C sues… claiming damages for the brain injuries he suffered at his birth by emergency caesarean section. He was born at 11:13 am on 9 September 2012. The Hospital was the first defendant to the claim. The trial judge held that the Hospital had been negligent because failures in its systems for providing the necessary staff caused delays in carrying out the C-section at a time when the fetus was being deprived of oxygen. Those delays were the cause of C’s injuries. The Hospital appealed against that finding but their appeal was dismissed by CA. There is no appeal to the Board from that finding of liability against the Hospital. [1]
Dr P Persad. He was the consultant obstetrician and gynaecologist Dr P was not employed by the Hospital. As a private consultant he had admitting privileges allowing him access to the Hospital and making available to him the staff he needed. This is not a case, therefore, where the Hospital is vicariously liable for any failures of Dr P as the attending consultant. The conduct of the Hospital and Dr P and the extent of any failings by them must be assessed separately. [2]
The trial judge dismissed C’s claim against Dr P holding that his conduct had not fallen below a reasonable standard of care. CA allowed C’s appeal against that conclusion. They held that the judge had erred in the conclusions she had drawn from the evidence before her and that her dismissal of the claim was inconsistent with factual findings that she had made. In particular, they held that the trial judge had been wrong to absolve Dr P of responsibility for the fact that there was no monitoring of the fetal heart rate (“FHR”) during the period – about 50 minutes – M was in the operating theatre waiting for the C-section to be performed. The evidence established that over this period the fetus was being deprived of oxygen. The FHR would have shown abnormalities indicating that the fetus was distressed. Because Dr P did not know that the fetus was distressed, he did not act with the degree of urgency in delivering the baby which would have been appropriate and with which he and the team could and would have acted if they had known that fact. [3]
Dr P now appeals to the Board against the Court of Appeal’s decision to overturn the dismissal of the claim against him. [4]
The judge’s findings as regards the alleged failure to monitor the FHR can be summarised as follows… But C was not adequately monitored in utero from the time M was taken to the operating theatre until C’s delivery.
The main point on which CA disagreed with the trial judge was in rejecting her conclusion that because the actual monitoring of the FHR would have been carried out by the midwives, that meant that Dr P could not be blamed for the fact that no monitoring was carried out in the operating theatre. CA held that Dr P’s role “was overarching and supervisory of the entire process” [31]
CA explained its approach at the outset of its consideration of Dr P’s role, stating that it was not the findings of fact that were primarily challenged but rather the inferences that the judge drew from them. Having described what happened on that morning, CA said that the judge had “reduced Dr P’s role to one closer to an observer of events until such time as the delivery was imminent”. In doing so, she had erred in drawing the wrong conclusions from the evidence about Dr P’s role and responsibility. That justified CA in this case departing from the usual judicial restraint in interfering with the trial judge’s conclusions based on the evidence as she found them. Her conclusions were not reasonable having regard to the whole of the evidence and the duty placed by law in these circumstances. [36]
The Board agrees with that analysis of how CA approached its task and finds that the Court was justified in interfering with the trial judge’s conclusions. This did not involve disturbing any findings of fact made by her. [37]
In the Board’s judgment CA was right to hold that Dr P was negligent in failing to ensure that he kept himself and his team aware of the FHR which would have indicated the distressed condition of the fetus during the crucial period of the second stage of labour in the operating theatre. Although no doubt it is the midwives who would actually have carried out the FHR monitoring in the operating theatre, it was Dr P’s responsibility to ensure that he had the information he needed to be able to assess the condition of the fetus. He should have been aware throughout of whether or not the fetus was in distress so that he could act accordingly. It is not a matter of holding him responsible for the failings of the midwives or of the Hospital. [39]
The Board is firmly of the view that CA was right to hold that Dr P was negligent in failing to ensure that he [was] aware of the baby’s condition during the 50 minutes when M was in the operating theatre. [42]
The Board therefore concludes that Dr P’s appeal should be dismissed. [69]
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