Mother of brain damaged baby fails in damages action against health board over midwives’ negligence

The woman “AW” raised an action against Greater Glasgow Health Board alleging negligence of midwifery staff during her pregnancy leading up to the birth of her son on 8 October 1996.

However, the Inner House of the Court of Session ruled that the pursuer failed to establish that the midwives’ negligence caused the baby’s injuries or that the delivery by caesarean section by would have taken place earlier if the midwives had not been negligent.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Drummond Young, heard that the boy, who was delivered by c-section at 32 weeks, has cerebral palsy with learning and behavioural difficulties.

The court had heard that an unscheduled scan, which had been arranged for the pursuer on 8 October through her antenatal class, had showed poor blood flow within the placenta and low foetal weight.

The pursuer was hospitalised and the baby delivered by caesarean section.

He was born in a poor condition, including low heart rate and bluish discolouration, and was immediately incubated and treated.

The advice on eventual discharge was that the baby should be treated as normal and that there were no indications of long term health problems.

However, problems did develop over time, with the child failing to meet developmental milestones, or thrive.

The mother argued that this condition was caused by an Acute Hypoxic Ischaemic Insult (AHII) around the time of his birth.

The case was based on the alleged negligence of two midwives who made a home visit to the pregnant woman on Saturday 5 October 1996.

The pursuer argued that if the midwives had referred her to hospital on that date, her son would have been born by caesarean section before the AHII event which she claimed led to his cerebral palsy.

The Lord Ordinary ruled that the midwives had been negligent at the visit.

Although they had measured the baby’s heart rate and taken a blood sample, they had not taken a urine test, not recorded blood pressure, failed to record symptoms reported by the mother suggestive of the condition pre-eclampsia and failed to refer her to hospital.

However, the judge ruled that the action failed on causation, as even if the woman had been referred to hospital earlier than she was, there was no evidence that the baby would have been delivered prior to the event which was said to be the cause of his cerebral palsy.

He also held that although the midwives had been negligent that negligence had no causative effect because any referral to hospital prior to her actual attendance at hospital would not have resulted in an earlier caesarean section.

The pursuer maintained that LW’s cerebral palsy was caused by AHII, which began several minutes before he was born and which ended when he was about six minutes old, but the Lord Ordinary was not satisfied that such a cause had been established.

The grounds of appeal alleged “serious errors” in the Lord Ordinary’s analysis of these points, including that he failed to do justice to the evidence led by the pursuer; failed to give adequate or proper reasons for his decision; misunderstood passages of evidence and overlooked others.

It was said that the “cumulative effect” of the errors and omissions satisfied the test for overturning his conclusions on causation.

The reclaiming motion raised the issue of the extent of the powers that an appellate court has to interfere with decisions at first instance.

On the issue of the midwives’ negligence delaying the delivery, the three appeal judges observed that the Lord Ordinary had not properly considered all the relevant evidence, including all of the foetal symptoms.

However, to win the appeal, the pursuer required to establish that delivery of her baby would have taken place earlier if the midwives had not been negligent. Based on the evidence, this was not a conclusion they could draw.

The court further observed that the Lord Ordinary had not provided a judicial decision on whether the AHII had caused the son’s cerebral palsy, which meant the issue remained at large and the court had to consider it.

However, the judges ruled that the mother had not proven this connection on the balance of probabilities, as there were “too many uncertainties and inconsistencies within her case” and “too many doubts” raised by the clear evidence of other possible causes.

Delivering the opinion of the court, the Lord Justice Clerk said: “Where, as here, a pursuer has to prove a particular causal relationship, all she need do is to meet the standard of marginal probability. However if she fails to do that her claim falls to be dismissed. It is not necessary for that to happen that the court has been able to make the further step and find that an alternative explanation is more likely…

“Nevertheless, the fact that alternatives can be put forward which are supported by evidence as possible explanations for the relevant outcome, as is the case here, is of obvious relevance to the question as to whether the court can be satisfied that the pursuer’s explanation meets the standard of marginal probability. Having given the pursuer’s case as careful consideration as we have been able to give it, we consider that she has not met her probandum.”