Borders Health Board has failed in a bid to overturn a legal opinion, delivered last year at the Court of Session in Edinburgh, that a senior midwife in the labour ward at the Borders General Hospital acted negligently back in 1997.
Lawyers acting for the health authority had sought to challenge that determination by Lord Menzies at a hearing of Scotland’s highest civil court last month.
But this week came the news that the presiding judge of three, Lord Bonomy, had endorsed the opinion of his colleague in an action brought by a Galashiels mother whose son was born with severe disabilities on November 23, 1997.
Her son, now aged 14, suffers from spastic tetraplegic cerebral palsy and neo-natal encephalopathy and his mother (Mrs C) is seeking substantial damages from the health board, claiming initially that this condition was “contributed to by fault on the part of staff at the BHG and the hospital itself”.
The 2011 hearing was told that Mrs C went into the early stages of labour on November 22 and telephoned the BGH at 9.15pm.
In evidence, she said she spoke to the midwife who was in charge of the labour ward (Midwife A) and explained she was passing a green, sticky substance vaginally.
It transpired that this was indicative of the possible passage of meconium, the contents of the foetal bowels usually passed after birth. When passed before birth it is indicative of foetal distress.
Mrs C claimed that Midwife A had replied that this was a “show” – a mucous discharge passed vaginally before labour – and told her there was no need for her to come into hospital.
Mrs C’s second allegation, upheld by Lord Menzies and not contested by the health board last month, was that a second midwife (Midwife B) acted negligently when Mrs C telephoned again at 3.08am on November 23 and was given the same advice. Lord Menzies found that Midwife C failed to ask “appropriate questions” of Mrs C.
In the event, Mrs C’s husband drove his wife to the hospital where she was admitted at 5.45am. At 7.20am, her son was delivered by caesarian section.
In his determination, Lord Menzies dismissed two other grounds of fault cited by Mrs C – that the obstetrician had been at fault and that the health board had “failed to operate and maintain a proper system”.
Last month, Lord Bonomy heard a “reclaiming motion” from the health board, challenging Lord Menzies’s finding of fault against Midwife A who had been in charge of the labour ward for nine years before the incident, when 950 babies a year were being delivered, and had gone on to obtain a BSc in midwifery in 2004.
Lord Bonomy recounted how Midwife A had, in her evidence the previous year, said she had no recollection of the first telephone call from Mrs C because it had been so long ago and could not recall what was said in the course of the conversation.
“Lord Menzies has set out clearly his reasons for accepting the pursuer’s (Mrs C’s) account as truthful and reliable,” stated Lord Bonomy.
“It is implicit in that decision that he has rejected the competing account based on normal practice and circumstantial support. He had a clear evidential basis for finding it established that the pursuer notified Midwife A of a green sticky discharge.
“He [Lord Menzies] had the benefit of seeing and hearing her account tested and seeing and hearing the evidence of other witnesses.
“We do not find the submission made to us [on behalf of Borders Health Board] any basis for concluding that he reached a conclusion for which there was no support or failed to adequately explain his findings...or reached a conclusion that was plainly wrong.”
That is a clear endorsement of Lord Menzies’ finding that there was “no dispute that Midwife A was at fault”.
“She [Midwife A] stated herself in evidence that if a woman had said she had a sticky green discharge and was told not to come into hospital, that would be totally unacceptable...In these circumstances, Midwife A’s actions would properly be found to be below the standard expected of the ordinarily competent midwife exercising ordinary skill and care,” stated Lord Menzies.
Calum Campbell, chief executive of NHS Borders, told TheSouthern: “NHS Borders acknowledges the judgement in this case.
“We are disappointed with the decision as we fully support and have every confidence in our professional, committed and experienced midwifery and obstetric employees.
“We are considering the implications of this judgment and are in ongoing discussions with the Central Legal Office [at NHS Scotland] on what our next steps will be.”