Mother of baby born with cerebral palsy successfully establishes ultrasound should have been ordered on due date

About this case:

• Citation:
  [2025] CSOH 111
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Young

Claire Bayne (or Wilkie) raised a claim against Tayside Health Board in respect of the birth of her daughter, Masie Wilkie, in April 2010 at the Midwifery Led Unit at Perth Royal Infirmary. It was accepted by the defenders that, had the pursuer’s labour taken place at Ninewells Hospital in Dundee, Maisie would have been born free of injury. A proof was heard in respect of the issue of whether any breach of duty had occurred during the ante-natal period.

The case was heard by Lord Young in the Outer House of the Court of Session, with L Sutherland KC and H Masters, advocate, appearing for the pursuer and N Mackenzie KC and S Dundas, advocate, for the defenders.

Accurate transfer times

At the time of her pregnancy, the pursuer lived approximately midway between Perth and Dundee. While she received ante-natal care from the PMLU through her GP practice, she was aware she could give birth either there or at Ninewells. She was attracted to the PMLU for delivery because of the birthing pool option and she had been advised that it was more likely that she would have the baby delivered by a familiar midwife. However, she was not resistant to delivery of her baby in Ninewells if that was appropriate.

It was noted that the PMLU was an appropriate setting for delivering babies only where both mother and baby were assessed as presenting a low risk for complications. Ninewells, located approximately 22 miles from PMLU, possessed additional facilities if complications arose during labour. While the pursuer’s pregnancy was largely recorded as “green” in the assessment matrix, at around 36-37 weeks there was a concern that the baby was in a breech position.

An ultrasound confirmed the baby was in a head-down position, and she returned to the green pathway. On 1 April 2010, week 40 of the pregnancy, midwife Bannerman at PMLU assessed the pursuer and noted the SFH was at 37cm, having measured 38cm on week 38. While she was aware that the SFH was usually roughly commensurate with the gestation age, she was not told that a 3cm discrepancy was identified during that examination.

On 6 April 2010, the pursuer went into labour, five days after her due date. Shortly before birth, the foetal heart rate fell dramatically. A decision was taken to carry out an emergency episiotomy and Maisie was delivered at 1415 hours. As a direct consequence of both chronic partial hypoxia and an acute and profound hypoxic event during labour, Maisie was born with quadriplegic cerebral palsy.

It was the pursuer’s case that, had she been referred for an ultrasound on her due date of 1 April 2010, a growth restriction would have been suspected with the result that the pursuer would have been moved from the green pathway onto the red or amber pathway and taken to Ninewells to give birth. The pursuer further submitted that the defender had failed to advise her of the respective risks of delivery options available at PMLU or Ninewells, including accurate information on emergency transfer times.

The evidence of the pursuer and her husband was that they had been told that the expected transfer time was 12 minutes from PMLU to Ninewells, and that this would be faster than a porter taking a patient from the labour unit at Ninewells to theatre. However, the focus of submissions in this respect was that there was no guarantee given on when a transfer could be achieved.

Would have raised a concern

In his decision, Lord Young said of the first arm of the pursuer’s case: “I am unable to accept the evidence of the pursuer and her husband on this matter. It seems to me inherently unlikely that a midwife conducting a tour would suggest 12 minutes as a transfer time from PMLU to Ninewells which is significantly shorter than any of the times quoted by the midwives in evidence. A time of 12 minutes
would strike most people as an exceptionally short time to travel the 22 miles from Perth to Ninewells even in an emergency vehicle.”

He added: “There was a suggestion in the evidence of the pursuer that, in retrospect, she perceives that the information provided to her in relation to the PMLU overemphasised the positive features while underplaying the negative factors. I make no criticism of the pursuer if that is the impression left with her after what her family has experienced since 6 April 2010, but nor do I accept from the evidence before me that the defenders’ staff sought to mislead her as to the respective advantages and disadvantages of PMLU compared with Ninewells.”

As to whether the pursuer should have been referred for an ultrasound on 1 April 2010, Lord Young said: “The defenders’ protocol did require midwife Bannerman to arrange for an ultrasound scan of the pursuer once the SFH had been measured at 37cms on 1 April 2010. She would have been wrong to conclude that a referral was inappropriate once that discrepancy had been identified. It is a matter of agreement that if an ultrasound scan had been carried out, the scan would have raised a concern that Maisie was growth restricted and this would have resulted in the pursuer giving birth at Ninewells.”

He concluded: “If for any reason it had not been possible to arrange an ultrasound scan before labour commenced, labour would still have taken place at Ninewells as the pursuer would have been moved to the amber pathway while the ultrasound scan was awaited. At Ninewells, the pursuer’s labour would have involved use of a CTG to continuously monitor the foetal heartbeat, heart rate variability, and accelerations and decelerations after each contraction. Had Maisie shown signs of distress, the CTG would have alerted staff. Any indication that Maisie was suffering from distress would have resulted in her delivery being expediated before irreversible damage was caused.”

Lord Young therefore found the defenders liable to make reparations to the pursuer and directed a proof to be fixed for assessment of quantum.