Gillian Galbraith - Blood In The Water

I wholeheartedly accept the evidence provided by Dr Clarke. She impressed me as a conscientious witness, meticulous in considering all the questions put to her and coherent and consistent in responding to all such questions. In particular, she provided an entirely believable account of the meeting that she had with Dr Ferguson at which she checked that Ms Mair had received the information that she was entitled to receive. Further, that meeting took place within the acceptable timescale described by Professor Drew. She is, very evidently, a first-class physician. Dr Ferguson confirmed Dr Clarke’s account of the meeting, including its timescale and content.

He, also, was an impressive witness. He spoke to the occasion of his second meeting with Ms Mair when he advised her inter alia that she could have a Caesarean section, prior to the onset of labour, and described the risks and benefits associated with elective Caesarean section, emergency Caesarean section and spontaneous vaginal delivery. As noted earlier, the records contained an entry anent a second meeting between Dr Ferguson and Ms Mair and it recorded that she had received appropriate advice relating to the modes of delivery open to her and the risks and benefits associated therewith. In all the circumstances, I do not consider that the pursuer has proved any fault on the part of either Dr Clarke or Dr Ferguson…’

Alice read on, skipping the parts of the judgement she found incomprehensible and starting again at a description of the child’s birth and the consequences of it:

‘… Davie was born on 10 thJanuary 1999 at 17.10 hrs. By 16.30 hrs on that date the fetal heart had dipped abnormally low to 80 beats per minute and it remained at this dangerously low level until 16.50 hrs at which point Dr Elijah was informed. Dr Elijah attended, as soon as he was able to do so, reaching the pursuer at 17.05 hrs. He performed an immediate vacuum extraction on the pursuer and the child was finally born, as noted, at 17.10 hrs. The measures taken by Dr Elijah with regard to the management of the pursuer’s postpartum (after delivery) haemorrhage were entirely appropriate. He called the Consultant on call, Dr Naylor, as a matter of urgency. Dr Naylor attended, assessed the situation and performed an exploratory operation. This revealed inter alia that the pursuer’s womb had ruptured, through the old Caesarean section scar. Attempts to suture the rupture failed and accordingly Dr Naylor required to perform a sub-total hysterectomy, involving the surgical removal of the pursuer’s womb with her ovaries being retained. It was clear from the evidence that the baby’s abnormally low heart rate, prior to birth, resulted from the rupture of the scar. No rupture of the scar would have occurred if the pursuer had undergone an elective Caesarean section prior to the onset of labour. Had said scar not ruptured the baby would not have suffered asphyxia in the course of his birth and gone on to develop the catastrophic brain damage attributable to it. Equally, Mrs Mair would not have experienced the postpartum haemorrhage she endured or required to undergo the sub-total hysterectomy undertaken to stop the otherwise uncontrollable bleeding.

Due to the rupture of the scar Davie’s brain was subjected to severe oxygen starvation. He is now very severely physically and mentally disabled. He has been diagnosed as suffering from cerebral palsy affecting his whole body. His limbs and his trunk are subject to uncontrollable fluctuations in tone. He cannot roll, sit, crawl or stand. He will never be able to do any of these things. He requires to be carried everywhere and, at present, this is done by his mother. As his weight increases this will become increasingly difficult for her. He has no useful function in either hand. He cannot reach out for objects or hold them if they are put in his hand. He has no recognisable speech or language and possesses no means of communicating even his most basic needs. He has no understanding of speech or gesture. He screams, for no apparent reason, occasionally during the day and usually twice per night. He has no intentional movements and has joint problems affecting both hips. Both have been operated on but, nonetheless, they appear to cause him considerable discomfort. Davie has very limited cognitive function, suffering from severe intellectual impairment. He is unlikely to exceed the level of function exhibited by a 6-month old baby in this regard. Due to his brain insult he is prone to epileptic seizures. He requires, and will always require, to be fed through a tube in his stomach. He often regurgitates, or vomits, food ingested. He is doubly incontinent and will never achieve continence. He has a very disturbed sleep pattern requiring to be comforted by the pursuer, on average, six times per night. Since his birth Davie (as he has always been known by his family) has been cared for selflessly by his mother, Ms Mair. The standard of care provided by her to her son has been exemplary and his lack of hospital admissions is in itself a testament to the excellence of the care provided by her. It would be no exaggeration to say that since his birth Ms Mair has devoted her whole life to the physical and mental needs of her disabled child. Originally, she received some assistance from the child’s father, Samuel McBryde, but the extent of the care provided by him appears to have diminished over time as the severity of the child’s overall disability became more apparent. Unfortunately, this meant that as Ms Mair’s burden increased the support provided by the child’s father decreased. Fortunately, she has had one steadfast rock of support since Davie’s birth, her brother, Donald Mair. He has, to the best of his ability, done everything in his power to help his sister and nephew. He has rendered physical assistance and moral support and his own marriage may well have been a casualty of his fraternal devotion… The total claim advanced on the pursuer’s behalf, which included inter alia the assistance of professional carers throughout Davie’s life, was for £1,500,000. Had I found in her favour I would have awarded her, for the reasons adverted to above, the sum of £1,400,000. However, the pursuer has not succeeded in proving her case and accordingly no damages are payable to her…’.

Alice breathed out deeply. At last here was something that connected all four victims, even if the precise significance of the connection was not yet clear. The advocates who had successfully defended the case for the Trust were dead, and it was their efforts which had ensured that the Trust did not require to pay Ms Mair a penny in compensation. One of the doctors blamed for the catastrophe was also dead and the child’s father, who appeared to have sloughed off his responsibilities, had been killed too. She went over to her scanner and patiently fed sheet after sheet into it until she could e-mail the entire judgement to Alastair, adding a note to say that she would call at his house in about an hour’s time to talk about it.

One foot emerged through the froth of bubbles, quickly followed by the other. Somewhere under all the foam the soap was hiding and Alice searched, lazily, in the warm water for it, tracking down the soft bar to an area close to her left thigh. On the radio some man from Northern Ireland was berating an inoffensive woman for her ‘unthinking’ enjoyment of a film which, he claimed, denigrated the female sex as a whole and the role of the housewife in particular. With a feeling of omnipotence Alice switched him off, preferring, instead, the regular rhythm of the drip from the leaking cold tap. After a further quarter of an hour’s soaking she rose slowly out of the bath and began to dry herself, her mind preoccupied with the thought that they had entered the ring for the last round and the final bell was not too far off.