Blood In The Water

by Gillian Galbraith

  ‘Yes, Ma’am.’

  The report of the judgement in the Mair case was long, over twenty sides, but Alice settled herself in her chair eager to make a start. Before she had read the first few lines she was interrupted.

  ‘Well, are you ready for action?’ Inspector Manson said, standing in front of her.

  ‘Now, Sir?’ She tried to think what he might mean.

  ‘When else? Can’t let another body get cold.’

  She contemplated saying nothing, following him and seeing where they ended up, gleaning along the way what they were supposed to be up to, but decided, instead, to admit her ignorance.

  ‘I’m sorry, Sir, but I’ve forgotten what we’re supposed to be doing.’

  He looked at her pityingly. ‘Alice, for Christ’s sake. Time of the month or what? Didn’t you listen to any of the briefing? Bell said we were to go and see Flora Erskine’s parents in Cupar in case they know of any connection between McBryde and the dead woman. I’ll see you at the car.’ He turned and left her.

  Alice closed her eyes. She could have shouted out loud in desperation, in anguish. Hours spent on a wild goose chase in the company of Inspector Manson, a face-to-face meeting with the parents of the dead girl. Their grief would be inescapable, infectious, debilitating.

  And the reality proved to be worse than she had imagined. Flora Erskine was an only child, and her parents were all but speechless in their distress. Inspector Manson behaved like a clown who had inadvertently wandered into a funeral, oblivious to the mood, determined only to perform. She returned to the office after eight pm, exhausted, picked up the fax and set off for home.

  13

  OUTER HOUSE

  (LORD CAMPBELL-SMYTH)

  PROOF: JUNE 2005

  JUDGEMENT: NOVEMBER 2005

  MAIR v. LOTHIAN HEALTH BOARD

  Counsel for the Pursuer: Counsel for the Defender: Russell Silverburgh QC David Pearson QC Mary Garner, Advocate. Flora Erskine, Advocate.

  ‘The pursuer in this action of damages is Teresa Bernadette Mair, mother and guardian of Donald David Mair, born on 10th January 1999. The defenders are Lothian Health Board and they are sued on the basis of their liability for the acts and omissions of Dr Elizabeth Clarke, Consultant Obstetrician and Gynaecologist and Dr Paul Ferguson, Senior House Officer, employees of the Royal Infirmary, Edinburgh.

  Donald David Mair (hereinafter referred to as “Davie”) was born in the Royal Infirmary at approximately 17.10 hrs on 10th January 1999. He was the pursuer’s fifth child and all four of her previous children were born in the same hospital. Consequently, that institution was familiar with Ms Mair’s obstetric history. Her first child, Joanne, was born by emergency Caesarean section in 1990, her second child, Kelsie, was born by normal spontaneous vaginal delivery in 1993, her third child, Shane, was born by emergency Caesarean section in 1995 and her fourth child, Alex, was born by normal spontaneous vaginal delivery in 1997. After the birth of her third child, Shane, the pursuer developed an infection in her Caesarean section wound requiring treatment by antibiotics. The wound healed after approximately one month. The pursuer’s four children all took the surname of their father, John Bradley, to whom the pursuer was then married. In early 1997 the pursuer and John Bradley separated, the pursuer then reverting to her maiden name of Mair, and by 1998 the Bradleys were divorced. In July 1997 the pursuer began cohabiting with Samuel McBryde and thereafter Davie was conceived. Originally, Mr McBryde was a joint pursuer, suing on behalf of his son, but he abandoned his part in the action following the break up of his relationship with Ms Mair in 2004.

  The pursuer’s obstetric history, prior to Davie’s birth, is of critical importance in this litigation. Professor Harold Drew, Sanderson Professor and Head of the Department of Obstetrics and Gynaecology at the University of Glasgow, was adduced as an expert witness on the pursuer’s behalf. He opined that when Ms Mair attended the Royal Infirmary with her fifth pregnancy she was at a higher than normal risk of complications during delivery. In particular, in the light of her two previous Caesarean sections she was at increased risk of uterine rupture, i.e. a rupture of the womb. The fact that she had previously experienced infection in her Caesarean section scar further increased this risk. Accordingly, the Professor was in no doubt that when Ms Mair attended the Royal Infirmary, in her fifth pregnancy, she should have had discussed with her the various modes of delivery open to her and the risks and benefits associated therewith. She should have been informed that she could, prior to the onset of labour, undergo an elective Caesarean section and that this would probably be the least hazardous option for the baby. Alternatively, she could undergo a short trial of natural labour which would end either with a normal spontaneous vaginal delivery or an emergency Caesarean section. She should also have been informed that an emergency Caesarean section in labour involves a significantly higher degree of morbidity for the mother than either spontaneous vaginal delivery or elective Caesarean section. Professor Drew explained that, with the pursuer’s obstetric history, it would be particularly necessary to discuss possible modes of delivery with her because, if any complications were to arise, they might produce catastrophic consequences. Such complications would include the rupturing of the womb. If such a rupture were to occur then a hysterectomy might be required. Further, such a rupture could result in sudden and severe fetal asphyxia i.e. interference with the respiration of the baby such that its tissues neither receive enough oxygen nor can get rid of carbon dioxide. Such asphyxia could result in severe brain damage to the unborn child. Professor Drew was adamant that if such information was not transmitted to Ms Mair at the time of booking, during the pregnancy or prior to the onset of labour, then this would constitute a standard of care which would fall below that of the ordinary consultant obstetrician or senior house officer acting with ordinary care and skill. In short, such a failure would constitute medical negligence. I have no hesitation in accepting the views expressed by Professor Drew and the defenders adduced no evidence to suggest that such a duty would not be incumbent upon those caring for the pursuer throughout her fifth pregnancy.

  Accordingly, one of the critical questions in the present case is was the necessary information passed on to Mrs Mair? Evidence in relation to this matter came from three sources and I will deal with each separately. Firstly, from the pursuer herself. Mrs Mair was certain that at no stage in her care by the hospital had the possibility of an elective Caesarean section for the birth of her fifth child been discussed by anyone with her. She said that if she had been offered a Caesarean section, to take place prior to the onset of labour, she would have “leapt at it” as she had not enjoyed her previous experiences of natural childbirth finding the process to be exceedingly painful and exhausting. On the other hand she had recovered from her previous Caesarean sections quite speedily and already had a scar in consequence of them. In reply to Mr Pearson’s skilful cross-examination she indicated that she would have remembered if someone had raised the matter with her as even she had been apprehensive about the “bursting” of her internal scar with yet another natural delivery. Secondly, evidence on this matter came from Dr Elizabeth Clarke, Consultant Obstetrician and Gynaecologist, and one of the clinicians under attack. She testified that she had not discussed the possible modes of delivery and any associated benefits or risks to mother and child with the pursuer herself as she had deputed this task to her Senior House Officer, Dr Paul Ferguson. She indicated that she had checked with Dr Ferguson, immediately following the pursuer’s second last visit to hospital and prior to delivery, that he had provided Ms Mair with the necessary information so that she could make an informed choice for the delivery of her baby. Dr Ferguson informed her that he had discussed all the options available to Ms Mair with her and had, in particular, discussed the relative risks associated with spontaneous vaginal delivery, elective and emergency Caesarean section, all in the context of her previous obstetric history. Professor Drew earlier gave evidence, in cross-examination, that a Consulta
nt, such as Dr Clarke, would be quite entitled to depute the duty incumbent upon himself or herself as long as they checked with the subordinate that the necessary information had been imparted within a suitable timescale. That described by Dr Clarke could be so classified, on the Professor’s evidence.

  Thirdly, the Senior House Officer, Dr Paul Ferguson, informed the court that he could clearly recall his conversation with Ms Mair about the modes of delivery open to her. He recalled her informing him that “no way” would she elect to have a Caesarean section having suffered “agonies” with her last Caesarean section and a protracted period of discomfort as a result of the wound infection associated with it. She had opted for spontaneous vaginal delivery, “nature’s way” as she, apparently, described it in the knowledge that an emergency Caesarean section could be executed if the need arose. He confirmed that he had discussed with Dr Clarke all the matters adverted to by her in her evidence on the occasion described by her. There was no dispute between the pursuer and the defenders that if the pursuer had been offered, and had accepted, the option of an elective Caesarean section then all the complications which subsequently arose for the pursuer herself and, more importantly, for her son, could have been avoided.

  Having considered all the evidence germane to this issue very carefully I have, reluctantly, come to the conclusion that I must prefer that provided by Doctors Clarke and Ferguson over that provided by the pursuer. It was clear, particularly in cross-examination, that the pursuer was a very poor historian. She was quite unable to recall many pertinent events whilst under the care of the hospital prior to Davie’s birth. She, wrongly, maintained that she had only met Dr Ferguson on one occasion despite the fact that the hospital records clearly recorded two such meetings. She could only explain the record of the second meeting in terms of record tampering, suggesting that the reference to the second meeting had been added after Davie’s birth and once the seriousness of his condition had been appreciated. She founded, in this matter, on the anomalous place in the records for the relevant entry. Dr Ferguson denied any record falsification explaining that the entry had been entered in the wrong place through error on his part. Ms Mair’s evidence was often muddled and, ultimately, I have come to conclude, unreliable. Whilst I do not consider that she intended to be misleading, in any respect, I have nonetheless reached the conclusion that her recollection was untrustworthy. In any event, her evidence in relation to any alleged record-tampering, whilst not worthless, amounted to little more than speculation, depending as it did upon an assumption about the “correct” place for the second entry. No evidence was led by her Counsel from any source, to confirm that her assumption about the “correct” place for the entry was justified. I consider it probable that Ms Mair has simply forgotten the second meeting with Dr Ferguson.

  I wholeheartedly accept the evidence provided by Dr Clarke. She impressed me as a conscientious witness, meticulous in considering all the questions put to her and coherent and consistent in responding to all such questions. In particular, she provided an entirely believable account of the meeting that she had with Dr Ferguson at which she checked that Ms Mair had received the information that she was entitled to receive. Further, that meeting took place within the acceptable timescale described by Professor Drew. She is, very evidently, a first-class physician. Dr Ferguson confirmed Dr Clarke’s account of the meeting, including its timescale and content.

  He, also, was an impressive witness. He spoke to the occasion of his second meeting with Ms Mair when he advised her inter alia that she could have a Caesarean section, prior to the onset of labour, and described the risks and benefits associated with elective Caesarean section, emergency Caesarean section and spontaneous vaginal delivery. As noted earlier, the records contained an entry anent a second meeting between Dr Ferguson and Ms Mair and it recorded that she had received appropriate advice relating to the modes of delivery open to her and the risks and benefits associated therewith. In all the circumstances, I do not consider that the pursuer has proved any fault on the part of either Dr Clarke or Dr Ferguson…’

  Alice read on, skipping the parts of the judgement she found incomprehensible and starting again at a description of the child’s birth and the consequences of it:

  ‘… Davie was born on 10th January 1999 at 17.10 hrs. By 16.30 hrs on that date the fetal heart had dipped abnormally low to 80 beats per minute and it remained at this dangerously low level until 16.50 hrs at which point Dr Elijah was informed. Dr Elijah attended, as soon as he was able to do so, reaching the pursuer at 17.05 hrs. He performed an immediate vacuum extraction on the pursuer and the child was finally born, as noted, at 17.10 hrs. The measures taken by Dr Elijah with regard to the management of the pursuer’s postpartum (after delivery) haemorrhage were entirely appropriate. He called the Consultant on call, Dr Naylor, as a matter of urgency. Dr Naylor attended, assessed the situation and performed an exploratory operation. This revealed inter alia that the pursuer’s womb had ruptured, through the old Caesarean section scar. Attempts to suture the rupture failed and accordingly Dr Naylor required to perform a sub-total hysterectomy, involving the surgical removal of the pursuer’s womb with her ovaries being retained. It was clear from the evidence that the baby’s abnormally low heart rate, prior to birth, resulted from the rupture of the scar. No rupture of the scar would have occurred if the pursuer had undergone an elective Caesarean section prior to the onset of labour. Had said scar not ruptured the baby would not have suffered asphyxia in the course of his birth and gone on to develop the catastrophic brain damage attributable to it. Equally, Mrs Mair would not have experienced the postpartum haemorrhage she endured or required to undergo the sub-total hysterectomy undertaken to stop the otherwise uncontrollable bleeding.

  Due to the rupture of the scar Davie’s brain was subjected to severe oxygen starvation. He is now very severely physically and mentally disabled. He has been diagnosed as suffering from cerebral palsy affecting his whole body. His limbs and his trunk are subject to uncontrollable fluctuations in tone. He cannot roll, sit, crawl or stand. He will never be able to do any of these things. He requires to be carried everywhere and, at present, this is done by his mother. As his weight increases this will become increasingly difficult for her. He has no useful function in either hand. He cannot reach out for objects or hold them if they are put in his hand. He has no recognisable speech or language and possesses no means of communicating even his most basic needs. He has no understanding of speech or gesture. He screams, for no apparent reason, occasionally during the day and usually twice per night. He has no intentional movements and has joint problems affecting both hips. Both have been operated on but, nonetheless, they appear to cause him considerable discomfort. Davie has very limited cognitive function, suffering from severe intellectual impairment. He is unlikely to exceed the level of function exhibited by a 6-month old baby in this regard. Due to his brain insult he is prone to epileptic seizures. He requires, and will always require, to be fed through a tube in his stomach. He often regurgitates, or vomits, food ingested. He is doubly incontinent and will never achieve continence. He has a very disturbed sleep pattern requiring to be comforted by the pursuer, on average, six times per night. Since his birth Davie (as he has always been known by his family) has been cared for selflessly by his mother, Ms Mair. The standard of care provided by her to her son has been exemplary and his lack of hospital admissions is in itself a testament to the excellence of the care provided by her. It would be no exaggeration to say that since his birth Ms Mair has devoted her whole life to the physical and mental needs of her disabled child. Originally, she received some assistance from the child’s father, Samuel McBryde, but the extent of the care provided by him appears to have diminished over time as the severity of the child’s overall disability became more apparent. Unfortunately, this meant that as Ms Mair’s burden increased the support provided by the child’s father decreased. Fortunately, she has had one steadfast rock of support since Davie’s birth, her brother, Do
nald Mair. He has, to the best of his ability, done everything in his power to help his sister and nephew. He has rendered physical assistance and moral support and his own marriage may well have been a casualty of his fraternal devotion… The total claim advanced on the pursuer’s behalf, which included inter alia the assistance of professional carers throughout Davie’s life, was for £1,500,000. Had I found in her favour I would have awarded her, for the reasons adverted to above, the sum of £1,400,000. However, the pursuer has not succeeded in proving her case and accordingly no damages are payable to her…’.

  Alice breathed out deeply. At last here was something that connected all four victims, even if the precise significance of the connection was not yet clear. The advocates who had successfully defended the case for the Trust were dead, and it was their efforts which had ensured that the Trust did not require to pay Ms Mair a penny in compensation. One of the doctors blamed for the catastrophe was also dead and the child’s father, who appeared to have sloughed off his responsibilities, had been killed too. She went over to her scanner and patiently fed sheet after sheet into it until she could e-mail the entire judgement to Alastair, adding a note to say that she would call at his house in about an hour’s time to talk about it.

  14

  One foot emerged through the froth of bubbles, quickly followed by the other. Somewhere under all the foam the soap was hiding and Alice searched, lazily, in the warm water for it, tracking down the soft bar to an area close to her left thigh. On the radio some man from Northern Ireland was berating an inoffensive woman for her ‘unthinking’ enjoyment of a film which, he claimed, denigrated the female sex as a whole and the role of the housewife in particular. With a feeling of omnipotence Alice switched him off, preferring, instead, the regular rhythm of the drip from the leaking cold tap. After a further quarter of an hour’s soaking she rose slowly out of the bath and began to dry herself, her mind preoccupied with the thought that they had entered the ring for the last round and the final bell was not too far off.