Mrs. KT or K v. Lothian NHS Board [2009] CSOH 132

29 September 2009

The pursuer's daughter suffered from dystonic tetraplegic cerebral palsy caused by an acute hypoxic ischaemic episode shortly before her birth. The pursuer alleged negligence on the part of an obstetrician and/or an anaesthetist employed by the defenders who cared for the pursuer during her labour. After a proof limited to the issues of liability and causation Lady Clark absolved the defenders. Both the obstetrician and the anaesthetist were found not to have been negligent. The Court rejected the application of the maxim res ipsa loquitur in the circumstances of the case. As regards causation the Court was persuaded that there was no basis to conclude that the pursuer's daughter would have been delivered any earlier than was the case and that in any event the pursuer had failed to establish that her daughter would have been less severely disabled had she been born earlier. The case illustrates the importance of an expert's understanding of the test for professional negligence and of securing the expert's opinion expressed in terms of that test.

Iain Ferguson QC of Axiom Advocates appeared for Lothian NHS Board

http://www.scotcourts.gov.uk/opinions/2009CSOH132.html