Cerebral Palsy, hospital transfer times, and ante-natal protocols in Scottish clinical negligence

In this recent decision, Claire Bayne or Wilkie v Tayside health board [2025] CSOH 111 from the Court of Session (Scotland’s highest civil court), the court examined whether there was a breach of duty in the ante-natal care provided to a mother, focusing on the accuracy of information provided on transfer times and the failure to arrange an ultrasound.

Background

The pursuer, Claire Bayne (or Wilkie), raised a claim on behalf of her daughter, Maisie, against Tayside Health Board (‘the Board’) following Maisie’s birth at Perth Royal Infirmary in April 2010. During labour, Maisie sustained a brain injury and developed cerebral palsy as a result. Notably, issues arose after medical staff did not arrange an ultrasound when the Symphysis-Fundal Height (‘SFH’) measured 3cm below expectations on the due date, leading to questions about whether Maisie received appropriate care before birth. The Board conceded that, if the labour had taken place at Ninewells Hospital (‘Ninewells’) in Dundee, Maisie would not have been born with cerebral palsy.

An evidential hearing took place, which was restricted to negligence and causation. The court focussed on whether there was a breach of duty during the ante-natal period.

Legal issues

There were two issues in dispute concerning whether there had been a breach of duty by the Board.

1. The first issue focused on whether the information provided to the pursuer regarding the emergency transfer time from the Perth Midwifery Led Unit (‘PMLU’) to Ninewells was accurate. The pursuer’s evidence was that during her tour of PMLU, she was advised that the transfer time to Ninewells would only be 12 minutes and she left feeling reassured by that. She maintained that, had it been made clear to her that the transfer time could not be guaranteed, she would have been concerned and considered it a significant omission on the part of staff not to inform her that there was no guaranteed transfer time.
2. The second issue centred on whether there had been a breach of duty regarding the failure to arrange an ultrasound scan after the SFH was measured at 37cm on 1 April 2010. The pursuer submitted that she had not been advised that a discrepancy had been identified at the examination and, at that stage, remained under the impression that her ante-natal care was progressing as expected. The Board argued that, relying on the wording of the relevant protocol, the midwife’s decision not to refer the pursuer for an ultrasound scan constituted a reasonable exercise of clinical judgement.

Decision

Addressing the first legal issue, Lord Young found it inherently unlikely that staff at the PMLU would have suggested a transfer time as short as 12 minutes, given the 22-mile distance between the two hospitals. He recognised that while the pursuer may have later felt that the risks associated with the PMLU were understated, there was no evidence to support the claim that the Board’s staff had deliberately misled her about the relative merits or drawbacks of PMLU compared to Ninewells.

Regarding the second legal issue, Lord Young concluded that the Board’s own protocol required a referral for an ultrasound scan in the circumstances where the SFH was measured 3cm below expectations on the due date and as such. Lord Young concluded it would have been wrong for the midwife to conclude that a referral was inappropriate. She did not require to make a clinical judgement; she ought to have been directed by the protocol. It was accepted that, had the scan been performed, it would have identified Maisie’s growth restriction and resulted in her birth at Ninewells, where she would have been born without injury.

Lord Young concluded that, had an ultrasound not been possible before labour began, the pursuer would still have been transferred to Ninewells in accordance with the relevant protocol, where continuous CTG monitoring would have allowed staff to detect any foetal distress and intervene before the injury occurred.

Consequently, Lord Young found the Board negligent and directed that a proof (trial) be fixed to assess quantum.

Key legal takeaways

• Adherence to protocol: the court determined that the relevant protocol did not require the midwife to exercise her clinical judgement and thus was required to comply with the protocol and refer the pursuer for a scan. Therefore, this judgement highlights that where a clinical protocol prescribes a specific course of action, such as referring a patient for an ultrasound scan, and there is no scope for exercising clinical judgement, strict adherence to the protocol is required. Lord Young did not go so far as to say that clinical protocols always have to be followed, rather his comments relate to the circumstances of this case; however, the judgement is an important reminder of the impact applicable protocols can have on determining liability in clinical negligence cases.

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