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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Fallon (A Child) v Wilson [2010] EWHC 2978 (QB) (18 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/2978.html Cite as: [2010] EWHC 2978 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 November 2010

Mr Justice Eady :

1. The Claimant is Alice Mary Fallon, who was born prematurely on 3 November 1996. It so happened that her 14^th birthday fell on the first day of the trial. She sues Dr John Wilson, through her mother and litigation friend Amanda Thompson, in respect of alleged breaches of duty said to have taken place at a consultation on 15 January 1997. He was at that time in general practice in Bushey Heath, Hertfordshire, although he retired in 1999. The possibility of a claim was first notified to him in 2007. It seems that it was not for some years that those advising Ms Thompson began to focus on the role played by the Defendant on the date in question.
2. The live issues in the case are relatively narrow and I can state the background, I believe, uncontroversially. It is now clear that Alice suffers from quadriplegic cerebral palsy, mental retardation, epilepsy, behavioural problems and blindness. It would appear to be reasonably certain that all of these conditions derive from severe brain damage. As emerged from a CT brain scan performed on 11 December 1997 and a later MRI scan in April 2005, it seems that the damage Alice suffered can best be categorised as encephalomalacia.
3. Although this form of damage can, in general terms, be caused by a variety of factors, such as severe infections, severe hypoglycaemia and occasionally by certain neurometabolic disorders, in Alice's case the experts seemed to be agreed in their reports that the cause is likely to have been peripheral perfusion failure (i.e. insults caused to the brain by lack of blood supply). The pattern seen on brain imaging shows particular damage to the watershed areas of the cerebral cortex, which is consistent with peripheral perfusion failure. (Encephalomalacia caused by hypoglycaemia, for example, tends to affect the parieto-occipital lobes.)
4. Neuroradiological review of Alice's brain imaging can also assist in timing the relevant insult, since the abnormalities from which she suffers are only expected to occur following insults to a brain which has reached foetal maturity. It is recognised by the experts that such an insult could occur in the late antenatal period, the perinatal period or post-natally. Because of the nature and location of the damage, however, it has been possible for all practical purposes to narrow the opportunities for the relevant insult(s) to the events of 15 to 16 January 1997.
5. It had originally been anticipated that Alice would be born on or about 28 January 1997. The course of the pregnancy was not, however, smooth. Ms Thompson was admitted to hospital on 28 October 1996 with a recurrent bleeding problem. Steroids were administered and the bleeding appeared to settle. Assessments of the foetus by a CTG were reassuring at that stage. By 2 November 1996 Ms Thompson was experiencing further bleeding and contractions could be felt. It was decided to transfer her to Luton & Dunstable Hospital, where she arrived at around 12.30 pm. It was confirmed that she was in labour.
6. The membranes ruptured the following day at 22.39 in the evening. Those in attendance appear to have been satisfied as to the wellbeing of the foetus, by means of CTG monitoring, and there was no suggestion of hypoxia or asphyxia. Alice was delivered at 23.05 that evening. At this time she was at 27 weeks gestation. Her birth weight was 1.134 kg and her head circumference 26.6 cm. She was given Apgar scores of 6 at one minute after delivery and 8 at five minutes.
7. Alice was intubated within the first few minutes of life and artificial ventilation commenced. She was then transferred to the Neonatal Unit at Luton & Dunstable Hospital, where she remained until 27 November 1996. At that stage she was transferred to the Neonatal Unit of Mount Vernon & Watford Hospitals NHS Trust. In due course, she was discharged on 9 January 1997 and went home. At this stage, of course, she was still about three weeks short of having achieved full term maturity.
8. It is relevant to note that, from her first few days of life, Alice developed frequent apnoeas and bradycardias. These required stimulation and gradually became less frequent. It appeared that the problem had resolved itself by the end of December 1996. They were treated initially with aminophylline and later with caffeine. This was discontinued on about 20 December 1996. From the available records, it seems that there were no neurological problems recorded at this stage.
9. On 5 December 1996, a diagnosis was made of probable gastro-oesophageal reflux, which was treated with a combination of Gaviscon and cisapride. This was continued prior to her discharge from hospital, but it was anticipated that she would for some time need to have infant Gaviscon available to deal with the reflux problem.
10. On 13 January 1997, Ms Thompson visited the Defendant, who had been her general practitioner since childhood, for a postnatal check. She says in her evidence that she took the opportunity on that occasion to give him a general account of Alice's premature birth and of her stay in hospital. She also explained that she had only been allowed home a few days earlier.
11. For the purposes of this present litigation, the critical visit to the Defendant's surgery took place on 15 January 1997. It seems that Ms Thompson and Alice attended the surgery with the intention of picking up a prescription for infant Gaviscon. Alice was brought into the surgery in the detachable baby seat being used at that time and her mother approached the receptionist. She was told that it was necessary for her to see the doctor to obtain the prescription and Ms Thompson asked that she might go in soon, rather than waiting her turn, because she was concerned about Alice picking up any infection from fellow patients. This was arranged and she went in to see the Defendant with Alice still in the car seat. As to what took place during the consultation, which seems to have begun shortly after 5 pm, there are a number of disputes which I am called upon to resolve.
12. The Defendant has virtually no recollection of the events that day and is largely dependent upon his surgery record, which consisted partly of a brief handwritten note (on what was referred to as the Lloyd-George Kardex) and partly on computer-generated records. It follows that he is not in a position directly to challenge Ms Thompson's account, on the basis of his own recollection, but he does join issue with her in certain respects on the basis of his usual practice at the time and how he would have been likely to react on certain hypotheses.
13. According to Ms Thompson, the Defendant began to take down details about Alice. She was to some extent surprised by this, since she had given much of the information (she claims) two days earlier during the course of her postnatal check. Nevertheless, this would seem to have been Alice's first visit to the surgery as a patient, and it was no doubt appropriate for some details to be recorded for the purposes of registering her in that capacity. The computerised record suggests that this process took place, or began at least, at 17.10. The Defendant believes he would have made the relevant entries, rather than his receptionist, as she would not have had his password.
14. At all events, Ms Thompson states that there came a time, while the Defendant was recording the information, when she noticed that Alice appeared to be somewhat poorly. She took this sufficiently seriously to interrupt what the Defendant was doing and asked him to carry out an examination of Alice as a matter of urgency. It is not possible to pinpoint exactly how far into the consultation this was. One possibility was that it occurred at or shortly after 17.19, because there was a computer entry at that time relating to the medication recommended for Alice by the hospital. This would narrow the window of opportunity for the physical examination to between 17.19 and 17.24, which was the time when the results of it were entered.
15. What is not in doubt is that the Defendant did carry out a physical examination of Alice, although he does not accept that he did this at the specific request of Ms Thompson. Her case is that he did so in response to her drawing certain symptoms to his attention. She claims that Alice was becoming cyanosed (her lips turning blue), that she was blotchy around the face and neck, that she was pale about the face and that her extremities were cold. She also spoke of slow breathing and a wailing sound on exhalation. It is accepted by the two experts in general practice who have given evidence before me, Dr Young and Dr Burton, that if Ms Thompson's account of events is correct, the appropriate course for a competent general practitioner to have taken that evening would be to refer Alice to hospital. It is also accepted by the Defendant that there would be a relatively low threshold, so far as a general practitioner is concerned, for the referral of a premature baby back to hospital shortly after being released.
16. According to the Defendant's record, it was noted at the time that there was "pallor". The Defendant explained that this could be because he had noticed the symptom himself or because he was merely recording what Ms Thompson told him. It seems inherently unlikely, on the other hand, that he would have recorded "pallor" if he had not confirmed it for himself. Apart from this, however, none of the other symptoms to which Ms Thompson says she drew attention are recorded either in the manuscript note or on the computer.
17. Mr Spencer QC, on the Claimant's behalf, submits that it is highly unlikely that a general examination of the kind recorded would have been carried out by the Defendant, especially during a busy evening surgery, unless he had witnessed signs or symptoms of greater significance than merely "pallor". That is a position supported by the Claimant's general practitioner expert, Dr Burton. Yet Dr Young, called on behalf of the Defendant, contends that a reasonably competent general practitioner might well have carried out such an examination purely because of the combination of pallor and prematurity.
18. Ms Thompson noticed, upon arrival at the surgery, that there were traces of Alice having recently vomited, perhaps during the car journey, but she attached no particular significance to this. It was not, so far as she was concerned, a reason in itself for taking Alice in to see the doctor. According to her evidence, the only reason for going to the surgery in the first place was to collect the prescription for Gaviscon. She only noticed the troubling symptoms once they had gone into the Defendant's consulting room.
19. What Ms Thompson said in her witness statement, and confirmed in oral evidence, was as follows:

"Whilst he was talking to me, I noticed that Alice was making some very strange noises with her breathing. She was breathing slowly making a weak wailing noise when she exhaled. I noticed a little bit of vomit around her mouth and also that her lips were blue. Her face and neck had become patchy and blotchy. I was holding Alice's hand and her fingers felt cold. Her face was clammy to touch. Alice did not look at all well and I became very worried about her condition. Whilst the Defendant was talking I interrupted him and asked him to look at Alice and to examine her and see what was wrong."

She added that " … we had a child that was becoming worse as I was looking at her and he didn't seem to show any interest".

20. Ms Thompson described the examination in these terms:

"Having stood up, the Defendant then looked at Alice and as he was doing so it became clear that Alice's breathing had become slow and when she exhaled the air, she made what can only be described as a wailing noise. I recall that the Defendant's examination was quick and had no depth in it at all. I recall the Defendant asking me to undo her clothing and as Alice had an all-in-one I unzipped and unbuttoned sufficient for what the Defendant would have asked me to do. He did not ask me to do any more and Alice was sitting in the car seat with her all-in-one undone with her vest against her skin. The Defendant then came between me and Alice and I noticed his stethoscope, which is always around his neck, and I presume that he would have used it. I recall the Defendant doing what I thought was a rectal examination but in fact I understand now it was taking Alice's temperature and that was all."

21. Although again labouring under the disadvantage that he has no independent recollection of the occasion, the Defendant was prepared to defend the thoroughness of his examination on the basis of what he recorded.
22. The entry in the Lloyd-George Kardex is simply in these terms:

"15 Jan 997 Looks pale. General examination.

T 36.1 PR Adv"

The last line records in abbreviated terms the outcome of the "general examination". It simply means that the temperature was found to be 36.1 degrees on being taken per rectum. The entry "Adv" merely records that the Defendant gave Ms Thompson advice. There is little dispute as to the substance of the advice given: it is accepted that it was to the effect that Alice should be taken home and kept warm. There is a dispute as to whether the Defendant actually used the phrase "a little bit of hypothermia", but that does not affect the essence of what Ms Thompson was told.

23. No history was contained in that entry; nor any description, however brief, of the presenting complaint. The recording was plainly inadequate and should have included the patient's history, as the experts agree. "Looks pale" would not, taken by itself, be likely to lead a general practitioner to conduct a general examination on his own initiative. I cannot regard it as being the presenting complaint.
24. The computer entry was a little longer, although hardly more informative:

"O: O/E – pale

Rx: Infant Gaviscon Oral Powder asd 6*10 sachet(s)

Ferrous fumarate Syrup 140mg/5ml 1ml once a day 50ml

T: Brief general examination

Temp 36.1 degrees centigrade ENT examination – NAD

Resp. system examined – NAD Abdomen examined – NAD

P: Letter/report awaited

Rectal Temperature

D: General body warming therapy, advised. "

25. Since nearly 14 years have elapsed since the consultation, it may not be surprising that the Defendant was unable to recall exactly how the computer package operated at that time. He could not explain the significance of the capital letters "O", "P" or "D", but he was fairly confident that "T" stood for "template". This entry again records that Alice was on examination ("O/E") pale. There is reference also to the medication recommended by the hospital prior to her discharge on 9 January, which Ms Thompson was intending to obtain via the surgery. In addition to the temperature, it also records that the ear, nose and throat examination yielded nothing adverse; nor did those of the abdomen and respiratory system. It also confirms the nature of the advice given by the Defendant ("general body warming therapy"). It was unclear which "letter/report" was awaited, but it probably referred to the neonatal information anticipated from the hospital.
26. I must address the conflict of evidence between Ms Thompson and the Defendant since, as I have explained, it is agreed between the experts that if Ms Thompson's account is preferred, there should have been an immediate referral to hospital. On the other hand, if there was no more than pallor and a slightly reduced temperature, there was no such need.
27. I am quite satisfied that Ms Thompson, when she went to the surgery with Alice on the evening of 15 January, originally intended merely to collect a prescription for the infant Gaviscon. She had not made an appointment and was not intending to consult the Defendant herself or on Alice's behalf. It seems reasonably clear that she only discovered that she needed to see the Defendant after she spoke to the receptionist – purely for the purpose of obtaining the prescription. Against that background, it seems to me to be very likely that something happened once she entered the consulting room to prompt the Defendant to give Alice a general examination. There is no reason to suppose that he was doing it as a matter of routine. The likelihood is that when she entered the room Ms Thompson thought she would only be there for a moment or two, while the Defendant wrote out the prescription, and that she would not be interrupting the flow of patients waiting in the surgery to any greater extent than that.
28. It is unfortunate that the Defendant's records do not disclose why he examined Alice; that is to say, by recording the presenting symptoms. I readily accept, especially in the light of the expert evidence, that it would have taken something more than mere "pallor" to justify the carrying out of a general examination.
29. I see no reason to reject Ms Thompson's recollection that something about Alice's appearance alarmed her while she was with the Defendant, to the extent that she was prepared to interrupt what he was saying and to ask him to give Alice some form of check-over. There is no doubt that she was cold and pale. What is more, with the benefit of hindsight, it can now be appreciated that she was almost certainly by that time suffering from bronchiolitis. That is a chest infection to which small children, and particularly premature babies, would be vulnerable – and especially in the middle of January. In any event, it is clear from her neonatal records that Alice had suffered a number of apnoeas while still in hospital. These factors, taken together, lead me to conclude that Ms Thompson is probably correct in her recollection when she says that she noticed something about Alice's breathing while she was there in the consulting room.
30. Ms Thompson refers to Alice as having been breathing rather slowly (hypoventilation) and to making a weak "wailing" noise. That would be consistent with chest and breathing problems recorded both before and after the visit to the surgery. Moreover, I note that this was a factor mentioned by Ms Thompson in her very first statement, which is undated but, in the light of the evidence of her solicitor, Mr Sheridan, can be placed firmly in the early part of 1998. In that early record, she states that she noticed while in the Defendant's presence both that Alice "started becoming extremely blotchy" and that she was "making a wailing noise". I find it significant that these symptoms formed part of her recollection at that time (only about a year after the traumatic and very memorable events of that night).
31. It is worthy of note in this context also that the doctor at the hospital, on 15 January 1997, included reference to Alice having had a "slight cough" and to "slight breathlessness on bottle feeding". That information must have come from Ms Thompson and the note is consistent with her having spotted breathing problems at the time. Mr Moon QC, appearing for the Defendant, took the point that these observations had not been pleaded, but I regard the argument as going to the consistency and credibility of Ms Thompson's evidence. It goes to rebut any suggestion that breathing problems were a matter of "recent invention". As such, it would not need to be pleaded.
32. There is one aspect of Ms Thompson's evidence, however, as to which I am less confident. She referred to Alice having blue lips in the consulting room. This is something which would almost certainly have alerted a competent practitioner and caused him or her to make a record. There is no doubt that later that evening Alice did appear cyanosed and that her lips were indeed blue within an hour or so of the consultation. I am doubtful, however, as to whether this symptom displayed itself while she was actually there. I bear in mind that in one of her earlier statements, prepared in July 2003, Ms Thompson recorded that, after she returned home from the surgery, " … as we were both looking at Alice I noticed that her lips were turning blue and she appeared to be losing all colour out of her face". I appreciate that this description relates to a period very shortly after the visit to the surgery, probably no more than 20 minutes or half an hour, but it is consistent with blueness of the lips not having been actually apparent in the consulting room. At that stage, all Ms Thompson was saying was this:

"At the surgery with Dr Wilson I noticed that Alice was becoming blotchy over the face and body and whilst I was talking to Dr Wilson about myself I asked him also to have a look at Alice because I was becoming very concerned by her condition literally whilst I was with him in his room."

That is a slightly confusing account, because for quite a long time Ms Thompson appears to have telescoped her visit of 13 January 1997, at which she thinks Alice was also present, with that of two days later on 15 January. Nothing turns on this, since it is accepted that the relevant visit for present purposes took place on 15 January and that it was quite separate from the postnatal check-up which took place two days earlier. Nevertheless, it seems to me to be significant that she was describing the lips as "turning blue" after her arrival home from the surgery. Also relevant in this context is the St Mary's Hospital Transfer Check List, timed at 23.30 on 15 January 1997, which records under "Brief History" that Alice had "gone blue at home".

33. The question to be decided at this stage is whether it has been demonstrated that a competent practitioner would, in the light of what I conclude took place in the consultation, have made the decision to refer her back to hospital forthwith. The pleaded reason is that she was showing signs of hypoventilation, although it is likely that any such decision would have been made in the light of the overall presentation of the child. I am persuaded that Ms Thompson's account of Alice's appearance and her symptoms was substantially accurate, with the exception of the blue lips. On a balance of probabilities, I believe that this happened a little later during the evening after she arrived home – probably at or shortly after 18.00. Nevertheless, I find in the light of the evidence that she should have been referred to hospital straight away and that, accordingly, there was a breach of duty on the Defendant's part.
34. I have come to my conclusion on the basis of the following factors:

i) There would be a low threshold for referral in the case of a premature baby – and, in particular, a baby who had been born at 27 weeks and had still by the time of the consultation not reached the equivalent of full term.

ii) Alice was, as I find, exhibiting respiratory problems in the surgery by reason of her slow breaths and the "wailing" sound deriving from her vocal chords as she exhaled.

iii) I make that finding on the basis of Ms Thompson's recollection and despite the "NAD" note in the Defendant's computer record. It is unnecessary for me to speculate on what the stethoscope picked up or how the Defendant interpreted what he heard.

iv) There had been a history of apnoeas prior to Alice having left hospital and there were apnoeas shortly following the consultation. This in my judgment supports the likelihood that Ms Thompson's observation of breathing difficulties was correct.

v) Bronchiolitis is a common infection, and especially in the middle of winter, to which premature babies are especially vulnerable. In turn, bronchiolitis can commonly give rise to recurrent apnoeas, and again particularly in the case of pre-term babies (although it would be rare for it to lead to brain damage).

vi) Even if her bronchiolitis might not have been readily detectable on a general examination, carried out by a competent practitioner, nonetheless the risk would justify reference to hospital for a child with Alice's recent history.

vii) Alice was blotchy about the face and neck, as her mother observed and recorded only 12 months later, and she was clammy to the touch.

viii) As the Defendant himself recorded, Alice was noticeably pale and had a low body temperature.

35. The Defendant was a very experienced general practitioner who in the course of a 36 year career, from 1963 to 1999, had never been the subject of a claim for negligence or any professional complaint. Mr Moon described him as a careful doctor and I have no reason to doubt that this would have been, in general terms, a fair description. On 15 January 1997, however, at some point between 17.00 and 17.30, he was called upon to make a judgment in a busy surgery on limited information and in the light of his long experience. I regret to say, however, that in making that judgment he fell short of the standard to be expected of a competent practitioner in the situation that confronted him. It was an inadequate response to advise merely that Alice should be kept warm.
36. Considerable attention was devoted to another factual dispute that I believe turned out to be of less significance than was originally thought. Ms Thompson believes that the Defendant carried out his examination of Alice while she remained in the car seat, whereas he believes that he would have only done so if she had been removed from it and placed on his couch. The type of car seat was replicated in the evidence before me and I would describe it as being more akin to a detachable cradle than a seat. The significance of this is that Alice could lie down in it rather than being secured in a sitting position. The experts, Dr Young and Dr Burton, at first found it difficult to envisage how an all-in-one garment and a nappy could be removed, still less a rectal temperature taken, if the child remained in a car seat. Indeed, it is obvious to anyone that a rectal temperature could not be taken if she remained in a sitting posture. In the end, however, after he had seen the model of seat in question, Dr Young was prepared to accept that it would have been possible (albeit difficult and not very practical) for a rectal temperature to be taken if the child was in a reclining position.
37. It does not seem to me to be critical to determine whether Alice was taken out of the seat, or remained in it, because I accept that:

a) Ms Thompson removed or adjusted enough of Alice's clothing to enable the Defendant to conduct such examination as he required;

b) however it was managed, he did succeed in taking a rectal temperature of 36.1 degrees (and no one has suggested that this was a dishonest record);

c) the Defendant also carried out both ENT and respiratory checks; and

d) although I cannot say how thorough or effective these tests were, there is no reason to believe other than that the Defendant genuinely believed, in the light of them, that nothing abnormal was detected.

38. I must now turn to the problems of causation. At the outset of the trial, it appeared to be critical to determine two issues in the light of such evidence as is available:

i) When did Alice suffer the hypoxic-ischaemic brain damage which, it was accepted in the expert reports, accounts for her disabilities?

ii) If she had been referred by the Defendant to hospital at about 17.20 or 17.25 and she had been taken there directly, how much (if any) difference would it have made to the outcome?

This second issue rather fell away in the course of the hearing, as the Defendant's experts and counsel effectively conceded that on the hypothesis of earlier arrival Alice would have been treated correspondingly earlier.

39. Much of what in fact occurred after Alice left the surgery can be established by Ms Thompson's account and, in due course, after she was admitted at the Watford Hospital at 18.45, also by the available medical and nursing records.
40. The major issue on which the experts were unable to reach agreement was whether the critical peripheral perfusion failure occurred during the evening of 15 January or on the morning of 16 January. The Claimant's experts contend for the former and those of the Defendant for the latter. It is uncontroversial that, if the damage occurred on 16 January, there would be no sufficient causal link between the Defendant's breach and the relevant hypoxic insults.
41. The margin is a narrow one. Alice actually arrived at the hospital at 18.45. The proposition sought to be established on her behalf is that, if she had arrived shortly before or shortly after 18.00, the care she would have then received would have prevented all or some of the damage. This is a hypothesis which inevitably depends on speculating what would have happened, so far as treatment is concerned, and also trying to infer from the written records when the insults occurred despite the treatment actually administered. As so often, the records are not as full as they might have been. For example, there is no record of blood pressure between 18.45 and 20.00 on 15 January.
42. The relevant experts who gave evidence before me, in this context, were the neurologists Dr Ferrie and Dr Rosenbloom and the paediatricians Dr Lyon and Professor Chiswick.
43. What led Alice's parents to take her to hospital was her condition following arrival home from the surgery. In particular, Ms Thompson recalled with some distress how Alice had stopped breathing and her eyes "turned black". With considerable presence of mind, she placed her over her shoulder and slapped her on the back, whereupon her breathing resumed. They then drove her as quickly as the traffic allowed and were admitted at 18.45. The experts are unable to agree just how critical her condition was upon arrival, as the records do not present a full picture.
44. The first nursing record, at the time of admission, shows temperature at 35.8 degrees, pulse rate at 145 and respiratory performance at 40 breaths per minute. Saturation was recorded at 77% (suggesting that she was already hypoxic on admission) and blood pressure at 76/48.
45. A doctor was informed straight away and she was first seen at or shortly after 19.00 in the Hornets Children's Ward. The record shows that she was still pale ("pale + +"), had blue lips, shallow breathing, and that the capillary refill was slow at 3-4 seconds. Here her peripheries were recorded as "cold". There was reference to a slight cough, as part of the history, and to her having been "sickly" twice. She was given oxygen and "perked up quickly". There are also entries to the effect that Alice had "recurrent shallow breathing" and that desaturations were down to 80%. Moreover, while still at Hornets Ward, there is a record to the effect "needed stimulation x 3 to restart resps". This has been interpreted to mean that she had three apnoeas and that breathing was started again, on each occasion, by physical stimulation.
46. It is said on the Claimant's behalf that these symptoms would indicate that, had her blood pressure been monitored, it would have been consistently low. This was not refuted.
47. It was decided that Alice needed to be transferred to the care of the Special Care Baby Unit (SCBU), where she seems to have arrived at about 19.30 with a view to stabilisation and investigation. Dr Ferrie, called on her behalf, would not accept that this timescale indicated that the doctors concerned did not regard her as particularly sick at that time. He himself interpreted the records as showing that she was very sick. Moreover, he thought that the seriousness of the situation was illustrated by the fact that she was admitted to the SCBU despite the risk of bronchiolitis spreading to others. There would be a risk of an epidemic.
48. Within five minutes of arrival at the SCBU, she was given oxygen again, as manually recorded in clinical notes, and from 19.45 it is noted that she suffered three further apnoeas within ten minutes. She was treated with oxygen by means of "mask and bag" and took a minute to respond. Her saturation level was now less that 70%. Her pulse was down to less than 90 beats per minute. She was given intravenous fluids, artificially paralysed and given albumin.
49. Things were not going well for Alice at this time and nursing notes record how, after being weighed on arrival, her condition had deteriorated and she "required bagging and (external) cardiac massage". Prior to that, it had been noted that her oxygen saturation had reduced to 25% and that her heart rate fell to 60 beats per minute. At 20.16 she was intubated and mechanically ventilated.
50. Dr Ferrie regards this period as critical and has expressed the opinion that the damage was probably complete by that time on the evening of 15 January.
51. Tests carried out with foetuses tend to show that the brain can withstand up to an hour of hypoxic insult before significant damage occurs, but Dr Ferrie points out that, in the absence of comparable data for newborn babies, care needs to be taken in extrapolating from such information. This is not least because a baby can become more vulnerable the longer it is separated from the protection of the mother's immune system. A baby who was by then over two months old might conceivably succumb to such damage in less than an hour (perhaps 45 minutes). It emerged while Professor Chiswick was giving evidence that the compensation period could be shorter if the autoregulation system had been undermined, as sometimes happens when young children have an infection.
52. The pattern contended for on the Claimant's behalf is not one of profound acute hypoxia. It is posited that there would have been a period of compensation, during which the body redirected blood and oxygen to the vital organs at the expense of the periphery, but then followed by a period of decompensation lasting perhaps half an hour during which the brain would suffer hypoxic ischaemic damage of the kind shown by the MRI scan. It is suggested that this would have been complete roughly by 20.16 when intubation occurred.
53. On timing, Dr Ferrie considered it very unlikely that Alice's circulation was so severely affected by the time of her arrival, when the blood pressure reading was within normal limits, that tissue damage had already started. It is quite possible, however, that the hypoxic insult had already begun and that she was going through a period of compensatory circulation to the brain (which would be consistent with, for example, the blue lips and cold extremities). Hypoxia can commonly be brought on by apnoea or respiratory insufficiency.
54. There was common ground between the neuroradiological experts, Dr Connolly and Dr Kendall (whose reports were available, although they did not need to be called), to the effect that Alice would have had a period of general peripheral circulatory impairment. They could not say precisely how long this would have lasted, since it would depend on a number of factors, but there would have been brain compensation circulation brought about by nature through the autoregulatory system. There would then follow a period of circulatory insufficiency in the brain, with damage likely to begin about 15 minutes later. They thought it would be likely to be complete within 30 minutes. This pattern, which is very well known, would be consistent with the timings favoured by Dr Ferrie.
55. He considers that any episode, such as that occurring after Alice's arrival, in which both artificial resuscitation and cardiac massage are required carries a risk of hypoxic-ischaemic brain damage. He was asked in cross-examination whether he recognised any contra-indications in the evidence as to his hypothesis, and he readily acknowledged that the lack of any blood gas readings showing acidosis would tend against the damage having occurred during this period. But, he pointed out, that could equally be said of the records for the following morning. In any event, the blood gas reading taken at 20.38 on 15 January was a while after resuscitation and an earlier reading (say, at the time of Alice's respiratory collapse) might well have revealed acidosis. He also referred to doubts as to the reliability of the results (to which I shall return).
56. It is perhaps necessary to say a little more as to why blood gas readings are of potential significance in this context. During a period of hypoxia, as Dr Ferrie explained, the body is inclined to produce more acids and to be less capable of eliminating them from the system. That is likely to yield a lower PH reading. No such reading was taken over either of the periods relevant to this case.
57. Dr Ferrie compared the episode on the morning of 16 January, including desaturation at about 07.35 followed by continuing hypotension up to about 11.00, with that of the previous evening. He expressed the opinion that Alice's condition was poorer on 15 January. When addressing the hypotension during the following morning, he observed that this occurred in the controlled setting of Alice already having been intubated and artificially ventilated. He was prepared to accept the view of Dr Lyon that at that stage the hypotension could have been, at least for a time, a consequence of the administration of pancuronium (the drug administered to achieve artificial paralysis). This was intended to prevent Alice's agitation, noted at about 08.00, interfering with the effectiveness of mechanical ventilation. Hypotension would be a recognised effect of the muscle relaxant. Moreover, at that stage the hypotension was being treated appropriately and would not have been expected to lead to reduced perfusion or to permanent brain damage. Her saturation levels were monitored and adjusted.
58. Dr Ferrie expressed the view that if Alice had been admitted to hospital one hour earlier (i.e. at 17.45) any paediatrician would have been extremely concerned about the adequacy of her respiration and peripheral circulation. (Actually, one has to calculate on the basis of her arriving, hypothetically, at nearer to 18.00 than 17.45 so as to allow for possible rush hour delays.) Dr Ferrie thinks it likely, on that hypothesis, that Alice would have been given ventilation and other resuscitative measures in advance of the collapse. That analysis now appears to be uncontroversial.
59. As to the timing of the critical hypoxic insults, Dr Lyon expressed his opinion as follows:

"4.19 At the time of admission Alice was poorly perfused (cool peripheries) and was having recurrent apnoeic episodes. The impression is of a baby already in a critical state who was deteriorating. Soon after admission she required vigorous resuscitation, including cardiac massage. She received several infusions of albumin over a short period of time suggesting serious concern about her perfusion. She had a period of bradycardia and very low oxygen saturation. There then followed several apnoeic episodes and she was intubated and ventilated. The impression from the records is of a difficult and prolonged period of resuscitation and stabilisation. The standard of care appears to have been good and any problems at this time were a consequence of her underlying condition rather than inadequate care.

…

4.21 On the 16^th January there was a period of desaturation and a fall in blood pressure. She was started on inotrope support but the recorded blood pressure readings were not significantly low and unlikely to be associated with a severe degree of underperfusion of the brain. The dose of inotrope remained low and there was no sustained hypotension. Blood gases were being done more frequently and there was no metabolic acidosis suggesting significant tissue underperfusion.

4.22 On the balance of probabilities the damage to Alice's brain occurred around the time of admission when she required resuscitation. There was good clinical evidence of poor perfusion. The nursing notes record that she was transferred to the neonatal unit for ventilation suggesting there were already concerns about her condition. The subsequent episode on the 16^th January did not result in a metabolic acidosis and, although there was a slight fall in blood pressure, there was no prolonged period of serious underperfusion that would have damaged the brain.

...

4.24 … On the balance of probabilities, the damage to her brain occurred during the period of time between the onset of her illness in the GP surgery and her resuscitation in hospital. Immediate admission to hospital from the GP surgery would have resulted in more rapid recognition of her condition, and have prevented the subsequent collapse during which it is likely that the brain was damaged."

60. A contrary view was to be found in the report of Professor Chiswick dated 30 June 2010:

"20.1a. On a balance of probability Alice's disabilities were sustained during the course of acute bronchiolitis.

b. The nature of the injury as revealed by CT and MR brain scans was hypoxic-ischaemic damage due [to] perfusion impairment. It is likely that the damage occurred over a period of at least one hour during which time blood flow in the major cerebral arteries became impaired especially affecting the watershed areas between the supply provided by the major arteries.

c. I would attach causal importance to events during the morning of 16^th January 1997 when Alice was reported to have developed a low blood pressure and was subsequently prescribed dopamine – an anti-hypotensive drug.

…

e. In my opinion earlier referral to hospital, soon after Alice was examined by Dr Wilson, would not have avoided the damage. Instead it is more likely that the same clinical events would have evolved and the outcome would have been the same."

61. In similar vein, Dr Rosenbloom drew the following conclusions in his report of June 2010:

" …

(3) With the benefit of hindsight Alice was becoming symptomatic from the illness that is associated with her brain damage at the time that she saw Dr Wilson early on the afternoon of 16 January 1997.

(4) Her brain damaging prolonged partial hypoxia occurred subsequent to her admission on the early evening of 15 January 1997 to Watford General Hospital. The brain damaging perfusion failure probably occurred at a time when she was receiving ventilator support on the morning of 16 January.

(5) Earlier admission to hospital on the evening of 15 January is not likely to have altered the sequence of events that occurred after admission."

62. Professor Chiswick modified his original view on causation in the witness box. He acknowledged, having thought about it in the course of the trial, that if Alice had arrived at about 18.00, and had thereafter suffered the apnoea noticed by her mother at home, she would probably have been intubated and ventilated shortly afterwards.
63. It is necessary when considering the events of 16 January 1997 to have in mind the fact that none of the experts has suggested that the care regime in the SCBU that morning (or indeed at any other time) is to be criticised as falling below the appropriate standard. I need to be careful, therefore, in the absence of any compelling evidence, before coming to a conclusion that the medical and nursing staff at the relevant time permitted a sustained period of underperfusion to occur sufficient to cause the brain damage. Alice was being ventilated and carefully monitored throughout. It was not the same "crisis management" situation that arose following her arrival. Professor Chiswick told me that those attending her had no reason to believe that her condition that morning would lead to permanent brain damage and that there were no steps they should have taken, even with the benefit of hindsight, to prevent that happening.
64. While it is the case that Alice had low blood pressure recordings during that morning, it is also true that she remained stable (by contrast with her condition the previous evening between approximately 19.30 and 20.15).
65. She received a dose of pancuronium probably, in the light of the drug chart, at 07.25 on 16 January. As I have already recorded, Dr Ferrie and Dr Lyon drew attention to the recognised link between this drug and a lowering of blood pressure. On the other hand, Professor Chiswick did not accept that this could explain the prolonged period of hypotension throughout the morning. I was told by Dr Lyon that babies vary as to how long the effects of the drug would last. Eventually, the hypotension was treated with dopamine at 11.15, but no suggestion has been made that it should have been administered earlier.
66. It is thus necessary to investigate, over this period of close monitoring, whether there were any other signs of significant underperfusion. Yet, if there had been, this would not be easy to reconcile with Professor Chiswick's evidence that (a) the clinicians and nurses would have no reason to believe that her brain was being subjected to hypoxic-ischaemic insult and (b) there was nothing they could be expected to do to protect her.
67. At 08.00 there was a record of her capillary refill being normal at 2-3 seconds. Moreover, perfusion was noted as "good" at 09.15. Later, at 10.45, there is a record of perfusion at less than 2 seconds. I referred earlier to the fact that during the morning blood gas readings were being taken regularly and revealed no sign of metabolic acidosis, which can in itself be an indicator of significant tissue underperfusion. It provides a more reliable and objective method of checking than capillary refill, which Professor Chiswick seemed to regard as a rather crude and subjective methodology. I can understand that, since it consists of pressing the surface of the body at various points and (in the absence of a stopwatch) mentally counting how long it takes for the white area to become perfused again (i.e. to turn pink). He added that the rate of surface perfusion does not necessarily indicate very much about perfusion in other more vital organs. Dr Lyon, on the other hand, is of opinion that because the skin tends to "shut down first" it would be surprising to find surface perfusion satisfactory if there was, at the same time, hypoxic insult to the brain. Nevertheless, the fact remains that both these checks, capillary refill and blood gas measurements, were negative.
68. Dr Lyon also drew attention to the lack of any evidence of tachycardia, which would be a sign that the body is responding to lack of tissue perfusion. There was a reference to tachycardia in the notes relating to the morning of 16 January just after Alice had been given the pancuronium, but I believe that Dr Lyon was referring to the long period of hypotension thereafter.
69. I am not persuaded on a balance of probabilities that there is sufficient evidence of sustained peripheral perfusion failure during the morning of 16 January. Alice's supply of oxygen was mechanically regulated throughout.
70. Professor Chiswick put forward, while in the witness box, an alternative theory (which Dr Rosenbloom was prepared to espouse also). This involved the damage having occurred purely by reason of prolonged hypotension without hypoxia being the "driver". It was possible that this hypothetical occurrence was linked to a failure of autoregulation. He postulated also that it might have taken place without giving rise to acidaemia. The professor was unable to cite research literature in support of this phenomenon: nor did he have personal clinical experience of any other patient suffering encephalomalacia purely by reason of hypotension and without other indicators of hypoxia. In those circumstances, I am unable to find that this theory is likely to account for the brain damage rather than the more familiar explanation of peripheral perfusion failure, which was at least addressed in the expert reports.
71. It now seems very likely, as a matter of expert inference, that there was serious peripheral perfusion failure over a sustained period, sufficient to cause encephalomalacia, and that it occurred somewhere between (say) 17.25 on 15 January and 11.00 on 16 January. That is a datum. I must now fix that period in time more narrowly, as a matter of probability, in the light of such contemporary evidence as is available and the reasoning applied to it by the experts and, in due course, by counsel.
72. Professor Chiswick recognised that the data we have from 15 January was at least consistent with partial chronic hypoxic insult having occurred at that time. Indeed, both he and Dr Rosenbloom agreed that this was a "plausible" explanation for Alice's brain damage. Dr Ferrie and Dr Lyon, of course, go further and regard it as more probable. The scenario for which they contend was described by Mr Spencer as "wholly orthodox". It represents a familiar pathway; in his words, "hypoxia leading to compensatory circulation followed by decompensation and peripheral perfusion failure leading to brain damage to the watershed areas". Not only is that explanation consistent with what was happening to Alice on the evening of 15 January, but the alternative model is not one reflected either in medical literature or any of the experts' clinical experience.
73. I have come to the conclusion that the critical period fell between about 18.15 and 20.15 on 15 January, and that, consistently with the assessment of Dr Ferrie, most probably it occurred over the last hour prior to the commencement of mechanical ventilation at 20.16. As I have said, it is possible that this timescale would have been foreshortened if Alice's autoregulatory system was adversely affected by infection.
74. There was thus a combination of factors which leads me to conclude that it is more likely than not that the damage was incurred at that time:

i) By the time she reached the hospital, Alice was already cyanosed with cold peripheries.

ii) Capillary refill time was extended.

iii) After admission to hospital, she was given some oxygen which, as might be expected, caused her to "perk up" because it will have improved oxygen saturation to the blood, but it cannot with confidence be said that this temporary improvement would also have made a significant difference to tissue perfusion.

iv) It is clear that the relevant staff decided on her arrival at the hospital that she was in need of intensive care.

v) The records show that Alice's condition "deteriorated" after admission to the SCBU at around 19.30 and that she required resuscitation by means of external cardiac massage. Bradycardia was a persistent problem at this time.

vi) She suffered, so the notes appear to show, seven episodes of apnoea (including the first one at home, between about 18.00 and 18.15) prior to being ventilated at 20.16.

vii) Saturation with oxygen fell to very low levels consistently with severe hypoxia. It was noted that Alice took a minute to respond to the mask and bagging.

viii) Although there is a lack of direct blood pressure evidence between admission at 18.45 and 20.00, it would be unrealistic, in view of the other recorded signs, to conclude that it was other than low during this period. Dr Ferrie and Professor Chiswick seem to be agreed that the fact that on admission Alice's blood pressure was within normal limits would be consistent with her being, at 18.45, within the period of compensating circulation to the brain (i.e. prior to the commencement of damage).

ix) As to the later blood pressure, there is an entry in the Neonatal Intensive Care Chart of 67/36 which straddles the columns of 20.00 and 21.00. Professor Chiswick speculated that this entry would relate to the period before she was intubated and ventilated at 20.16. I am invited by Mr Moon to make such a finding, with a view to confirming that her blood pressure had returned to normal before intubation. I regard the position as unclear, since the "straddled" entry may indicate that the reading was taken at some point between 20.00 and 21.00 rather than at 20.00 sharp. I am not, therefore, prepared to make such a finding. I think it quite possible that priority was given to achieving ventilation and that the blood pressure might have been taken afterwards to see what progress was being made. But I do not need to make a finding either way. The blood pressure reading would, in either event, be consistent with the hypoxic insult having already come to an end.

x) There is also a lack of blood gas information prior to 20.38, but one cannot necessarily assume a lack of acidosis earlier, since the reading was taken approximately 22 minutes after resuscitation. The printout was not wholly satisfactory in any event, since there were computer generated question marks against some readings which no one could fully explain. It is true that there was none against the PH reading itself, but this does not mean that the question marks can simply be ignored. There might have been something unsatisfactory about the sample, especially as it was capillary rather than arterial. This is by no means implausible, as Dr Lyon said that it can be difficult to obtain a satisfactory sample from a sick baby. Ideally, the reading should have been retaken. Had this been done, it is quite conceivable that the reading would have been consistent with earlier acidosis. So much was common ground between Dr Ferrie and Professor Chiswick. (There was some criticism of Dr Ferrie for not having mentioned his reservation about the question marks in his report, but in the circumstances this seems to me of no significance.)

xi) Because of the damage suffered to the brain, it is likely that at some period there would have been evidence of acidaemia but it so happens that there is no record of it either on 15 or 16 January.

xii) Until 20.16, Alice was not stabilised and mechanically ventilated, as was the case by the following morning.

75. The final question is what difference it would have made if Alice had reached the Watford General Hospital by (say) 17.55 rather than 18.45. That is no longer controversial, but it is appropriate to explain why. The margins are clearly very tight indeed and one's first reaction is to be sceptical as to the Claimant's case on causation for that reason. As always, however, it must depend on the particular facts.
76. One matter mentioned by Dr Ferrie is that, if there had been a direct referral by the Defendant, as a general practitioner, the process might have been accelerated in the sense that she would have reached the SCBU more quickly than by self-referral, thus avoiding most of the delay between 18.45 and 19.30. That is, of course, quite possible, but it involves a degree of speculation. (It is clear, as it happens, that one of the note-takers that evening was mistakenly under the impression that there had been a GP referral.) I cannot be satisfied, on a balance of probabilities, that this would actually have happened or indeed as to how much more quickly treatment would have been brought to bear.
77. I must assume that if Alice arrived at 18.00 she would have been admitted by competent nurses and medical staff (as was the case, so far as I can tell, some 45 minutes later). The first apnoea would probably have occurred at some point thereafter, in hospital, rather than at home. The staff would have recognised in any event that Alice, having the symptoms recorded on presentation, required specialist and intensive treatment to reduce the risk of significant peripheral perfusion failure. If the first apnoea had occurred within a few minutes of arrival, it would have underlined the need for urgency. I see no reason to suppose other than that matters would have speeded up by at least 45 minutes. She would, therefore, have reached the SCBU by no later than 18.45 (quite possibly earlier) and had available to her those skills and facilities correspondingly earlier. She would probably have been intubated and ventilated shortly after that. She would also have been given albumin rather sooner. The likelihood in those circumstances is that most, if not all, of the peripheral perfusion failure that in fact occurred between, on the best estimate, about 19.15 and 20.15 could have been avoided or corrected. Thus the damage would not have occurred. With the benefit of hindsight, I would infer that the treatment Alice required was administered just too late.
78. Accordingly, as the parties were informed at the conclusion of the trial, I have resolved the issues of liability and causation in the Claimant's favour.