AW v Greater Glasgow Health Board

A mother who sued Greater Glasgow Health Board for damages alleging negligence during her pregnancy has lost her appeal at the Court of Session. The following is a summary of the Opinion of the Court delivered by Lady Dorrian, the Lord Justice Clerk, who heard the appeal sitting with Lord Brodie and Lord Drummond Young.

In her damages claim, the pursuer had sued the Health Board alleging negligence of midwifery staff during her pregnancy leading up to the birth of her son on 8 October 1996.

The boy, who was delivered by caesarean section at 32 weeks, has cerebral palsy with learning and behavioural difficulties. The mother argued that this condition was caused by an Acute Hypoxic Ischaemic Insult (AHII) around the time of his birth.

The case is 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 judge hearing the initial case 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, not recorded symptoms reported by the mother suggestive of the condition pre-eclampsia and not referred her to hospital.

However, the judge ruled against the damages claim saying that the mother had not proven that the negligence had led to the cause of her son’s cerebral palsy.

The judge ruled that even if the woman had been referred to hospital, there was no evidence that it would have led to an earlier caesarean section. He also ruled that the mother had not established that her son’s cerebral palsy had been caused by an AHII around the time of his birth.

The Court had heard that an unscheduled scan had been arranged for the pursuer on 8 October through her antenatal class. This had showed poor blood flow within the placenta and low foetal weight. The pursuer had been hospitalised and the baby delivered by caesarean section. He was born in a poor condition, including low heart rate and bluish discolouration. He 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. It was not disputed that the baby had suffered from restricted growth in the womb.

In the appeal, the mother argued a number of points including a failure of the judge at first instance to do justice to her evidence or give adequate reasons for his decision.

On the issue of the midwives’ negligence delaying the delivery, the three appeal judges ruled that the judge 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.

They concluded that the judge at first instance had not provided a judicial decision on the issue of whether the AHII had caused the son’s cerebral palsy. However, they ruled that the mother had not proven this connection on the balance of probabilities.

The full Opinion of the Court is available on the Scottish Courts and Tribunals Service website

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