Douse v Western Sussex Hospitals NHS Foundation Trust

In a clinical negligence claim, the standard of care is that of a reasonably competent practitioner performing the role in question. An obstetric registrar undertaking an independent caesarean section is judged by the standard reasonably expected of a competent obstetric registrar, rather than by the registrar’s personal experience or by the standard of a consultant.

Failure to deliver a baby within five minutes is not automatically negligent. The issue is whether, in the clinical circumstances, a responsible body of reasonably competent obstetric registrars could and should have achieved delivery within that period. Where a consultant later achieves delivery in the same clinical conditions using techniques available to the registrar, that may support a finding that the registrar lacked the necessary skill or failed to apply the appropriate technique.

The claimant suffered profound hypoxic-ischaemic injury during delivery by caesarean section. The uterus was opened at approximately 23.57, but delivery was delayed for about 16 minutes because the foetal head was impacted in a deflexed right occipito-posterior position and the pelvic inlet was narrow.

The obstetric registrar attempted delivery using several measures, including vaginal pressure, alteration of the operating position, an inverted T incision and terbutaline. The consultant obstetrician arrived after approximately 14 minutes and delivered the child within two minutes. Causation was conceded if delivery should have occurred within four to five minutes. The central issue was whether the registrar’s failure to achieve delivery within five minutes amounted to a breach of duty.

1. Claim succeeded. The claimant established breach of duty and causation. Damages were to be assessed, with consequential directions and costs to be agreed.
2. The applicable standard was that of a reasonably competent obstetric registrar performing the role undertaken. The court did not attribute to the registrar the level of skill, experience or training of the consultant, but neither did it accept that the registrar’s status relieved her of responsibility for managing a difficult delivery.
3. The correct inquiry was whether there was a responsible body of obstetric registrars who would not have been capable of delivering the child within five minutes in the clinical circumstances that prevailed.
4. The foetal head was significantly impacted and more deeply impacted than the preceding vaginal examination had suggested. The position was difficult because of the narrow pelvic inlet and the deflexed right occipito-posterior presentation. However, the difficulty was not such that delivery within five minutes was beyond the competence of a reasonably competent registrar.
5. There had been no material change in the clinical presentation between the registrar’s attempts and the consultant’s arrival. The physical measures taken by the registrar had not materially improved the position, and the terbutaline had not probably produced a significant change before the consultant began delivery.
6. The consultant succeeded by using techniques available to the registrar, including finding space behind the foetal head and flexing it. The most likely explanation for the different outcomes was that the registrar lacked the necessary skill or expertise to deal with the difficulty, or failed to apply an appropriate technique. It was unnecessary to determine whether that resulted from inadequate training or inability to respond under pressure.
7. The court rejected the contention that the delivery was so exceptional that the entire 16-minute period could not amount to negligence. The registrar’s failure to achieve delivery within five minutes fell below the required standard and caused the injury.