(a) Was there an unstable lie?
45Five obstetricians gave concurrent evidence, having earlier met and prepared a joint report for the Court. It is fair to say that on most issues there was a considerable divide between those obstetricians retained by the Plaintiff (Dr Molloy and Mr Clements) and those retained by the Defendants (Dr Lyneham, Professor Giles and Dr Challis). However, the obstetricians agreed on the definition of "unstable lie" as given by MacKenzie.
46It is clear from that definition accepted by all of the obstetric experts that an unstable lie is a reference to a dynamic situation and not to the position of the foetus on any particular occasion. By that definition the fact that Dr Browning wrote "unstable lie" on the antenatal card on 27 September could not truly be a description of an unstable lie simply because the head was in the right iliac fossa (as the entry suggests), unless Dr Browning was making a comparison with what had been earlier recorded, namely a consistent cephalic presentation and position. That Dr Browning was doing this is made clear by this answer he gave in cross-examination:
Q. Doctor, in writing "unstable lie", you were comparing her previous presentations and lie with the one that you found, weren't you?
A. Yes.
Yet he had not seen her for many months prior to this occasion.
47One of the expert obstetricians, Dr Robert Lyneham, gave evidence, with which the other expert obstetricians did not appear to disagree, of an alternative approach to the definition of "unstable lie". He said this:
BARTLEY: So Dr Lyneham, is that right, that if Dr Browning did write and mean "unstable lie", then he was writing it - and, if so, meaning it - within the parameters of the definition that's referred to in Mackenzie?
WITNESS LYNEHAM: No. Dr Browning was referring, if he wrote "unstable lie", to, on that occasion [27 September], there being an oblique lie. We have discussed this before. An oblique lie is unstable because it can't stay in that position. It's going to move one way or another, and it did. But I did refer earlier to the fact that there are two definitions that really are out there. One is an oblique lie which by definition is unstable because it won't say [scil. stay], and an oblique lie can be detected on one examination. And there is the Mackenzie definition of an unstable lie, which is, as we've said, a repeated examination where the lie changes from one visit to the next.
BARTLEY: And that's the definition which you all adopted.
WITNESS LYNEHAM: And that's the definition we all adopted for the joint report.
BARTLEY: And it's the definition that you would expect to be generally applied by a competent obstetrician who was a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists as at the year 2000.
WITNESS LYNEHAM: It would be an understanding of an obstetrician in 2000 that an oblique lie could be defined - or could be written down as an unstable lie. But we're now interpreting the records in retrospect. I wouldn't expect the Mackenzie chapter to be in the knowledge of a practising obstetrician, but I would expect the principles that are espoused in that chapter and the management of an oblique lie at 36 weeks to be understood, and I think I did refer to that in my report.
48The experts accepted that the description given by Dr Browning on the antenatal card ("head in RIF") was a description of an oblique lie.
49Dr Browning's evidence about why he wrote the words "unstable lie" on 3 occasions was very unsatisfactory. In saying that, I do not overlook the fact that he clearly conceded that he had no actual recollection of seeing Mrs Hirst at the consultations he recorded and that the evidence he gave (presumably) about what he recorded and the reasons for it, was based on his usual practice.
50Nevertheless, the evidence initially contained within his Statement was based upon false assumptions that he made, as he later conceded. In paragraph 10 of his statement he said this of his entry on the antenatal card on 27 September 2000:
The reference to an unstable lie was not a finding I made as this was the first time I saw Mrs Hirst and, on examination, the baby was lying longitudinally with a cephalic presentation, the head almost central. Rather, I used the term "unstable lie" because either Mrs Hirst mentioned it or Dr Flynn may have spoken to me beforehand and mentioned it . I do not now recall whether I spoke with Dr Flynn on 27 September 1999 (sic) about the reasons for his referral of Mrs Hirst to me. The words "unstable lie" appear in Dr Flynn's subsequent letter of referral. At the time I assumed that this was as a result of a conclusion or suspicion he had .
51Dr Browning was present in Court during the opening of Mr Bartley of Senior Counsel for the Plaintiff. In that opening Mr Bartley referred to Mrs Hirst last seeing Dr Flynn on 14 September 2000 before she became Dr Browning's patient on 27 September. He said also that Dr Flynn was absent at the Olympic Games in Sydney from 15 September 2000 for 16 days. Having heard that opening, Dr Browning, when he entered the witness box, said that he wished to make some changes to his Statement. He first said he wished to omit the italicised sentences in paragraph 10 (para [50] above).
52Similarly, he said he wished to remove the italicised sentences in paragraphs 15 and 27 as follows:
[15] I did not diagnose Mrs Hirst with an unstable lie at this consultation. I believe that I referred to an unstable lie as a reference to the history I had obtained from Dr Flynn or Mrs Hirst when I first saw her five days previously.
...
[27] I saw Mrs Hirst at Bowral Hospital on 2 October 2000 however I did not make an observation of an unstable lie. Rather, the reference in the notes to an unstable lie arose out of the suggestion presumably first made by Dr Flynn that she had an unstable lie . However the lie was not unstable during the time I saw her.
53Dr Browning was asked in cross-examination why it was that he wrote "unstable lie" on the antenatal card for the consultation on 27 September 2000. He gave this evidence:
Q. So you wrote down "unstable lie" because that was your clinical finding on 27 September 2000?
A. No, it was a potential finding rather than a clinical rather than an absolute finding.
Q. Doctor, you elsewhere adopt a practice of using question marks where you're not certain of a finding, don't you?
A. Yes.
Q. You've put no question mark on "unstable lie" on 27 September 2000, have you?
A. No.
Q. And you would expect anybody reading that, any medical person, to read it in the terms in which it's stated; namely, this woman has an unstable lie?
A. No, it's a warning for people to look out for that possibility.
Q. Doctor-
A. Because things change from day to day.
Q. Yes, but doctor, you wouldn't have lightly recorded a matter as significant at 36 weeks as unstable lie unless you found it, would you?
A. I would have recorded it if I thought it was a possibility rather than an absolute diagnosis.
Q. Doctor, that's just not true, is it?
A. It is absolutely true.
Q. And doctor, in the next part of the note, "head in right iliac fossa" you seek to describe what it was about the mother that led you to record the finding of unstable lie, don't you?
A. The "head in iliac fossa" gave me a suspicion of unstable lie rather than absolute diagnosis.
Q. Doctor, in writing "unstable lie", you were comparing her previous presentations and lie with the one that you found, weren't you?
A. Yes.
Q. Unstable lie is an observation of a dynamic condition, isn't it?
A. Yes.
Q. Sometimes the lie might be central, sometimes it might be oblique, sometimes in one fossa, sometimes in the other?
A. Mm.
Q. That's exactly what it means, isn't it?
A. Yeah, well, unstable lie has to - would have to imply at the very least a definite oblique lie, and this I wasn't able to determine.
Q. That's just not true, doctor.
A. It is true. By definition.
Q. Doctor, oblique lie is not a necessarily element in describing unstable lie, is it?
A. It is.
Q. Unstable lie is a description of mobility.
A. Yes.
Q. The word "unstable" means what it says; that is, there is mobility in the lie.
A. Yes.
Q. And it does not have to be a fully oblique lie to justify the use of the term "unstable lie", does it?
A. It has to be fully oblique or transverse to justify that term, or it has to imply that I've seen her on at least two occasions when the lie has changed from one pole to another.
Q. Does that mean that it's possible you might have seen her before 27 September?
A. No, no, it doesn't at all.
Q. It means then, doctor, that at the consultation on 27 September 2000 there was sufficient mobility in the lie to warrant the use of the term "unstable lie", doesn't it?
A. No, it doesn't mean it at all. It means that I am concerned about that possibility and want to impress on anybody looking at the card that they should be alerted to that possibility and take necessary steps should they find the lie still to be in a worrying position.
54The second time that Dr Browning wrote the words "unstable lie" was in respect of the consultation at the Maternity Outpatients on 2 October 2000.
55In his Statement Dr Browning said that he did not diagnose Mrs Hirst with an unstable lie on 2 October. In the sentence that he wanted eliminated from his Statement he said that he believed that he was referring to an unstable lie as a reference to the history he had obtained from Dr Flynn or Mrs Hirst when he first saw her.
56In his oral evidence he said that on 2 October he found that the head was central and that the baby was lying longitudinally so the diagnosis of unstable lie was no longer tenable at that point in time. He went on to say that he would still be concerned because the head was high and that was why he wrote "head central but free" on the pink antenatal card.
57In cross-examination he said that the question mark in what he wrote was linked to the words "unstable lie". He said an unstable lie was not a confirmed diagnosis - he wanted to confirm it, and 2 October was the date when he would be confirming or seeing what had happened. He said the reference to "head central" eliminated the possibility of an unstable lie, but then agreed that the fact that the head had moved from where it was on 27 September indicated some mobility. What he could say was that there was not an unstable lie on 2 October. He agreed that, because Mrs Hirst was at 37 weeks+, it was a cause for mild concern although it was not uncommon in a multigravida patient.
58Nevertheless, it was on this day that Dr Browning determined to put a red dot on the file. Despite what Dr Browning said in his Statement about what the red dot meant, I find that the proper interpretation of the red dot is that Mrs Hirst was to be regarded as a high-risk patient. That was what Dr Browning agreed with in cross-examination.
59All of the experts agreed that the only matters which could place her in a high-risk category were the unstable lie and the head being persistently high. In either case the danger is a cord prolapse. Mr Clements (with whom Dr Molloy agreed) was of the view that both unstable lie and high head were the same problem because the risk was the same.
60Of course, the evidence of all of the experts in this regard must be based upon inference, albeit inference informed by their obstetric expertise. Nevertheless, the only person who knows why the red dot was put on Mrs Hirst's file was Dr Browning. He appeared to have no recollection of when he did it, and his evidence about it was confined to the statement that she had moved from being an ordinary antenatal care patient to a high-risk patient.
61All of the experts (except Dr Challis) were of the view that the unstable lie was one of 2 possible explanations for Dr Browning having placed a red dot on Mrs Hirst's file. In my opinion, even if he was also concerned about the head being high, the matter of an unstable lie was likely to have been the principal reason she was regarded by him as being high-risk. He had found an unstable lie on 27 September (whether by it simply being an oblique lie on that occasion or, much less likely, by reason of his comparison with her earlier records) and he was still considering if she had an unstable lie (at the very least) on 2 October. Although Dr Browning gave evidence that it was a cause of mild concern on 2 October his decision to place her into the high-risk category on that occasion points strongly to his having more than a mild concern about the matter.
62I do not accept that the reference to "Head central" on 2 October eliminated the possibility of an unstable lie. There was no evidence of when he wrote the words on the Maternity Outpatients Record. If he wrote the words "? Unstable lie" before he examined her to suggest that the purpose of the consultation was to confirm or negative his previous diagnosis it would be extraordinary for him not to have noted after examination that the lie was not unstable if that was his conclusion. If he wrote the words after examining her he could not have eliminated the possibility of an unstable lie. That he had not eliminated it is demonstrated by what follows.
63The third time Dr Browning wrote "unstable lie" was when he saw Mrs Hirst in the Maternity Outpatients on 15 October 2000. In paragraph 24 of his Statement, a paragraph that was not amended along with the other paragraphs, Dr Browning said this of the consultation on 15 October 2000:
[24] I was on-call and saw Mrs Hirst and examined her. I refer in my note to the possibility of an unstable lie, again not because it had been unstable while she had seen me but because this possibility had been passed on from Dr Flynn.
...
64That cannot be the correct explanation (in the light of the other withdrawals). If, as he said, he had eliminated the possibility of an unstable lie on 2 October I cannot accept that he wrote it again just because Dr Flynn had thought it sometime previously. The highest the matter could be put for Dr Browning was that he wrote it because of what he had observed on previous occasions. That is not, however, the only explanation for his writing it.
65Between consultations with Dr Browning of 2 and 15 October Mrs Hirst saw Dr Flynn on 4 October. That seems to have been planned because Dr Browning noted in the Maternity Outpatient Record on 2 October "For review later this week with Dr Flynn". In his obstetric care notes Dr Flynn wrote in respect of the consultation on 4 October "Has unstable lie - cephalic. Not engaged". Dr Browning thought that Dr Flynn would have the expertise to diagnose an unstable lie. However he said it was a contradiction to record "cephalic" because that was a reference to presentation and position that would be inconsistent with an unstable lie.
66His explanation for Dr Flynn's having written "Has unstable lie" was that he was recording what Dr Browning had communicated to Mrs Hirst. (This, of course, was a complete reversal of his explanation in his Statement for having himself written the words on 27 September and thereafter.) It is to be remembered, however, that Dr Flynn's referral letter of 9 October 2000 said that Mrs Hirst had an unstable lie with the head not engaged. Dr Browning said he would not assume that Dr Flynn was communicating information to him that was current as at 9 October - rather, the referral letter was a late one sent to him for the consultation with Dr Browning on 27 September to enable Mrs Hirst to recover medical benefits for the consultation with a specialist. However, there is nothing in Dr Flynn's notes to suggest he had any suspicions or knowledge of an unstable lie prior to his consultation of 4 October. The reference in the letter of 9 October was either reference to a diagnosis made by Dr Flynn on 4 October or was a reference to what he was told Dr Browning had diagnosed on 27 September and, presumably, 2 October.
67Dr Browning's evidence that what he observed on 2 October had eliminated the possibility of an unstable lie cannot be accepted. If, as he says, the question mark on the Maternity Outpatient Record was linked to the words "unstable lie" there would be no need for him to have written that symbol and those words if he was satisfied that there was no unstable lie. Moreover, it would make no sense for him to have written the same symbol and words on 15 October 2000.
68Further, if Dr Flynn was only recording on 4 October information conveyed to him from Dr Browning he would not have written it if Dr Browning was satisfied on 2 October that the possibility of an unstable lie had been eliminated. Again, for the reasons I have given, the fact that Dr Browning put a red dot on Mrs Hirst's file on 2 October suggests that Dr Browning had not eliminated an unstable lie from his diagnosis on that day.
69There are other reasons why Dr Browning's evidence about what he found on 27 September, 2 October and 15 October should not be accepted. In my opinion, Dr Browning diagnosed, on a provisional basis, an unstable lie on 27 September. When he saw Mrs Hirst again on 2 October I find that he confirmed that diagnosis. On that day he contemplated sending her for an ultrasound but for unexplained reasons did not do so. In addition to the matters that I have discussed above in this section of the judgment, my further reasons for not accepting Dr Browning's evidence about what he found on 27 September, 2 October and 15 October, and for finding in the way I have indicated, are what follows.
70First, his initial reconstruction of what he did and why he used the term "unstable lie" is now acknowledged by him to be wrong. Secondly, he said he could not refute Mrs Hirst's account of the conversation that she had with Dr Browning on 27 September - that conversation included his statement to her "you have an unstable lie". Thirdly, he wrote the words "unstable lie" on the antenatal card on 27 September without any question mark or any other words or symbols to suggest it was only a differential diagnosis as Dr Browning asserted.
71In this regard some further evidence that Dr Browning gave about his understanding of what amounted to an unstable lie should be noted (T213 - 215):
HIS HONOUR
Q. Doctor, if you had a thought there might be an unstable lie on the 27 th --
A. Yes.
Q. -and you had a thought on 2 October when you asked her to come back partly I think to check that--
A. Yes.
Q. -but there might be an unstable lie--
A. Yes.
Q. -wouldn't you be thinking about a scan?
A. If I confirmed it on 2 October, your Honour, yes, certainly. But the fact on 2 October is confirmed and I confirmed it wasn't an unstable lie on that, on that consultation. The-
Q. You determined on that day that the head was in a central position?
A. Yes. Yes.
Q. Previously it had been central to the right, in the right iliac fossa?
A. Yes, that's right.
Q. Doesn't that mean it had moved?
A. Yeah. But it's only a very small amount. When you consider - unstable lie refers to the movement of the whole body. What we are talking about is a few centimetres, a couple of centimetres of the head moving (witness indicated).
Q. But isn't movement not indicative of an unstable lie?
A. That small amount of movement certainly not indicative, no.
Q. I see.
A. Unstable lie is the whole body rotating to a different position.
BARTLEY
Q. So doctor, does that mean that on the occasions, once every 3 months, that you had encountered a woman in your practice who presented with an unstable lie you only used the words "unstable lie" when the whole of the foetus had rotated?
A. Yes.
Q. Do you believe that that's in accordance with general obstetric practice?
A. Yes, I do.
Q. At that time?
A. Yes.
Q. So, you were conducting your practice as at September/October 2000 on the basis that you would only record an unstable lie if there had been complete rotation of the foetus?
A. Well, yes. The whole moved in, in, in (witness indicated).
Q. Doctor, if an unstable lie was your diagnosis on 27 September 2000, that means that what you discerned on that day was a complete rotation of the foetus?
A. No, I didn't determine that at all. I just said it was a tentative diagnosis or a possible diagnosis. There wasn't a rotation of the foetus at all.
Q. Why didn't you write question mark, doctor, on 27 September?
A. Question mark?
Q. Yes.
A. Because it alert (sic) myself and everybody else for that possibility ensuing.
Q. But doctor, without the question mark, according to you, what you're telling the next practitioner that reads these notes--
A. Yeah.
Q. -you have discerned a complete rotation of the foetus on 27 September, didn't it?
HIGGS: Your Honour, I object. That's not what he has said.
WITNESS: What--
HIGGS: Just stop when there's an objection taken.
BARTLEY: That is put as a proposition.
HIS HONOUR: That's not I think a fairly put proposition in the light of the evidence he has given.
BARTLEY: Could the doctor wait outside?
HIGGS: Sorry. I preface that with the word "so". That's the only point that I want to make from what has fallen from your Honour.
BARTLEY: Your Honour, it is a perfectly permissible question in that context.
HIS HONOUR: I think you had better put the question without the word "so".
BARTLEY: I withdraw the question.
Q. Doctor, recording unstable lie on 27 September without a question mark was intended to convey to the next practitioner who read that card that there had been a complete rotation of the foetus?
A. No. Because if you read on, "unstable lie - head in RIF". So it's, it's an indication that unstable lie was a possibility.
Q. You have nothing really, doctor, do you, to advance as to why if you thought it was only a possible diagnosis that you didn't use a question mark on the 27 th ? You have nothing to advance about that, do you?
A. No.
72That evidence suggests that Dr Browning has not recorded everything he observed, and/or cannot recall what else it was that caused him to write "unstable lie" on the 3 occasions. This adds support to what Mr Clements said:
I think there must have been something else going on that gave him concern that this lie was unstable.
73Fourthly, in paragraph 34 of his Statement, Dr Browning said:
When Mrs Hirst consulted me on 27 September 2000 she had already been seen on that day by Dr Flynn.
That statement was completely wrong which Dr Browning accepted in cross-examination. He agreed that he had no way of knowing whether or not Mrs Hirst had seen Dr Flynn on 27 September when he signed his statement. This is a further indication that Dr Browning's evidence about factual matters was entirely reconstruction. It was not at all reliable for that reason.
74Fifthly, Dr Browning gave this evidence:
Q. Doctor, in those cases where you had confirmed unstable lie, would you attach a question mark to it?
A. If I had confirmed?
Q. If in those cases, those one in every 3 months where you say you found unstable lie--
A. Yes.
Q. -would you record that as "?unstable lie" or would you simply record it as "unstable lie"?
A. Definitely "?unstable lie," yes. Yes.
Q. And doctor, where you were uncertain you would use the question mark?
A. Normally, yes. Yes.
75Although there is internal inconsistency in this evidence it shows, at best for Dr Browning, that if he wrote "? Unstable lie" he would be uncertain about whether or not there was an unstable lie. If that is accepted, it means his explanations for having written "? Unstable lie" on 2 and 15 October cannot be accepted. It also means that I can place no weight on any of Dr Browning's evidence concerning his usual practice when it involves writing notes on the medical records.
76Sixthly, I do not accept Dr Browning's assertion that the word written in the Maternity Outpatient Record is "seen". In the first place, the word looks as if it is "scan". Next, it makes no sense to have written the word "seen", and Dr Browning's explanation that he wrote it because there was nothing written on the Maternity Outpatient Record next to the words "presents with" itself makes no sense. Dr Browning's evidence in this regard was this:
Q. May I suggest to you that the first word in your consultation note is the word "scan". That's right, isn't it?
A. That's completely wrong. The word is "seen". Although it looks as though it could be "scan", I agree, but it's not "scan". It's "seen".
Q. That's your interpretation of that writing, isn't it?
A. That's my reading of that writing.
Q. If it said "scan", it would fit in with the discussion which Mrs Hirst remembers having had with you on 27 September 2000 about having a scan?
OBJECTION (HIGGS). Question withdrawn.
Q. Doctor, you can't possibly suggest that what you've written there is the word "seen", can you?
A. Yes, I can, because if you look at the English, it does makes sense. The whole point of that consultation, as I realised only the other day or whenever it was , is that it was a consultation initiated by myself. You said this morning earlier that there's no note against the "presents with", which is normally put there by the nurses, so you know, it is my consultation that I've "seen" her, query, "unstable lie". So it's "seen", query, "unstable lie" in place of whatever the nurses might write in that line which commences "presents with".
Q. So the question mark doesn't relate to the first word, you say?
A. No. The question mark relates to "unstable lie". (emphasis added)
The emphasised words point clearly to reconstruction and perhaps speculation.
77When asked about this again in the context of the Maternity Outpatient Record of 15 October 2000 where there was also nothing written alongside "Presents with" but Dr Browning had not written the word "seen", the following evidence was given:
Q. When I was asking you questions earlier about that page you drew the attention of the Court to the absence of any entry against the heading "Presents With"?
A. "Presents With", yes, indeed.
Q. Just stay where you are, please, Doctor?
A. Yes, yes, yes.
Q. And when I asked you why you said you'd written the word "seen" instead of "scan"-
A. Yes.
Q. -you said it was because nothing was written in the "Presents With" section?
A. Yes.
Q. So, Doctor, was it your invariable practice at that time that if those in the maternity outpatients had not written any reason for presentation, that you would write under "Consultation Notes" the word "seen" to demonstrate that you had seen the patient?
A. Not every time, no.
Q. Well, why sometimes and why not others?
A. I guess it's just a matter of a whim of the moment, I suppose.
Q. Come forward now to 15 October.
A. Yes.
Q. There's nothing written against-
A. Yes.
Q. -"Presents With" there, is there?
A. No.
Q. But you haven't written "seen" there, have you?
A. No.
Q. Doctor, it is nonsense to say that you wrote the word "seen" when you were actually seeing the patient?
A. No, I don't think it's -I don't think it's nonsense at all.
Q. Was that a practice you were taught as a young doctor, to write down the word "seen" when you saw a patient?
A. No.
Q. Sometimes you'd write that and sometimes you wouldn't, is that right?
A. Yeah. (emphasis added)
78The clear import of that evidence was that Dr Browning did not have an invariable practice about writing the word "seen" when nothing was written against the words "presents with". His explanation, in the absence of any memory for these consultations, must therefore be nothing better than speculation. He sought to support it, however, by suggesting that the word "scan" made no sense by this evidence:
Q. Doctor, I suggest to you again that the word on 2 October 2000 on the consultation note is in fact the word "scan"; it is absolutely clear that is the word, isn't it?
A. I don't think so at all. I don't think it makes any sense if you put "scan" there. As I-
Q. It makes no sense in the context of somebody who has told the Court that they raised the question of a scan with you?
A. No, it makes no sense in the context of that particular consultation.
Q. Do you say it's because "scan" could not possibly have been thought about at that consultation?
A. No, I say it because scan is not something that's ordered through the maternity outpatient department.
Q. So, is that your principal reason for saying that, that is, the words "seen and not scanned"?
A. It's one of the reasons, yeah.
Q. Would it not indicate that you had in mind that she needed a scan and somebody should arrange it?
A. No, it doesn't mean that at all.
...
Q. But you say that could not be the word "scan" because there was nothing at all to indicate that a scan was going through your mind even at that time, is that right?
A. But a scan would be indicated if, if the question mark was removed. But the fact that we have got "scan ? Unstable lie," scan query unstable lie doesn't make sense. It wouldn't be ordering a scan of query unstable lie. We would be ordering a scan if there was an unstable lie.
79A further reason for thinking that word is "scan" is that Mrs Hirst had already raised the question of having an ultrasound (even if Dr Browning had dismissed it at the time), coupled with the fact that Dr Browning agreed that if there was unstable lie then there must be a scan in the form of an ultrasound. Even on the best case for Dr Browning, the issue of whether or not there was an unstable lie was certainly in his thinking on 2 October. That makes it likely that the word he wrote was "scan".
80I note that, before the controversy arose about whether the word was "scan" or "seen" Dr Challis, retained by the Area Health Service, clearly interpreted the word as "scan" because at 2 places in his report when referring to the consultation on 2 October 2000 he noted that Dr Browning considered ordering an ultrasound examination at that time. He confirmed that that was how he read the word when giving evidence with the other obstetricians.
81The issue with regard to the unstable lie is focussed on events after 27 September to determine if such a diagnosis could be justified on those dates, and particularly on 2 and 13 October. The approach of the Defendants' obstetricians to the consultations that post-dated 27 September was to point to the finding that the head was central with the result that the baby must have been in a longitudinal lie and that the presentation was described in some places as cephalic. Those findings were said to be inconsistent with any diagnosis of an unstable lie on those occasions.
82Whilst the expert evidence from the obstetricians was very useful in informing the Court of medical matters, its limitations became clear when the experts were asked to opine on the written records of Dr Browning and others. What had Dr Browning meant by writing the words "unstable lie" on 3 occasions whether with or without question marks? Had he written the word "scan" or "seen" and what did each mean in any event? Did Dr Flynn refer to unstable lie only because Dr Browning had done so or did Dr Flynn make an independent diagnosis of an unstable lie? Why was a red dot placed on Mrs Hirst's file? The answer to these and other questions ultimately depend on evidence given by Dr Browning and inferences that the Court draws from the contemporaneous medical records although informed by the matters of medical expertise provided by the experts.
83As Dr Lyneham acknowledged (at T311) what the experts were doing was interpreting Dr Browning's records in retrospect. However, whilst those experts had an advantage of obstetric training and experience, they did not have the benefit of hearing all of the evidence in the case, particularly evidence from Mrs Hirst and Dr Browning. Hence the opinions of the experts, particularly with regard to the written records, could not be determinative.
84Another difficulty about the way the experts for Dr Browning (Dr Lyneham and Professor Giles) formed their views was on assumptions which are no longer reliable because Dr Browning changed his evidence. In particular, as Dr Lyneham makes clear in his report, he formed his views about the consultations on 27 September and 15 October (and presumably 2 October) on the assumption that the reference to an unstable lie was not a finding that Dr Browning made but was noted either because Mrs Hirst mentioned it or Dr Flynn may have spoken to Dr Browning and mentioned it.
85The experts retained by the Defendants, in answer to a question in the conclave whether it was consistent with widely accepted peer professional opinion for Dr Browning on a number of dates from 27 September 2000 to 18 October 2000 not to have made a diagnosis of an unstable lie, answered that it was consistent. However, the issue in the case is not so much what he ought to have done but what he in fact did. I have found, for the reasons that I have given, that he did make a provisional diagnosis of unstable lie on 27 September, confirmed it on 2 October, and was still concerned about it on 15 October 2000. He was correct in so doing. In those circumstances the experts' opinion about what he ought to have diagnosed based on their reading of the material becomes irrelevant.
86Dr Flynn's notes on 4 October and his referral letter of 9 October suggests that he also was of the view that there was an unstable lie. Dr Browning said that it was probable that he would have spoken to Dr Flynn after receiving the letter of referral, whether or not he obtained it before he saw Mrs Hirst on 9 October.
87The absence of Dr Flynn makes the task of resolving some of the factual matters more difficult. It was a matter of concern to me that Dr Flynn was not called to give evidence in the case. It is necessary to consider whether a Jones v Dunkel inference should be drawn and against whom. On one view, Dr Flynn was in the Plaintiff's camp since he was the GP attending Mrs Hirst. However, what was contained in Dr Flynn's contemporaneous notes and his letter of referral, and given what Dr Browning sought to prove concerning Dr Flynn (in the first instance that Dr Browning only used the term "unstable lie" because that had been told to Mrs Hirst by Dr Flynn, and subsequently that Dr Flynn only wrote the words in his documents because Mrs Hirst must have conveyed to him what Dr Browning had said) suggests that there was likely to be an evidentiary onus on the Defendant to call Dr Flynn. But I do not consider there is any need to resort to a Jones v Dunkel inference to reach the views I have formed.
88In my opinion, Dr Browning diagnosed an unstable lie, probably on 27 September, but certainly by 2 October. By 15 October Dr Browning had not satisfied himself that the unstable lie had resolved. This caused him on 2 October to consider sending the Plaintiff for an ultrasound (that was what was meant by the word "scan") but he did not do so. My reasons have been detailed in the foregoing discussion but can be summarised by saying (1) I accept the evidence of Mrs Hirst about what was said at the consultation of 27 September; (2) Dr Browning wrote the words "unstable lie" with or without a question mark on 27 September, 2 October and 15 October - the explanations put forward for this in the Defendant's submissions were not supported by evidence of Dr Browning; (3) the word written by Dr Browning on 2 October was "scan"; (4) Dr Browning placed a red dot on Mrs Hirst's file on 2 October which he agreed meant that she was a high risk patient - the only reasons she could have been a high risk patient was that there was an unstable lie and/or the head was persistently high.