded at 1805 hours is consistent with Dr Ball's administering the spinal injection at that time. In the Spinal Audit Form (18/2) which he completed some time after the operation, Dr Ball recorded that on a second attempt he achieved a successful insertion in the sub-arachnoid space between lumbar vertebrae L2 and L3. He recorded there and on the Chart the needle he used with an introducer. A clear CSF was obtained on the insertion of the fine needle. There was no pain. Dr Ball then proceeded to insert 0.5% bupivicaine which he described as heavy. At some point the patient was tilted to aid the process of anaesthesia.

[15] The next stage, which is that of testing the effectiveness of the spinal anaesthetic, was critical. The anaesthetist must satisfy himself about this before he can advise the obstetrician that the operation can proceed in safety to the patient. According to Dr Ball, and indeed both experts, the anaesthetist must be satisfied that the anaesthetic has proceeded to the level of the thoracic vertebra, T4, bilaterally. At that time in 1992 Dr Ball carried out three forms of check. First he sprayed appropriate parts of the patient's body with ethyl chloride, a cold solution to elicit whether the patient had any sensation in these parts. He also applied a needle to these areas for the same purpose. Finally, he would enquire if the patient found her legs heavy on trying to raise them. Having satisfied himself that the spinal anaesthetic had reached T4, i.e. about nipple level, he would see that everyone was in position for the operation to commence and then asked the obstetrician to make a test incision to confirm that the anaesthetic was effective. The only note on the Chart which Dr Ball made, says: "Checked. T8/8 at 3/60". If it be assumed that the injection was in place at 18.05 hours approximately, as I have held, this means that Dr Ball elicited a loss of sensation at the level of T8, bilaterally, at approximately 18.08 hours.

[16] What happened between then and 18.15 hours since there is no further contemporary record? It was suggested in cross-examination of Dr Ball that he carried out no further tests thereafter but proceeded on the reasonably predictable assumption that in another seven or eight minutes the anaesthetic would have reached T4. Dr Ball repudiated that suggestion with some vehemence. He had never ever done that, although he was aware that in some places (unspecific as to location and country) that might be done. He maintained that he continued with the forms of test I have set out, although he could not remember how many times he applied the test. Only when he was satisfied from these tests that the anaesthetic had reached the level of T4, did he give the go ahead for the operation to commence. And so it did. From the surgeon's point of view Dr Scott said that there was nothing unusual in the operation. She was not aware that the patient was in extreme pain or in an extreme state of distress, which she thought she would have been aware of if that had been the case. The only unusual feature concerned the uterine anatomy which Dr Scott recorded in her surgical notes at 8/1 on p.11. That was nothing to do with the extreme pain which the pursuer said that she experienced. The midwife, Nurse Bell, also noticed nothing unusual in the operation. She thought that if Dr Scott had seen the pursuer in considerable pain or distress, she would have halted the operation to make the patient more comfortable.

[17] Meanwhile, at the top end of the operating table, Dr Ball said that he became aware that the pursuer had begun hissing. He asked her what was wrong. She replied that she was sore. He was sure that this was after the baby was delivered. He then offered her a general anaesthetic, which he had talked to her about in the pre-operative consultation, but she declined it. The pursuer herself did not recall this, but her husband, who was present and close to Dr Ball, remembered it. It was in these circumstances that Dr Ball recorded on the Chart: "Very sore on Peritoneal Traction. (Declines G.A.)." In the Spinal Audit Form Dr Ball answered "No" to the question "Was the block adequate?", and added "Apparent block okay but sore on mobilising uterus." He explained in evidence that mobilising the uterus would have been at about the same time as peritoneal traction. On both forms he recorded that supplementary analgesia was required. In the Chart he recorded "diamorp(hine) 7.5 i/v at 18.30". In the Spinal Audit Form he recorded the diamorphine as having been given "on delivery". When she refused the general anaesthetic Dr Ball felt at the time that she was able to make that decision. Syntocinin and Cefiroxine were administered by him to the patient after delivery on the direction of Dr Scott. These two drugs are recorded on the Chart.

[18] The readings on the graph ceased to be recorded by Dr Ball at 17.55 hours. They show a steady pulse rate and a gently descending blood pressure from the time shortly after the spinal anaesthetic was probably administered and throughout the operation. The experts differed in the inference which could be drawn from these readings. They were however agreed that if the spinal anaesthetic had proceeded only as far as T8, these readings would be quite different. Dr Frame was of the opinion that they were extremely suggestive that the spinal anaesthetic was adequate. If the pursuer had suffered severe pain or discomfort, he would have expected to see that reflected in a rise in her pulse rate. If the block had reached T4, that by and large might dampen the pulse rate but one would still expect to see some increase in the pulse rate. The blood pressure might not rise, however. Dr Thorburn agreed that the drop in blood pressure indicated the administration of the spinal block between about 18.00 and 18.10 hours. When he was asked if the blood pressure and heart rate readings were not indicative of a patient in extreme pain, he said that they did not indicate anything and that nothing could be read into them. Both readings were affected by the spinal injection. When he was then asked if a patient could be in extreme pain if the pulse rate was steady or dropping, he replied that that could be so because of the block, whether it was adequate or inadequate. Since I am called upon to make a judgment with regard to these conflicting opinions I can say immediately that I prefer Dr Frame's opinion. In the first place, what Dr Frame said accorded with his experience. Extreme pain was always accompanied by an increase in pulse rate, even when the patient was under a spinal block. Secondly, Dr Frame explained the scientific basis for this medically or clinically observed fact. The cardiac sympathetic fibres come off the spine between T2 and T5. If the block went as high as T2, it would have been high enough to prevent an increase in pulse rate and it would clearly also have been clearly adequate for a caesarean section which requires the block to T4. If the block had been to T4, he would still have expected there to have been some increase in pulse rate if extreme pain was being experienced. The reasons which Dr Frame gave made sense to me, and accepting them as I did, I preferred his opinion to that of Dr Thorburn on this matter.

[19] If the spinal block was inadequate so that the patient suffered extreme pain throughout the operation, as she later maintained to the locum consultant, that, I think, must have been reflected to some extent at least in an increased pulse rate, especially if she made attempts to leave the operating table and had to be restrained as she said, according to Mrs Gray-Taylor's report. There is, in short, nothing in the contemporary reports by Dr Scott and Dr Ball to support the pursuer's account of what happened. It is, without doubt, clear that at some point in the operation she reported that she was so sore that the anaesthetist, Dr Ball, offered her a general anaesthetic. She was certainly given, according to Dr Thorburn, quite a large doze of diamorphine, namely 2.7 millilitres; 2.5 millilitres was more usual, he said.

[20] The pursuer said that she was very, very upset after the operation. She did not however communicate that to Nurse Bell who had no recollection that she was immediately distressed. But by 5 July 1992 she is recorded in the hospital notes as "very weepy and upset". She said that she could feel her section being performed due to the anaesthetic not being effective. She described it as a nightmare. On the same day she was visited by a locum consultant, Dr Gilbert. He did not give evidence, but he recorded in a full entry in the hospital notes that she was very unhappy - that she felt considerable pain during the procedure and that she was not given a general anaesthetic. Dr Gilbert went on:

[21] It should be emphasised that, apart from the pursuer and her husband, there are no other sources to substantiate that she felt pain throughout. That is not recorded contemporaneously in her notes, nor did anyone else present at the operation observe that according to the evidence which I heard.

[22] Dr Ball visited her on 8 July 1992. According to the pursuer, she said to Dr Ball that she was not happy. He responded by saying that if he had given her a general anaesthetic in face of her refusal, she could have sued him for abuse. Dr Ball's recollection of the meeting was that it was amicable, but she did say to him that he should have knocked her out. She was not in a fit state to decide. "Don't worry", she said, "I won't sue you." Dr Ball thought that very unusual. It was the first time that anyone had said that to him.

[23] As I noted at the time, Dr Ball appeared to me to be entirely honest, credible and reliable. He did not give me he impression of being slapdash or lacking in conscientiousness. If anything, he seemed somewhat pedantic. The procedure was well within his competence. The operation was not an emergency one. So there was no need to take any anaesthetic shortcuts. I accepted his evidence and preferred it to that of the pursuer and her husband where their evidence differed. I do not believe that either of them had an accurate or reliable recollection of what was said by Dr Ball, and, as I will explain later, I think they greatly exaggerated what happened during the operation. If what Dr Ball said he would have communicated at the pre-operative consultation is accepted, that was acceptable to Dr Frame and it would not have been faulted by Dr Thorburn, even if he might have expressed matters a little differently.

[24] I have already explained why I am clear that the spinal injection was administered at 1805 hours. Three minutes later when Dr Ball tested for the pursuer's reaction to that injection, he found that it had reached T8 bilaterally. According to Dr Frame's evidence which I accept, if a block has gone to T8 after three minutes, it would certainly go a good deal higher. He had never seen a block fail to do that. I accept that Dr Ball tested the ascent of the block again, and that by 1815 hours he was satisfied that it had reached the right level for the necessary incision to be made. He signified that to the surgeon, Dr Scott, and marked on the Chart, "Ix". I accept that "I" in anaesthetic shorthand means "Incision", notwithstanding Dr Thorburn's apparent ignorance of that. I also conclude that "x" can be regarded as the end point for the spinal block. So the injection was administered at 1805 hours and was tested and found to be apparently effective at 1815 hours, ten minutes later. According to Dr Frame, the correct notation for such an injection would be something like "Sp" with an arrow to indicate spinal. That makes me all the more surprised that Dr Thorburn, having considered all the circumstances, could have conceived, as he undoubtedly did, that "Ix" meant injection and that it was administered at 1815 hours, with a test at T8 carried out three minutes later, and delivery at 1820 hours, two minutes after the T8 test. Plainly, the pursuer's original case was based upon this assessment of the circumstances and it was not only wrong but hardly likely to have been correct in the case of a non emergency delivery. Overall, I must say that I found Dr Frame to be the more impressive witness.

[25] What happened thereafter in the operation is less clear. I have no doubt that, as Dr Ball recorded, the pursuer was sore or very sore on peritoneal traction or mobilising the uterus. But if that amounted to extreme pain, it was not reflected in the pursuer's pulse rate. I have accepted Dr Frame's evidence that had there been such pain, it would have been reflected in her pulse rate. I do not for a moment accept that the pursuer was rocking from side to side on the operating table or that she had to be restrained from leaving it. Had that been the case, Dr Scott and Nurse Bell would have noticed that, but neither of them noticed anything unusual in the operation. In my view the pursuer, and to a lesser extent her husband, were guilty of very considerable exaggeration about what the pursuer experienced. I think what she did experience was considerable discomfort which distressed her as the surgeon went in to remove the baby from the uterus. Mr Thomson said that it seemed to him that when hands were inside her, the pursuer became distressed. When they were withdrawn, she did not seem so bad. He also confirmed that, when offered it, the pursuer declined a general anaesthetic. In that situation I do not understand what more Dr Ball could have done than in fact he did, there being no case that, notwithstanding her refusal, he should have attempted to persuade her otherwise.

[26] In my opinion the pursuer has not established either of the two cases of fault she has made against Dr Ball. I will therefore repel all her pleas; sustain the defenders' third and fourth pleas; and grant decree of absolvitor.

[27] I turn now to the question of damages. In her evidence the pursuer described the day of Greg's birth as the worst day of her life. She found that she had no emotions towards Greg. Every time she looked at him it reminded her of that day. This went on for about the first four years of his life. She frequently felt very guilty that she had these feelings. She ceased having sexual relations with her husband because she was anxious not to become pregnant and she lacked the necessary emotional stimulus. Only recently had she and her husband got it together again, as she put it. On the advice of her solicitor she consulted a clinical psychologist, Mrs Valerie Gray-Taylor, whom she attended in May 1998. Mrs Gray-Taylor diagnosed that she was suffering from post traumatic stress disorder as a result of the birth, and advised her to have counselling. The pursuer said that she still had awful guilt about Greg. It could be related to the learning problems which Greg has. Four or five times a week she had these feelings which she related to her son's birth - the worst day of her life.

In cross-examination the pursuer accepted that she had a history of gynaecological problems before Greg was born. They also continued after his birth. During the birth of her two children endometriosis was diagnosed as the cause of a problem she had suffered from for some years. So she underwent a left salpingo-oopherectomy in January 1991. Within a year of Greg's birth she was sterilised. In May 1995 she had a hysterectomy and a right salpingo-oopherectomy. The groin abscesses from which she suffered from the age of 17, continued, and she had a further operation for their excision. She was put on HRT following the hysterectomy. That provoked hot flushes, night sweats and mood swings, but she did not think that she was then depressed. In 1996 it was recorded that she had varicose veins in both legs following her last pregnancy. Later, she had these operated on. The first entry in the GP records which relates to the pursuer's emotional reaction to Greg's birth is a letter to Dr Milne, her gynaecologist, from Dr Gebbie of the Family Planning and Well Woman Services dated 14 January 1997. Dr Gebbie wrote:

[27] Considering all the medical hands the pursuer went through since 3 July 1992, I do find it very remarkable that it appears that it took her four and a half years to articulate her feelings in relation to her experience at the time of Greg's birth to any physician. It is all the more remarkable in view of the fact that this action had been raised in 1995 ahead, of course, of the expiry of the triennium. It also devalues to some extent the conclusion Mrs Gray-Taylor reached in her report on page 9:

The fact, however, is that in 1997 the pursuer experienced suicidal thoughts and had been prescribed anti-depressants since July 1997. When Mrs Gray-Taylor saw her, she presented with symptoms of severe clinical depression and anxiety. The only possible explanation for the delay in the appearance of these symptoms if they are related to Greg's birth, is avoidance behaviour on the pursuer's part. As Mrs Gray-Taylor said, avoidance behaviour can block out what happened. If so, it was such an effective block, not even the pursuer's mother, to whom she was close, knew until 1997 that her daughter had failed to bond with Greg. And yet, on the other hand, the pursuer demonstrated symptoms that, according to Mrs Gray-Taylor, fulfilled the criteria for a diagnosis of post traumatic distress disorder. While the tests are largely in the nature of self reporting, that of itself does not affect a diagnosis made by skilled and experienced psychologist.

[28] For the reasons I have already given I am clear that the pursuer did not suffer the extreme pain she says she did in the course of the caesarean section operation. She did not, as she told Mrs Gray-Taylor, try to climb off the table but the surgeon held her on. That simply is a flight of imagination on her part. It raises in my mind the thought that the pursuer may have a powerful imagination which has elevated the experience she underwent when Greg was born into something much more extreme, so that, in the years following, she has convinced herself that the incident was so traumatic as to be life threatening. Thus, what Mrs Gray-Taylor found by way of symptoms demonstrating that the pursuer was suffering from post traumatic stress disorder, were not properly related to the nature of the trauma that she in fact experienced during the operation which I have held was extreme discomfort causing distress. In these circumstances I am not persuaded that the pursuer's present psychological condition can properly be regarded as having been caused by the caesarean section operation she underwent on 3 July 1992. If I had found liability established, I would have awarded the pursuer the sum of £1,500 to reflect the extreme discomfort and distress she experienced at the time, and the discomfort she felt post-operatively. Since all that was sustained in the past, interest would run on the whole sum at the rates of 71/2% from 3 July 1992 to 31 March 1993, and at 4% thereafter to date.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson (AP) v Lothian Health Board [2000] ScotCS 109 (20 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/109.html Cite as: [2000] ScotCS 109

Scottish Court of Session Decisions