134 On certain matters of fact, findings of credibility need to be made.
135 Dr Swan was subjected to minute, detailed cross-examination of the course of events during the plaintiff's time under her care. The defendant was both honest and attempted to be painstakingly accurate and fair to others. Where the parties differ, the contemporary records tend to support the defendant. A large number of allegations of negligence are made. She gave very thoughtful and careful attention to the questions and her answers and I was impressed by her honesty and thoroughness. She is a very experienced practitioner in the limited field of obstetrics in which she practices and, obviously, cares deeply for her patients and their babies.
136 For the commonsense and practical reasons given by the defendant and in light of the expert evidence concerning the predictability of birth weight, evidence of which the defendant was aware, I do not accept the plaintiff's evidence that she told the defendant that if the baby was to weigh nine pounds or more, she was to be transferred to other care for a caesarean section to be performed. Nor do I accept her evidence and submissions that, if offered a caesarean section during labour and was properly advised about that, she would have made an informed decision to do so. The plaintiff never herself raised the issue. Nor do I accept that, on medical grounds, the defendant had a duty to do so. Whilst Mr Johnson argues that the defendant has no memory and no written record of the issue on which the plaintiff is adamant, in my view, the lack of any clinical note of such a matter, in any event, suggests it did not occur.
137 It is to be noted that no complaint of breach of any such arrangement is made amongst the abundant particulars. Indeed, no pleading alleges such an arrangement, although counsel for the plaintiff addressed it in opening.
138 That is not to suggest that the plaintiff and her husband did not have concerns about delivery of a large baby. That is entirely natural. It is also entirely natural and, in my view, within the necessary limits of truthfulness and proper care, desirable that the defendant was reassuring to the plaintiff. The questions are whether there was any explicit agreement dealing with the matter and, if not, whether the defendant, in any event, failed in her duty of care in any respect in relation to the fact that the plaintiff delivered a large baby.
139 Nor do I accept the plaintiff's submissions in closing as to the defendant's consultation with Dr Hugo. I specifically accept the defendant's account of the matters upon which Dr Hugo was consulted. The important issue is not precisely how that consultation came to be organised. In my view, it is entirely reasonable to accept that the records support, or are consistent with, the defendant's account. Neither the plaintiff nor Dr Hugo was able to contradict the evidence. I draw no inference from the lack of any notes made or account rendered by Dr Hugo.
140 In any event, no suggestion was put to him about that. Rather, he agreed that the phrases remembered by the plaintiff as being ones he used were one he did on occasions use. They suggest that the consultation went beyond concern with a non-reactive trace, as does the fact that he undoubtedly performed a vaginal and abdominal examination. Whilst a failure to consult a specialist in the circumstances would, it seems, on the expert evidence, have been a failure of care, the question would, in any event, then become whether it was causative of injury or loss. I refer to causation and quantification matters below.
141 The evidence of Professor Pepperell, which I totally accept, makes his views quite clear - that nothing untoward or negligent took place in the plaintiff's care after admission. Given that and the evidence of Associate Professor Dickinson, I do not intend to deal individually with each of the many allegations of negligence.
142 On the expert evidence which I accept, I do not think it was negligent of the defendant to fail to offer or advise use of ultrasound to estimate foetal weight, as argued for the plaintiff. The evidence strongly shows, in my view, that the plaintiff's emphasis on maternal weight gain and the use of ultrasound for this purpose to have been misplaced.
143 Mr Johnson, in closing, as in evidence, also spent considerable effort to criticise the defendant's care on the issue of syntocinon use and on the issue of maternal distress during labour. For the reasons given, I accept the evidence of Professor Pepperell and Associate Professor Dickinson as to those issues. The related issues of syntocinon and epidural use and maternal distress during labour call for experienced judgment. I am not satisfied there was any breach of duty.
144 Mr Johnson argues that, by 4.30 pm on the day of labour and thereafter, the issues should have been discussed with the plaintiff and a decision left to her, in light of that, to give informed consent as to whether to have a caesarean section. My view of the expert evidence is that it establishes that no such recommendation was called for. In my view, to suppose that informed decision making could, and indeed should, be properly left to the plaintiff in the absence of such a recommendation, is not established. Again, however, questions of causation and loss would arise even if my view on that was to be in error.
145 I am not satisfied that there was a breach of the duty of care.
146 Mr Johnson argued strongly in closing that while the events immediately following delivery of the head of the baby give rise to no allegation of negligence or particular of injury or loss, they go to issues of credit so that the various accounts are matters on which I should make findings of fact. I do not agree. As to the evidence of the two midwives, the issues do not arise - they are not parties and, as mentioned, no legal consequence flows from their evidence. In my view, the differences stem probably from misunderstandings and confusion and, given the passage of time, possibly memory issues also. It is not the case, in my view, that the differences of evidence reflect on either the truthfulness or the accuracy of the defendant (both of which, in any event, I accept) or, for that matter, the truthfulness of the plaintiff. The plaintiff could not, in any event, be expected to be accurate in recounting medical matters at such an emotion-laden moment.
147 It is clear that the plaintiff felt exhausted, emotional and worried for some time after giving birth and that she felt let down by the defendant's failure to explain matters to her afterwards. She terminated the defendant's appointment as her practitioner and consulted Dr Gunnell.
148 The events the subject of this trial were clearly deeply traumatic, not only for the plaintiff and her husband, but for the defendant who, it seems, ceased obstetric practice shortly thereafter.
149 It is inevitable that during this traumatic and difficult process of birth, there will be matters for concern and numerous and varying issues to be considered over a significant period of time. It may be that discussion or consultation afterwards would have avoided a good deal of bitterness. It also may be that the defendant would be well served with a better "bedside manner". These things have, I think, contributed to misunderstandings on the plaintiff's part. In addition though, and much more importantly, the plaintiff seems to have misunderstood or misconstrued a number of matters on which she has little, if any, knowledge or understanding and has taken a "worst case" view of events, which she had, rather naively and optimistically expected to be less difficult than they were. The plaintiff has been taken by surprise and not reassured to the level her personality requires and has drawn unsustainable and over-dramatic conclusions about her experiences.
150 Whilst no doubt truthful, the plaintiff, and perhaps her husband, have, to some extent, both misconstrued and reconstructed events, in my view.
151 No doubt, as a result of this trauma, a number of irrelevant issues started to intrude into the hearing as a consequence - three examples of matters which I refused to allow to be addressed were questions of the defendant's general attitude to epidural use at the hospital in question, a much earlier birth involving a different patient and shoulder dystocia in delivery, and whether the defendant rendered an account to the plaintiff in the present matter. None is capable of assisting in the objective examination of the issues before me. Each was capable of detracting therefrom through the introduction of inappropriate inferential reasoning.
152 Clearly, in some matters, the plaintiff's understandings of events were deficient as when she thought the episiotomy cut was repaired without taking account of the need to deliver the placenta. On other matters, such as the way in which the baby's shoulders were delivered, the events seem to have been confused and confusing in the minds of those present except the defendant. Certainly, everyone concerned including the defendant found them traumatic. The only important questions for me though are whether the plaintiff has established the defendant's negligence and, if so, whether she has also established that this was causative of injury or loss to the plaintiff.
153 The defendant's duty was to use the reasonable standards of care and skill to be expected of a general practitioner experienced in obstetrics in the given and dynamic situations with which she was faced. That she did. Hindsight is of little comfort or utility.