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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Brindley v Queen's Medical Centre University Hospital NHS Trust [2005] EWHC 2647 (QB) (24 November 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/2647.html Cite as: [2005] EWHC 2647 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/11/2005

Table of contents:

	Paragraph
Introduction	1
The evidence at the trial	3
Background matters	6
Guidelines	6
Amniotic fluid	10
Past pregnancies	12
The Pregnancy Assessment Centre	13
Record keeping at the PAC	14
The Claimant's evidence	15
Witness statement and evidence in chief	15
Cross-examination of the claimant	31
Re-examination of the claimant	45
Mr Paul Brindley	47
Witness statement and evidence in chief	47
Cross-examination of Mr Brindley	54
Re-examination of Mr Brindley	61
Mr Eric Harper's evidence	62
Witness statement and evidence in chief	62
Cross-examination of Mr Harper	70
Re-examination of Mr Harper	82
Defendant's factual witnesses: Mrs Eileen Bradley	83
Witness statement and evidence in chief	83
Cross-examination of Mrs Bradley	96
Re-examination of Mrs Bradley	99
Dr Peter Twining's evidence	101
Witness statement and evidence in chief	101
Cross-examination of Dr Twining	108
Re-examination of Dr Twining	117
Dr Margaret Ramsay's evidence	119
Witness statement and evidence in chief	119
Cross-examination of Dr Ramsay	128
Re-examination of Dr Ramsay	133
Professor David James's evidence	134
Witness statement and evidence in chief	134
Cross-examination of Professor James	182
Re-examination of Professor James	200
Professor Mark Kilby's evidence	202
Closing submissions	203
Analysis of the claimant's case	219
Conclusion	236

Mr Justice Walker : Introduction

1. Owen Brindley was born on 4 August 1999 with branchio-oto-renal syndrome. He has no kidney on the left side and a very small abnormal kidney on the right side. He also suffers from severe mental disability and deafness. Mrs Michelle Brindley is Owen's mother. I shall refer to her as "the claimant" or "Michelle" as the context requires. In this action the claimant says that the defendant NHS Trust negligently failed to give her proper advice during the second trimester of her pregnancy. Her claim has two elements. The first asserts that she should have been told, but was not told, that there was a substantial risk that if her child were born the child would suffer from such physical abnormalities as to be seriously handicapped. It is not, however, said that this warning should have made reference to the mental disability and deafness which in the event occurred. The second element goes to causation. It asserts that if the claimant had been told this, she would have requested, and would have been granted, a termination of the pregnancy.
2. In this hearing I am concerned with liability only. The defendant is responsible for the Queen's Medical Centre University Hospital QMC in Nottingham where the claimant attended for pre-natal care and for Owen's birth. Professor James was the consultant at the hospital responsible on behalf of the defendant for the care of the claimant during her pregnancy. The principal issue is what he said to the claimant at consultations with her on Thursday 13 May 1999, Monday 17 May 1999 and Thursday 3 June 1999. The claimant's pleaded case is that Professor James reassured her that all was well, and made no mention of risk of disability or the possibility of a termination. The defendant says that there was no reassurance that all was well, and that on the contrary, both the risks of disability and the possibility of termination were discussed on each occasion, with the claimant deciding that she wished to go ahead with the pregnancy.

The evidence at the trial

3. On behalf of the claimant I heard factual evidence from the claimant herself, from her husband, Mr Paul Brindley, and from her father, Mr Eric Harper. Factual evidence on behalf of the defendant was given by Mrs Eileen Bradley, Ultrasonographer, Dr Peter Twining, Consultant Radiologist, Dr Margaret Ramsey, Consultant Senior Lecturer in Fetomaternal Medicine, and Professor David James, Professor of Fetomaternal Medicine.
4. Witness statements had been lodged for all these witnesses. Both sides agreed, however, that factual witnesses would be taken through their evidence in chief in the way that would normally be done if witness statements had not been exchanged. I give below a summary of key parts of the evidence. For this purpose it has been convenient to make use of the paragraph numbering found in the witness statements. Where evidence in chief did not significantly add to or detract from what was said in a particular paragraph, I have simply made reference to the paragraph in question.
5. Expert medical reports were prepared for the claimant and for the defendant by Professor Mark Kilby, Professor of Maternal and Fetal Medicine, University of Birmingham and Birmingham Women's Hospital, Edgbaston, Birmingham and Mr Stephen Walkinshaw, Consultant in Maternal and Fetal Medicine, Liverpool Women's Hospital, Liverpool. Both experts agreed that if Professor James had given the claimant the advice which he says he gave her, then he acted in accordance with an established body of medical opinion. They also both agreed that if the only advice he gave the claimant was the advice which the claimant says she was given, then he did not so act. There were some differences of opinion between the experts on particular matters, but in the light of their broad agreement on these two main points I do not need to describe those differences of opinion.

Background matters

Guidelines

6. Mr Pittaway QC, who appeared with Dr Evelyn Pollock for the claimant, drew attention when opening the case to two sets of guidelines issued by the Royal College of Obstetricians and Gynaecologists. First, there were guidelines on termination of pregnancy in cases of fetal abnormality. These noted, among other things, that the legal test for termination changed at the stage of 24 weeks after gestation – in this case between the consultation on 17 May and that on 3 June. Second, the College had prepared in 1997 – two years before the events giving rise to this claim - a publication entitled "Fetal Abnormalities. Guidelines for Screening Diagnosis and Management". This document is of particular importance to the present case. I shall refer to it as "GSDM".
7. Of particular note in GSDM were paragraphs 5.1 and 5.2:

5.1 Overriding principle

The overriding principle, when a fetal abnormality is suspected or diagnosed is that parents are the lead decisions makers with appropriate support. In summary, the approach is to:

• present the information

• present the choices

• offer additional discussions with other professionals

• allow time for decision making

• support and respect the parents' final decisions

5.2 Counselling with care coordinator.

This should take place as soon as possible after the mother has been made aware of the problem and ideally on the same day. Guidelines described in 3.3 should be followed for the setting and style of the interview. Ideally both parents should be counselled together.

8. The section of this document dealing with the setting and style of discussions with parents included paragraphs 3.5 to 3.7, which need to be set out in full:

3.3 Setting and style of discussions with parents.

• Parents should be included in all decisions

• Time should be made available Parents should not be rushed. One antenatal visit, early in pregnancy, should be identified to include explanation and discussion of tests available. When an abnormality has been diagnosed, the specialist talking to parents should, if possible, set aside a separate time for the discussion rather than during a busy antenatal clinic, for example.

• The place should be one where noise and interruption can be avoided. In particular, when fetal abnormality has been diagnosed the discussion is best undertaken in an office away from a busy clinic.

• When an abnormality is suspected or diagnosed the parents' wishes should be followed as far as is possible This applies particularly to where counselling takes place (eg home or hospital, clinic or office) and to the timing of counselling appointments (eg during or after the working day).

3.4 Introducing the subject of fetal abnormality to parents.

There is no single best way of introducing the subject.

• Screening for fetal abnormality: When giving information to parents on available screening tests, the best starting point is to put the subject of fetal abnormality into context by stressing how relatively uncommon such abnormalities are. It is important to emphasise that the tests available will not provide definite confirmation of abnormality. This should then lead into a discussion of what would happen if the tests were not normal. It is important to stress the limitations of screening, especially conveying the concepts of false negativity and positivity (ie what proportion of abnormal fetuses are missed by screening and what proportion of normal fetuses are included when the screening test is abnormal).

• Diagnosis and management of fetal abnormality: In contrast, when the discussion relates to an abnormality that has been diagnosed already or is strongly suspected, the best starting point is what parents already know or have been told about the problem.

3.5 The amount of information provided

The following are important:-

• Lack of information is a major cause of patient dissatisfaction with health care;

• Professionals tend to underestimate how much information patients want;

• The information provided must allow the parents to make informed decisions about available options.

3.6 The details of the information provided

Information from professionals should cover:-

The condition suspected or diagnosed; its nature and incidence. It is important that professionals are kept up to date with advances in prenatal screening and diagnosis:

• What further evaluation is available: what these tests involve, including the risks of invasive procedures.

• The significance of the results of further evaluation, their reliability and the meaning of positive and negative results.

• The management choices available once further information is available.

3.7 How to provide information in discussion

Psychological research … has shown the following are effective:-

• Avoiding jargon Everyday words should be used if possible. If technical terms have to be used make sure they are fully explained.

• Using simple words and short sentences. Information is more easily understood if this approach is followed.

• Being explicit in categorisation. If information has to be presented covering more than one topic (eg more than one abnormality, more than one investigation, or more than one management option), avoid confusion – present the categories simply, one by one.

• Checking that the parents understand before and after the information has been given. It is preferable to use open questions (eg tell me what you know about spina bifida?) rather than closed questions (eg 'Do you know about spina bifida?)

• Promoting understanding by repetition. Asking parents to repeat what you have told them is helpful to aid retention of information and to assess their degree of understanding.

• Being flexible in approach using alternative methods of presenting information. There are different methods of presenting risks (eg. Some parents may understand 'one percent' better than 'one in a hundred". It may help to use illustrative material such as line drawings or photographs, especially after an abnormality has been diagnosed.

• Allowing the opportunity to ask questions Sharing uncertainty. Professionals always want to give more information than is provided by the available evidence (eg. It is not possible to make a definitive diagnosis in many cases where an abnormality is seen on ultrasound and very often it is not possible to predict the prognosis). Other pitfalls include generalisation, exaggerating, minimising or oversimplifying a problem. Professionals must be prepared to say 'I don't know' or 'I am not sure'

• Summarising. This has two benefits: it will remind parents what has been said and will give them a further opportunity to ask questions. In some instances this may be usefully followed up with a letter to the parents summarising the main points discussed.

• Using of other materials. Such material should back up the information provided during counselling rather than be a substitute. Good booklets are available for most screening tests. Once fetal abnormalities have been diagnosed, it is helpful to provide a specific written or typed note or letter for parents. It is also useful to have this document duplicated for all professionals involved in the care of the parents so that everyone knows what has been discussed. Other helpful illustrative material includes tapes and videos, many available from support groups.

• Giving further appointment/next step. Whether the discussion has focused on screening or diagnosis, the plan of action must be clear before the interview closes. This should include an opportunity for further discussion. Parents should be given a contact name and telephone number.

9. It was pointed out by Mr Horne, who appeared for the defendant, that Professor James was chair of the working group responsible for the passages relied on by the claimant.

Amniotic fluid

10. A key indicator of potential abnormality is a low level of amniotic fluid. The amniotic fluid volume (AFV) can be assessed in various ways. A method used in the present case was that in each quadrant of the amniotic sac the maximum depth of the pool (MPD) in that quadrant is measured. The four measurements are added together, and this sum gives what is described as the amniotic fluid index (AFI).
11. Measurements of AFI in the claimant's case were as follows:

Date	AFI	Recorded Gestational Age
13.5.99	4.2 cm	3/A61 22 weeks 4 days
14.5.99	6.2	3/A65 22 weeks 5 days
17.5.99	7.5	3/A189 23 weeks 1 day
20.5.99	8.1	3/A66 23 weeks 4 days
27.5.99	3.3	3/A67 24 weeks 4 days
3.6.99	2.1	3/A68 25 weeks 4 days

Past pregnancies

12. The claimant married Paul Brindley (whom I shall refer to as "Mr Brindley" or "Paul" as the context requires) in 1993. They had two other children, Shane born in December 1996 and Mitchell born in May 1998. Both were healthy boys. There had also been two miscarriages. Prior to marriage the couple had had an earlier pregnancy in 1991. This was terminated because they did not feel ready to have a child at that stage.

The Pregnancy Assessment Centre

13. Most pregnancies at the hospital were dealt with by the Ante-Natal Clinic. However, problems with the claimant's previous pregnancies had led to treatment with proluton injections. Because of this history her pregnancy with Owen was handled by a specialist unit, the Pregnancy Assessment Centre ("PAC"). This was headed by Professor James.

Record keeping at the PAC

14. In common with the ante-natal clinic and with many other hospitals in the United Kingdom, there were two sets of antenatal records for each pregnancy at the PAC. The first comprised "hand-carried notes" ("HCN") – these were written on a card which the patient kept and was required to bring on each visit. The second comprised the hospital's own records of the patient's antenatal care. These included a record sheet with numbered pages, and individual reports on each scan.

The Claimant's evidence

Witness statement and evidence in chief

15. During the early part of the pregnancy ultrasound scans were carried out by Mrs Eileen Bradley, a specialist in ante-natal scanning. At paragraph 4 of her witness statement the claimant described going to the hospital with Paul on 13 May 1999. The experts agree that at this stage the gestational age was 22 weeks and 3 days. The claimant said that Mrs Bradley again performed the ultrasound scan, but told her that there seemed to be some kind of problem with the fluid around the baby. She was told she would have to go downstairs to the antenatal unit for a further scan.
16. Paragraphs 5 to 7 of the claimant's witness statement described the scan at the ante-natal clinic. This was in fact performed by Dr Twining. The scan lasted some time as the doctor was directing a student what to do and then he took over himself. After a while he asked if he could carry out an internal scan and, although she was surprised as this was unusual at 21 weeks, she agreed for him to do so.
17. After some period of time, Dr Twining asked the claimant to get dressed and then told her to sit down. She asked whether there was some sort of problem with the scan and he told her that there was and that the baby had no kidneys. She did not understand the implications of that at the time and asked him what it meant. Dr Twining said the baby would not survive without kidneys and that the claimant would have to have an abortion.
18. The claimant began to cry and she remembered that Dr Twining was writing something when she had to leave the room. The claimant's husband followed her out or came out shortly afterwards.
19. During examination in chief the claimant added, when describing the internal scan, "I suspected something was not right, I started to panic a bit."
20. As to what Dr Twining said to her after she had dressed and sat down, the claimant's evidence in chief was, I said, "Is there something wrong?" I was nervous. He said,

"Yes, I couldn't find any kidneys." He said I would have to have a termination. I asked him what he meant. He explained a bit about why. I can't remember what he explained. I was very upset, I cried. I walked out.

21. Paragraphs 8 and 9 of the claimant's witness statement then described how – still in a state of great distress - she and Paul returned to the PAC, and found that Professor James could not see them immediately. Rather than wait the claimant decided to go to her parents' house. Paul handed over an envelope which Dr Twining had given him and they left on the basis that they would get back in touch.
22. What happened after leaving the hospital was described in the claimant's witness statement at paragraph 10. She remembered the drive back to her father's house and being in a real state. When she got there she remembered going upstairs to tell her father about it and shouting at him in frustration and he began to shout back as he did not understand what had happened. The claimant's mother then came in and calmed them both down and the claimant explained what she had been told. The claimant's father said they needed to go back to the hospital to sort it all out and he telephoned to arrange an appointment to go back that afternoon.
23. Returning to the hospital that afternoon, the claimant's witness statement said at paragraphs 11 to 13 that by this time she was convinced she would now need an abortion and she expected to go back into hospital for it to be done that day. She arrived for the appointment with Professor James accompanied by her husband and father. They were shown into a room with Professor James, Mrs Bradley and another nurse. The claimant remembered that her father did most of the talking and they were then moved to another room where Mrs Bradley performed another scan while Professor James looked at the images before he took over. The claimant was still in a state at this time and she found it difficult remembering exactly what Professor James said. However, she remembered going in to see him convinced that she would need an abortion, but she came out and very much had the impression that the baby was OK but that they would need to continue to monitor her to ensure that that remained the case.
24. The claimant said in evidence in chief:

Dad, Paul and I went to where I'd been scanned by Mrs Bradley. I can't remember if I had to wait to see Professor James. Mrs Bradley was there, and someone else. I did no talking, I think Dad might have been talking, trying to make me feel better. We went to another room so that Mrs Bradley could scan me. She started, Professor James took over. The scan was all on the outside.

During the scanning Professor James was talking and saying, "That's there," and "That's there." Much more after that I can't remember, I was crying. "That's there," I thought meant kidneys. I think we went back to the first room and sat down. There was then a discussion, I can't remember how long it took. I can't really remember what Professor James said to me, my dad will remember that.

When I came out of that discussion I did not believe I would have to have a termination, because Professor James didn't mention anything about a termination. I'm sure of that. I think he said just carry on with the pregnancy. That was different from what Dr Twining said. I was relieved, but frightened, because I had to come back the next day.

25. The visit to the PAC on the following day was described by the claimant at paragraph 14 of her witness statement, and in evidence in chief in a little more detail than in her witness statement. She saw Dr Margaret Ramsay, a consultant at the hospital and a colleague of Professor James. She had a biopsy and another scan. She thought she saw Professor James, they glanced, but did not speak. There was not much of a conversation with Dr Ramsay. Paul was in the room with her.
26. Paragraphs 15 to 18 of the claimant's witness statement dealt with the period from then on until Owen's birth at the Queen's Medical Centre. I need refer here only to that part of paragraph 15 which covered the period up to and including 3 June 1999. This said that the claimant attended regularly for scans. As time went by, the fluid levels were clearly reducing, but no one seemed to be particularly bothered about this and they did not suggest it would cause the baby any problems. She remembered that she always used to ask about the kidneys and would be reassured, and she remembered being told that they could see a shadow and some tubes which suggested that they were satisfied. She was left with the impression that as long as they performed lots of scans and the baby appeared to be OK, it would be all right if the fluid level reduced. She was never advised that Owen might suffer any problems with his lungs. .
27. The claimant's evidence in chief about this period was:

On 17.5.99 the records show I saw Professor James for a consultation, but I don't remember. If termination had been discussed, I would remember, it is something I would have discussed with my husband or father. I have no recollection of termination being discussed.

As to 3.6.99, I have no recollection of seeing Professor James then. If termination had been discussed, I would remember, it is something I would have discussed with my husband or father. I have no recollection of termination being discussed.

I went to hospital on a large number of occasions, for scans and checks of AF, and for other reasons. What I understood to be the reason for attending hospital was that it was just to see that the baby was OK because of the fluid. I was aware that the fluid had been reduced.

The likely effect of reduction in fluid - in terms of whether the baby was likely to be handicapped - was not discussed with me by staff. I asked Mrs Bradley on a couple of occasions if she could see kidneys, and she said on a couple of occasions she could see tubes. When Mrs Bradley said could see tubes, I though everything was OK. As to Owen's lungs, no advice was given to me.

Dad asked Dr Ramsay about caesarean section. When I attended hospital I mostly went with Dad. I wanted to keep Paul at work so he did not lose his job.

28. Owen was born on 4 August 1999 at 34 weeks' gestation by planned Caesarean section. He was found to have breathing problems. There was a lack of beds at the QMC and Owen and the claimant were transferred to Leicester City Hospital the following day. There they were under the care of Dr Nevard, consultant paediatric nephrologist. At paragraph 20 of her witness statement the claimant described discussions with Dr Nevard. Dr Nevard asked what had happened at 21 weeks and said that as soon as a potential kidney problem was apparent she should have been transferred to the City Renal Unit and cared for there. A meeting took place between the claimant's family and Dr Nevard and another doctor when the treatment which the claimant had received at the Queen's Medical Centre was discussed. She informed Dr Nevard of the fact that the initial scan had shown that the baby had no kidneys and that had she known this she would have had an abortion.
29. When the claimant gave evidence in chief Mr Horne said that there was a possible question as to the admissibility in evidence of the conversation with Dr Nevard. He did not object, however, to my hearing the evidence and resolving the question of admissibility later. The evidence given orally by the claimant was:

In this conversation I said that if I had known that the baby had problems with its kidneys, then I would have agreed to a termination. Dr Twining had told me that a termination should occur. If Professor James had given me similar advice either on 17.5.99 or 3.6.99, that is something I would have wished to discuss with my husband. If there had been a substantial risk of physical handicap I would have agreed to a termination.

30. The claimant's witness statement concluded with paragraph 21, which said that she did not have a particular moral stance as far as abortion was concerned. Indeed, she had had an abortion when she was younger because she and Paul had not felt ready to start a family at the time.

Cross-examination of the claimant

31. In cross-examination the claimant explained that Owen was an unplanned pregnancy. She was aware by this time of what joy and happiness children could bring. She appreciated a third child would be really hard work: "You always start to worry about coping, but he was there, so I would have had him. With hard work and love, I would be able to manage."
32. When cross-examined about what Dr Twining had said, the claimant maintained that she was confident in her recollection that he told her she needed to have a termination. It was pointed out to her that the particulars of claim which she had signed on 31 May 2003 said that he had had advised her that "she should give serious consideration" to termination. She replied that she must have forgotten what he said when she signed the document, but added that the conversation with Dr Twining had always stuck firmly in her mind.
33. The claimant accepted that in the first phase of seeing Professor James, before going to another room for the scan, he asked what Dr Twining had told her. Throughout she was distressed. At the end – when she was still distressed - Professor James left the impression that everything was OK: "As far as I was concerned they wanted to do an amnio to check the chromosomes. Otherwise everything was alright."
34. When asked whether this was what Professor James said, the claimant replied that she could not recall what he said. She accepted that he mentioned the level of fluid. She could not remember whether he discussed lung development. She did not remember him saying anything about kidneys. She thought monitoring was for the fluid. She said she did not appreciate there was a chance that things could get worse. When asked why, in that case, there would be a need for monitoring, she replied that it was something she could not explain.
35. After a break, the claimant said that she was frightened about the process, not the result.
36. The advice that Professor James described giving on 13 May 1999 (see below) was then put to the claimant. For the most part she replied that she did not know whether he had indeed given this advice. However, she was adamant that he had not spoken about continuing or not continuing with the pregnancy. She said he had not summarised at the end, nor had he asked her if she understood. He had not explained that a large number of tests would be needed to see how the pregnancy was developing.
37. As to what happened on 14.5.99, the claimant did not accept that Dr Ramsay and Mrs Bradley said that a kidney could be seen on the scan.
38. Turning to 17.5.99 it was suggested to the claimant that there had been a lengthy conversation with Professor James. She replied that conversations were never lengthy when she saw Professor James. His account (described below) was put to her. She said that from what she remembered this was not accurate. He had never spoken about continuing or not continuing with the pregnancy. She denied that she had been prepared to continue because there was a realistic chance of a good outcome.
39. At this point Mr Horne suggested that the position on 17 May 1999 had been rather different from serious disability – the advice had been that a lung problem was unlikely, and the baby might be born with a kidney problem, but he might not be. He asked the claimant whether she would view that as a substantial chance of a serious disability - the answer from the claimant was that she did not know. She would have thought long and hard before making any decision. She accepted that she was very keen to have a third child. As against that, however, she said:

I would not have continued if I had known what was what. I would not have continued if I knew he was poorly.

40. She accepted that it was difficult to put out of her mind Owen's early suffering.
41. She thought Mrs Bradley was the only person who raised the question of fluid level dropping. It was put to her by Mr Horne that by the time she saw Professor James on 3 June 1999 fluid levels had dropped and that in a lengthy consultation Professor James said that because the baby was towards the end of the period of lung development he was still cautiously optimistic that there would be no significant problems about lungs. However, said Mr Horne, he was more pessimistic about kidney function, moving to the worse end of the prognosis previously given, but he could not indicate with precision what treatment would be required, and asked the claimant in the light of this new information whether she wished to continue, and she expressed the view that she wished to continue. The claimant replied that she did not accept this.
42. As to whether she would have viewed a prognosis of renal difficulties as sufficient for a decision to terminate, the claimant replied: "Yes. If there was anything wrong with him I would not have been able to cope. If there were any doubt about my baby I would have opted for termination."
43. It was suggested to her that this was a view she had reached with hindsight. Her reply was that after speaking to Dr Twining she was ready for a termination.
44. The claimant was asked to explain why, on her version of events, she was still distressed at the end of the discussion with Professor James on 13 May 1999. She replied:

Because I am a distressful person. I don't know if this aspect of my character hinders me taking in complex medical advice.

Re-examination of the claimant

45. In re-examination the claimant maintained that if prior to 3 June 1999 she had known that there was a risk of different levels of lung development and of the kidneys not growing, she would have wanted to proceed to a termination. The reason was that she would not be able to cope with a disabled child, as she already had two children. If on 3 June 1999 she had been told that prospects for kidney function were worse, this would have strengthened her view that she wanted a termination.
46. The claimant maintained that she did not recall Professor James ever saying she had a choice as to whether to continue with the pregnancy. That was something she would have remembered, and would have discussed with her husband and her father.

Mr Paul Brindley

Witness statement and evidence in chief

47. Mr Brindley's witness statement largely accorded with that of the claimant. Points deserving mention are set out below.
48. Mr Brindley said in paragraph 7 of his witness statement that after Dr Twining completed the scan on 13 May 1999 he sat down with both of them and told them that he had some bad news for them. He said the baby had got no kidneys and that it would not survive if it was born. He said they had no alternative but for the claimant to have an abortion that day. Dr Twining gave them a letter in a brown envelope which he had written out as they were talking to take with them to see Professor James who was the consultant in charge of the pregnancy.
49. The evidence in chief given by Mr Brindley was not that Dr Twining definitively said there were no kidneys, nor that he definitively said there would have to be a termination:

He said there was a problem, "I can't identify kidneys." That shook us up a lot. He said that without kidneys, you would need a termination as it won't live after the birth. Then Michelle started crying and not long after that she went out. I think he said termination sooner than later.

50. The witness statement of Mr Brindley dealt in paragraph 11 with what was said by Professor James on the afternoon of 13 May 1999. They duly met with Professor James who carried out another scan. He left them with the impression that he could certainly see something in the area where the kidneys should be and Mr Brindley remembered him saying that the fluid must be coming from somewhere and that therefore they must be OK as it could only be the kidneys which could produce it. By that stage, they were both very confused at the conflicting stories they had been told and from the emotional strain of it all. However, Professor James left them feeling reassured and certainly gave no impression there would be any problems with the baby, but he did tell them that the claimant would need to go back to the hospital regularly for the fluid to be checked and for the baby's heart to be monitored. There was no mention whatsoever of the need for any abortion and, as far as Mr Brindley was aware, there was no likely problem with Owen's lungs as this had never been mentioned to him.
51. In evidence in chief Mr Brindley said:

There was no conversation as the scan went on. I can't recall Professor James talking. At the end of the scan, we went to another room to discuss the findings. Up to that stage, I thought it was strange that we went straight to the scan without talking first. I did not see whether or not Professor James had the brown envelope.

I think that discussion after scan was in the small room we were taken to first. I mentioned that Dr Twining had found no kidneys. Professor James did not comment. He said there is fluid there, there must be kidneys there. Later he specifically commented, there must be kidneys there, there are tubes and a bladder. I can't recall every spoken word, I was comforting Michelle, at the end of it he said to carry on with the pregnancy, and continue to do more scans.

There was no conversation whatsoever about development of lungs. As to function of kidneys, there was no comment whatsoever through the pregnancy of dialysis or transplant. The first I knew of renal difficulty was when Owen was born.

When we had completed the discussion with Professor James, the message he was giving was that we had to carry on. There was no explanation, just that we carry on with more scans. When we went home after seeing Dr Twining, we had discussed termination - but in the discussion with Professor James there was no mention of termination.

Professor James gave information which differed from what Dr Twining had said. It was confusing: our life had turned upside down, then it was carry on. I did not know what was going on. I had mixed feelings, and did not know what to think. I left Professor James with a confused impression, and did not know where to go from here. There was no mention [by Professor James] of the baby being born with kidney problems, and no mention of lung problems.

52. As to the position after 13 May 1999, Mr Brindley's witness statement said at paragraphs 12 and 13 that, although throughout the following weeks until Owen was born, the fluid level was reducing all the time, they were not led to believe that there was any problem with this as long as the baby was regularly scanned. Mr Brindley had read what was said in the Defence in this action about the consultation with Professor James and he was certain that Professor James had not told Michelle in his presence that reduced fluid volume could lead to problems with lung development or pulmonary hypoplasia. Nor did he say the baby would have or might have significant kidney problems. He was sure that if Michelle had been told about this when he was not there then she would have told him.
53. In evidence in chief on the period after 13 May 1999, Mr Brindley said this:

I attended some other scans. Don't remember if I was there on 17 May. I went once more to see Professor James with the claimant. That was further away from the interview on 13.5.99. On 14.5.99, I can't remember if I was there.

Every time the claimant came from hospital we discussed what had gone on. She never said there was an option of continuing or not continuing. Never said we had a choice. Always said it was carry on, keep on with scans.

We have two older children, until someone tells you there is a problem I would not know. If Professor James had told us there was a risk with lung function, and outcome of kidney function was unclear, I would have opted for termination, because with Dr Twining saying there was no kidney, we did not want to get to end of term and have it die or have a disabled child. If after 3.6.99 the claimant had said Professor James was more pessimistic about kidney function, this would have strengthened my resolve to go for a termination.

Cross-examination of Mr Brindley

54. Mr Brindley said in cross-examination that when the claimant fell pregnant, both she and he were very keen to have this third child. He said that when he and the claimant went to her parents' house on 13 May 1999 they thought about bringing up a disabled child. At that stage all they knew was that the baby was going to die.
55. Two important questions followed. Mr Brindley gave answers which did not engage with the questions asked:

Q. Had you ever discussed with the claimant what you would do if the degree of disability were less [than fatal]? A. There would have been a disability.

Q. What if there were uncertainty? A. We were not offered a termination.

56. He then said, as to the level of risk needed to opt for termination:

We did not get to that point. If we had known how bad it was, we would have terminated.

57. When cross-examined about what Dr Twining had said, Mr Brindley reverted to what he had said in his witness statement. The message that had come over was that it was urgent to terminate.
58. As to what Professor James had said on 13 May 1999, Mr Brindley adhered to what he had said in chief. There had been nothing saying that the baby was not normal. When asked why intensive monitoring was required, Mr Brindley replied that he was not a medical person and did not know it was unusual to have weekly scans. There had been no mention of what could go wrong. His witness statement had accurately recorded that Professor James had said that the kidneys must be OK, rather than that he had seen them, but there had been no mention of lungs or renal function. He had not been as distressed as the claimant, but he had been distressed at the end of the consultation. It was then suggested to him that he would not have wanted to terminate if on 13 May 1999 he had been told about the risks in the way that Professor James described, and also told that further scans would provide further information. His answer was that this was a hypothetical question. He did not know if such a decision would have been difficult, as he was not put in this position.
59. Mr Brindley said that at later consultations Professor James had not at any stage mentioned kidneys. As to whether he saw Professor James on 17 May 1999, he might have been there. He was asked whether he would have wanted a termination if he had been told that the lung prognosis was better. He replied that he could not say, and that he was being confused by hypothetical questions. A decision about termination was one where he and the claimant would have an equal contribution. They had not been told that the advice on lung function was cautiously optimistic.
60. Mr Brindley then said that if they had been told that renal function was uncertain they would have had a termination, because of what Dr Twining had said. However, they had never been told about lung or renal function. He could not remember any consultation at which the doctors expressed concern at dropping levels of amniotic fluid. The claimant had told him there was measurement of fluid, that was all he could recall. He was sure that the claimant would have discussed the issue of termination with him if it had been raised.

Re-examination of Mr Brindley

61. A question was put to Mr Brindley in re-examination about the position in May and June 1999. If he had known that there was a risk that the baby's lung development would be impeded, and a risk that his kidney function would be impeded, would they have opted to continue the pregnancy? He replied that they would have opted to terminate, because they could not cope with what Dr Twining had said, that the child would die at end of pregnancy. If the position were that the baby would not die, they would still have opted to terminate, because they would not have been able to cope, and they would not have wanted the responsibility.

Mr Eric Harper's evidence

Witness statement and evidence in chief

62. Mr Harper's witness statement described at paragraphs 5 and 6 what happened at his house after the claimant had calmed down. She told him that following the ultra sound scan, they had been informed by a Doctor that the baby had no kidneys and that if it survived the pregnancy, it would not live after it was born and that she had been told she would have to have an abortion. She explained that they had tried to seek Professor James who was in charge of her care but had been unable to do so. Mr Harper telephoned the hospital and was told that Professor James would see them all if they went back at 2.00 pm, which they agreed to do. Michelle by now appeared to accept that if there was a big problem then she would have to have an abortion.
63. On this last point in evidence in chief Mr Harper was a little more precise: the claimant had said that if the baby did not have kidneys she would terminate the pregnancy, as the baby could not live without kidneys.
64. Paragraphs 7 to 10 of Mr Harper's witness statement described events at the hospital on the afternoon of 13 May 1999. They duly arrived and Professor James carried out the scan. In paragraph 7 Mr Harper recorded Professor James saying that Michelle should not have been told that she would need an abortion without his involvement. Mr Harper continued in paragraph 8 that he asked whether the kidneys could be seen and Professor James replied that he would see something there. Mr Harper said that the claimant had been told by another doctor that the kidneys were not present and that she would have to have an abortion. Professor James repeated that there was something there and he could see some tubes and therefore felt that the kidneys must be present as the fluid was coming from somewhere. He therefore reassured Mr and Mrs Brindley that they could go ahead with the pregnancy and certainly did not suggest that the baby would be anything other than all right or certainly that Mrs Brindley would need an abortion. Professor James did, however, say that the claimant would have to attend at the hospital every day to check the level of fluid and the condition of the baby.
65. Mr Harper's account in examination in chief was:

I went to the hospital with Michelle and Paul, and stayed with them during the scan and consultation. Professor James took Michelle to the scan room, I don't recollect seeing him before that. Eileen started the scan. Professor James was there, he did not say anything. I asked if he could see kidneys. He said he could see tubes. I think Eileen was carrying out the scan at this stage. I said nothing to Professor James about what had taken place earlier. I can't remember any other conversation with Professor James after the scan. After Michelle came off the bed, we went to a room off the waiting area with Professor James. Eileen was not there. I can't remember the conversation. There was no discussion of lungs or kidneys so far as I can recollect – it was, "We just carry on as we are."

Termination was never mentioned. As to whether there was any mention of whether to continue or not to continue, it was, "Continue." When I left the room, nothing was said about kidneys or anything, it was just, "We carry on."

66. So far as the period after 13 May 1999 was concerned, paragraphs 10 and 11 of Mr Harper's witness statement said that he attended the hospital on most of Michelle's visits. They got the impression that the fluid was reducing until the decision was made for the claimant to have a caesarean section. During this period, she had had numerous scans and Mr Harper would always ask the radiographer whether they could see the kidneys but he never received a detailed or satisfactory response.
67. Mr Harper's evidence in chief was that he did not remember seeing Professor James after 13 May 1999. The next time he went with the claimant was for the biopsy on 14 May 1999, when he stayed outside.
68. At this stage Mr Harper said that he was not sure if he went to scans after the biopsy on 14 May 1999. He revised this on reflection and said that if Paul was not able to come, then he (Mr Harper) would act as chauffeur, and if Michelle was having a scan he would be there for the scan.
69. Mr Harper said that if the subject of termination had been mentioned he would remember. In that event Michelle would have terminated the pregnancy. She had made her mind up that if there were no kidneys she was going to terminate.

Cross-examination of Mr Harper

70. In cross-examination Mr Harper accepted that after the scan there was quite some time left for discussion with Professor James. He said that his recollection of the conversation in the room they went to after the scan was simply, "You should carry on with the pregnancy." He agreed that this sort of discussion would take only 20 seconds. Mr Horne then pointed out that it must follow that much more was said. Mr Harper replied that there had been no mention of lungs or kidneys. He added that there had been no mention of what Dr Twining had said in the morning – the only time this was mentioned was when Michelle told him at home.
71. Mr Harper maintained that Professor James mentioned neither the kidneys, nor any prospect of death for the baby, nor termination. Mr Harper said that he himself had not asked about these things. He added:

Surely it was Professor James who should have told us what should have been done.

72. Mr Harper said that the first time they knew of a problem in relation to the lungs was when Owen was taken to Leicester. What he thought Professor James was saying was that everything was normal.
73. As to his own emotions, Mr Harper said that it had come as a shock to him how distressed the claimant was in the morning. This was first time he had taken her to hospital in this pregnancy. He added:

It was not bewildering to me. I went back to find out whether baby had no kidneys.

74. However he accepted that on his account he did not find out at any stage whether the baby had kidneys:

They never mentioned kidneys. All they mentioned was tubes.

75. It was pointed out to him that in that case he must have been pretty unhappy about the advice. His reply was to agree, and to reiterate that he had asked Mrs Bradley whether she could see kidneys. Her reply had just been that she could see tubes, and that was the end of it.
76. Mr Harper accepted that on 13 May 1999 Professor James said there was a certain amount of fluid there – but he had not explained that while he could not see the kidneys, because there was fluid there the kidneys must be working. Mr Harper initially said that, during the scan, Professor James measured pools of amniotic fluid.He then told me that it was Eileen who measured the pools, and that he was sure that on 13 May 1999 Professor James did not mention pools, and did not mention lungs.
77. He then said that he had no idea why the claimant had to go back for biopsy and further scans. At first Mr Harper said that at no point did the doctors explain why it was that she had to come back. Then, however, he accepted that on 13 May, as to what the biopsy was for, words were said, but he could not remember what it was for.
78. Mr Harper was then taken through the things that Professor James's witness statement said he had said on 13 May 1999, and Mr Harper denied each of them. Mr Horne suggested that unlike Dr Twining, Professor James thought it possible baby might survive, and that Michelle and Paul had latched on to this. Mr Harper denied that this had occurred. He accepted that on 13 May 1999 Professor James said he was making arrangements for review on the Monday. He then qualified this by saying that they had not been told that there would be further discussion on the Monday.
79. In relation to Michelle's visits subsequent to 13 May 1999 Mr Harper said that he did not see a doctor. He said he had a reasonable memory of what went on in 1999. As to whether he was sure that on such subsequent visits as he attended the claimant did not see a doctor, he said he could not be sure.
80. Mr Harper said he had no recollection of going back on the Monday, and as far as he knew did not go back on that day. Professor James's account of what happened on the Monday was put to Mr Harper, who denied it.
81. As to termination, Mr Harper said that the claimant's frame of mind was that she could not cope with a disabled child. The suggestion that there could be a disabled child had come from Dr Twining, not from any other doctor. There was then the following question and answer:

Q. What the claimant was really worried about was whether baby would survive? A. Yes.

Re-examination of Mr Harper

82. When reminded that the claimant did in fact see doctors after 13 May 1999, Mr Harper accepted it was possible that on such occasions he was not present or stayed outside the room.

Defendant's factual witnesses: Mrs Eileen Bradley

Witness statement and evidence in chief

83. Mrs Bradley holds the Diploma of Medical Ultrasound and the Diploma of the College of Radiographers, and has been a qualified ultrasonographer since 1991, specialising in antenatal scanning. After describing earlier visits by the claimant, Mrs Bradley's witness statement dealt at paragraph 7 with the claimant's visit on the morning of 13 May 1999. Her report of this date stated: "Difficult scan, unable to complete detail scan but ? reduced liquor AFI = 42mm". The scan was difficult not only because of the reduced liquor, but also because of the claimant's weight and the way that the baby was lying. As a result, she was unable to carry out a detailed scan.
84. Paragraph 8 added:

"In view of the fact that I could not complete a detailed scan, the Claimant was reviewed by Dr Peter Twining, Consultant Radiologist. Dr Twining is often asked to give an opinion on a difficult scan. I do not recall how his opinion was sought."

85. As to how the claimant came to be referred to Dr Twining, in evidence in chief Mrs Bradley added:

… the normal procedure is that if you see a problem, you speak to the consultant. I think I probably spoke to Professor James, told him what I had seen, and he said to ask Dr Twining for his opinion, so that he could get a fuller picture of what was happening.

86. Mrs Bradley's witness statement had not described events on 13 May 1999 after the claimant went to see Dr Twining. In evidence in chief she added that after seeing Dr Twining, the claimant and her husband came back up to the PAC, and were very distressed. She went on to describe the procedure when doing a scan with Professor James:

Usually Professor James will ask me to start the scan, then he will either take over or look over my shoulder depending on what he needed to see. I would normally be present throughout scan, but would not be present for counselling later.

Normally in the scan room there is conversation. If I am with Professor James, I would say, is that a bladder? Patients can be involved, normally we would say that we are going to have a look, and if there are any questions, please ask.

87. At paragraph 10 of her witness statement Mrs Bradley described scanning the claimant on 14 May 1999. Her report of this date stated: "AFI = 62mm, MPD (maximum pool depth) = 3.2 cm. See pictures. ? kidneys identified. Small bladder seen (8mm)."
88. The next scan carried out by Mrs Bradley was on 17 May 1999. Her witness statement at paragraph 11 said that her report on the scan detailed an amniotic fluid index of 75mm and a maximum pool index of 2.8cm, the AFI was below the 1st Centile for this gestation.
89. Mrs Bradley's witness statement continued in paragraph 12, saying that the claimant was now attending the Pregnancy Assessment Clinic on a very regular basis for close monitoring. Mrs Bradley saw the claimant again on 20 May 1999 for a further scan. Her report stated: "AFI = 81mm = 1st C [centile] MPD = 3.3cm ? Both kidneys identified, bladder seen = 10mm". Mrs Bradley presumed from her comments within this report that she thought she had identified both kidneys in the foetus. Her report showed there was still some liquor present and still a reasonable pool. However, she recalled that the claimant was still saying that she was leaking amniotic fluid.
90. Subsequent scans were described in general terms in paragraph 13 of Mrs Bradley's witness statement. After 20 May 1999 she continued to scan the claimant on a regular basis as directed by Professor James. The last scan was carried out on 2 August 1999, that is to say two days prior to Owen's delivery. By this stage, amniotic fluid was severely reduced showing only one pool measuring 2.1cm, but her report otherwise reflects a formal foetal assessment.
91. At paragraph 15 Mrs Bradley's witness statement explained that as an ultrasonographer, her primary role was to carry out scans as directed by the obstetric clinicians and document her findings. It was not the role of an ultrasonographer to give any specific interpretation of the scan findings, nor to counsel the patient in any way. Counselling was the role of the obstetrician. It was difficult, therefore, for her to comment on the content of the counselling and information provided to the claimant as Mrs Bradley was not present during counselling.
92. However Mrs Bradley explained in paragraphs 16 and 17 of her witness statement that she was able to comment on the content of the images of the scans which she had undertaken. During the scans it was probable that she informed the claimant what she saw on the scan at the time. It was also likely that Mrs Bradley told the claimant on a number of occasions that there was "not a lot of water around", but that there was still amniotic fluid present. Other than that, she would not have expanded further on her findings. In her view, the scan findings did not clearly suggest renal agenesis, but produced mixed results. On the initial scan on 29 April 1999, the 20 week scan failed to reveal evidence of kidneys. At a 20 week scan for a reasonable sized lady with reasonable liquor, she would have expected to be able to have seen the kidneys in the foetus.
93. At paragraph 18 of her witness statement Mrs Bradley added that during her many meetings with the claimant, she expressed anxiety about her baby on occasions and asked whether he or she would be all right and on one occasion she informed Mrs Bradley that she did not think she would be able to cope with a disabled child. For the reasons explained in her witness statement, Mrs Bradley directed the claimant back to the medical (obstetric) staff to discuss any concerns that she had with them.
94. Mrs Bradley was asked during evidence in chief to comment on Mr Harper's assertions about her response to his question whether she could see kidneys. She replied:

What I would actually tell the Claimant and her father was that these were questions for them to discuss with Professor James. I recollect saying this to the Claimant and her father.

95. As to paragraph 18 of her witness statement, Mrs Bradley added during evidence in chief:

… every time the claimant came she was anxious. I would say there was a change, she would ask if the baby was going to be alright. I would reply I could not say, and I would say she should see Professor James. As to the specific occasion when she said she could not cope with a disabled child, I remember her being particularly anxious on this day, I'm not sure if it was because the liquor was down. When she said it I said she must speak to Professor James. I don't think this was early on.

Cross-examination of Mrs Bradley

96. Mrs Bradley was asked whether on the occasion just mentioned she had spoken to Professor James. She replied that she was not sure. The difficulty was that when the scan was over, if Professor James was with someone else, then she would not be able to see him. In response to further questions she said she did not have full recall, but whenever there was a problem it was discussed.
97. Further questions concerned records made in May 1999 which I need not go into. Returning to whether she had raised the claimant's concerns with Professor James, Mrs Bradley again said that she was not sure.
98. Another aspect of the records in May was discussed. The cross-examination then returned to paragraph 18 of Mrs Bradley's witness statement. Mrs Bradley said that it was just on one occasion that the claimant said could not cope with a disabled child. This was an occasion when Mr Harper was present. Mrs Bradley maintained that she had said to the claimant, "You really need to discuss this with the doctor."

Re-examination of Mrs Bradley

99. In re-examination Mrs Bradley said that if there were a problem and she wanted to speak to the doctor, but the doctor was busy, she would relay her concerns to the midwives to pass on.
100. She repeated that all problem cases were discussed in the mother and baby club. She attended that club. It was a forum where she could raise concerns.

Dr Peter Twining's evidence

Witness statement and evidence in chief

101. Dr Twining is a consultant radiologist with a special interest in ultrasound, and has held that post at the hospital since August 1987. His witness statement at paragraphs 9 and 10 described what he found when he scanned the claimant on 13 May 1999:

I scanned the Claimant myself and the report of my scan can be seen at exhibit PT5. My report states "there is a small amount of fluid within the bladder. I cannot demonstrate the kidneys using either transabdominal or trans-vaginal scanning. Appearances point to bilateral renal agenesis". This scan was on 13 May 1999.

As indicated above, on scan, I could not see any kidneys present in the foetus. I carried out trans-abdominal as well as trans-vaginal scanning in an attempt to view the foetus completely. Often trans-vaginal scanning can produce better results because the probe is closer to the foetus which can be curled up at the bottom of the pelvis. My other main finding on scan on 13 May 1999 was the presentation of reduced amniotic fluid.

102. In evidence in chief, having been shown his report of the scan, Dr Twining said he had a very vague memory of this.
103. At paragraph 11 Dr Twining's witness statement dealt with his discussion with the claimant:

I informed the Claimant of my findings on the scan. I explained to her that I could not see any kidneys present in the foetus. I explained that her baby might not survive without kidneys and that termination of pregnancy was an option for her. I did not discuss termination of pregnancy at length, instead making arrangements for her to see Professor James to discuss the findings. I provided the Claimant with my report (exhibit PT5) and made arrangements for her to see Professor James. I understand that she spoke with Professor James later the same day.

104. In evidence in chief Dr Twining said that he would have said to the claimant that he had tried very hard, with a detailed scan, but he could not see the kidneys and he suspected they were absent.
105. As to prognosis, he would have said that as he felt the kidneys were probably absent, the outlook for the pregnancy was poor. He would have explained that the amniotic fluid would have eventually disappeared, and the baby was likely to have serious lung problems, possibly not surviving after birth. He would have raised the possibility of termination. His usual phrasing was that given the severity of the condition, if the patient decided not to continue with the pregnancy then he was sure her obstetrician would be sympathetic to that wish.
106. As to the suggestion that he told the claimant that she needed a termination, he said he would not have used that phrase. He suspected that the claimant was so upset that this was the feeling that she got: "I could understand that she might get that impression."
107. As to Mr Brindley's perception that a termination was required as soon as possible, the practice was to stress that termination is not something to rush into. The advice to a patient would be to go home, speak to her GP, and speak to her family. Dr Twining said it was inconceivable that he had said that the claimant needed to have a termination and needed it that day. He would not discuss timing. He had explained that they needed to see Professor James to discuss the pregnancy and future management options.

Cross-examination of Dr Twining

108. In cross-examination Dr Twining explained that it was part of his function to explain the results of the scan to the pregnant mother. Where there was a serious problem, there would be management discussions of termination.
109. In this case it was predominantly an ultrasound diagnosis. He suspected that the baby did not have any kidneys, and counselled the parents predominantly on that basis. A baby born without kidneys was quite likely to die in the early natal period. This was what he had in mind when he spoke to the parents as to likely prognosis and what they should consider as regards termination.
110. Dr Twining was shown the original defence, which had stated that he said that the baby "would not survive without kidneys". This was changed in the amended defence to "very unlikely to survive without kidneys". He said he did not know how that came about. His report had clearly said that he could not see the kidneys. He had not said the kidneys were absent. His report was clear, "points to agenesis". He was sure he had said the same thing to the claimant and her husband.
111. Dr Twining said it was not his practice to outline in the records his discussions with patients. He accepted that this was poor practice on his part, but he did not have the time to make entries of this kind in the records.
112. Dr Twining said that he and Professor James had not discussed the claimant's particular case. He did not know why that was.
113. Dr Twining added that even if he had seen the very small kidney which Owen in fact possessed, his counselling would have been very similar, to the effect that it was quite likely that the small volume of liquor might disappear and that the prognosis was very poor.
114. In response to a suggestion that he had made an ill-advised dogmatic diagnosis, Dr Twining said he thought it was the best diagnosis at the time of the scan. He explained to me that early on the amniotic fluid comes from the membranes, but this gradually disappears. The lung and the stomach can produce fluid. However as the pregnancy progresses urine becomes the major element of the fluid.
115. Asked if he had sent the claimant to Professor James for a second opinion, Dr Twining replied that she was sent for discussion as to the options. Two options were continuing or not continuing. There was also fetal karyotyping. To say just two choices was to oversimplify. She had not been sent to Professor James to discuss how to terminate – some patients wish to carry on even if there is a lethal abnormality. It is not as simple as terminate or not terminate.
116. As to there being an impression that matters needed to be dealt with as soon as possible, Dr Twining said that the claimant and her husband needed to see their consultant urgently because this was a serious problem. Further discussions needed to be carried out. He was aware that she was approaching 24 weeks and that different provisions of the Abortion Act would come into play, but that in no way affected his referral, which was to see Professor James as soon as possible.

Re-examination of Dr Twining

117. In answer to questions from me, Dr Twining said that in examination in chief he had been describing his standard practice in 1999. The frequency of raising the possibility of termination would be once every couple of months, or perhaps once a month. He was a doctor and so his role extended to counselling as well as describing to patients the result of the scan.
118. In response to a further question from Mr Horne, Dr Twining said that there was no reason to suppose that he had departed from standard practice in this case.

Dr Margaret Ramsay's evidence

Witness statement and evidence in chief

119. Dr Ramsay has been a consultant senior lecturer in fetomaternal medicine at the hospital since January 1998. Her witness statement at paragraph 6 said that she became involved in the claimant's care on 14 May 1999. The appointment followed the claimant's attendance at the hospital on 13 May 1999 when she had seen both Dr Twining and Professor James. The working diagnosis was of renal dysgenesis, due to the findings of oligohydramnios with evidence of ruptured membranes or poor placental function (ie the baby was normal size for age and there were normal blood flow patterns demonstrated with Doppler ultrasound in the placental circulation). It was possible that Dr Ramsay discussed the claimant's case with Professor James in advance of her appointment, although she had no recollection of this. Dr Ramsay performed a chorionic villous sampling (CVS), as had been arranged the previous afternoon and documented in the HCN.
120. In evidence in chief Dr Ramsay added that her training was substantially under Professor James. She saw Professor James counselling patients. She had not seen him fail to mention termination when appropriate. The style she had learned from him was to be open and frank and discuss all lawful options. As to this particular case, she explained her own state of knowledge in paragraph 7 of her witness statement:

At my meeting with the Claimant on 14 May 1999, I was aware of the findings on scan by Dr Twining and his scan report of 13 May 1999. I was also aware of previous scans performed at the Pregnancy Assessment Clinic and that Professor James's opinion was of renal dysgenesis (abnormal kidneys), as opposed to Dr Twining's opinion of agenesis (ie absent kidneys). I am aware that professor James had asked the Claimant to return on 14 May 1999 for karyotyping by chorionic villus sampling to rule out any anomalies which could explain the abnormal images on Ultrasound scan.

121. Having described in paragraph 8 of her statement the results of Mrs Bradley's scan of the claimant on 14 May 1999, in paragraph 9 Dr Ramsay said that she (Dr Ramsay) entered these results in the HCN. She documented the results of the scan of 14 May 1999 in the claimant's Co-op records. At this stage the claimant was 21+ weeks' pregnant and Dr Ramsay documented, "small pools of liquor, small bladder + ? both kidneys identified".
122. Dr Ramsay added in paragraph 10 of her witness statement that during her consultation with the claimant on 14 May 1999, she did not discuss the findings of the ultrasound scan on 13 May 1999 with her nor did she counsel her generally about the management of the pregnancy and the options available to her. The claimant was a patient of Professor James and it would not have been appropriate for her to counsel the claimant, when there was no new information to discuss. Dr Ramsay knew that Professor James would be seeing the claimant a few days later, when the results of the karyotyping (ie the chromosome count) would be available, in addition to further information about liquor volume.
123. Dr Ramsay described in examination in chief things that she would have discussed with the claimant in order to obtain the claimant's consent to the biopsy. She would have discussed the purpose, which was to obtain cells to allow a chromosome count of the baby to be obtained. She would also have discussed how on this occasion the placenta was the only place to take a sample, and the risks of the procedure which can result in miscarriage.
124. Asked whether she would have touched on the particular purpose in relation to the baby's kidneys, Dr Ramsay replied that she was unable to remember her precise words, but could not imagine doing this procedure without explaining why. In this particular case the reason was to investigate further the problems that had been identified. She would have said that there was very poor fluid or liquor and that they had had doubts raised as to the normality of this child's kidneys.
125. As to the suggestion that the previous day advice had been given that everything was normal, Dr Ramsay said that this did not accord with the counselling she gave on 14 May 1999. She was aware that there had been a difference of diagnosis. Mrs Bradley had undertaken another scan on 14 May 99, and had said to her (Dr Ramsay), "This baby has a bladder, it must have kidneys." They had been looking at the scan together because the biopsy was a scan guided procedure. She could see the bladder and they thought they had identified the kidneys, that is why she wrote, "?Both kidneys seen."
126. Paragraphs 12 to 17 of Dr Ramsay's witness statement described her involvement in the care of the claimant from 19 July 1999 until 4 August 1999, when Dr Ramsay performed the Caesarean section and Owen was delivered in a good condition.
127. At paragraph 21 of her witness statement Dr Ramsay added that the claimant's case was discussed generally at the hospital's weekly Mother and Baby Club meetings, where the ante-natal doctors met with the neonatalogists to discuss problem cases. They discussed results of investigations (eg karyotype results, speculum examinations) and report findings of fetal health surveillance tests (growth scans, liquor volumes, CTGs). The claimant's case was discussed at each meeting held from 17 May 1999 until early August 1999.

Cross-examination of Dr Ramsay

128. It was pointed out in cross-examination that these events were 5 years ago, and Dr Ramsay was asked whether she said she had an individual recollection of 14 May 1999. Dr Ramsay replied that she recalled that Mrs Bradley came and showed her the report and difference of opinion the previous day. She added:

We wrote definitely that we had seen bladder and liquor, and may have seen kidneys. I have an individual recollection of that. I don't have an individual recollection of discussion of the significance of the result, nor of the questions the claimant asked me.

129. As to what she said to the claimant:

The only recollection I have is of being in the scanning with Mrs Bradley, showing the liquor and the bladder to the claimant, and we thought we had identified the kidneys, but those are much more difficult to be certain about.

130. As to learning what she knew before performing the biopsy, Dr Ramsay said it was possible, but highly unlikely, that she did not have a conversation with Professor James about the patient, but instead learnt about what had happened from Mrs Bradley before performing the biopsy.
131. As to paragraph 10 of her witness statement, Dr Ramsay denied that her answers were inconsistent. It was not her role to discuss the findings of the scan the day before, nor to counsel. Her practice was to discuss why karyotyping was being performed. An explanation of why was always part of the preamble. The procedure carried a significant risk, and she always explained why she was doing it. What she would not do was to discuss the prognosis. That was the task of Professor James. She did not discuss continuing or not continuing with pregnancy.
132. Turning to the mother and baby club meetings, Dr Ramsay said that these discussions became particularly relevant when they came up to the possibility of delivering someone prematurely. Two lists from the club meetings had been produced showing that the claimant's name appeared for 17 May 1999 and 24 May 1999.

Re-examination of Dr Ramsay

133. There was no re-examination of Dr Ramsay.

Professor David James's evidence

Witness statement and evidence in chief

134. Professor James has been the holder of a chair in fetomaternal medicine and the Director of the High Risk Pregnancy Unit at the hospital since 1992.
135. In evidence in chief Professor James referred to a short version of his curriculum vitae, which attested to a distinguished career in obstetrics and fetomaternal medicine. He added that in relation to paediatrics, he held the Diploma of Child Health, and had worked as a junior doctor in child health. He was a member of the British Association of Perinatal Medicine, and of the Neonatal Society, and attended meetings to update himself on developments. At the hospital he participated in the weekly mother and baby club meetings. There the practice was that a baby on the list for such meetings stayed on the list until delivery when there would be feedback from the paediatricians – they were present at those meetings.
136. Over his career, he thought that the number of cases of oligohydramnios in mid-trimester that he had seen would be over a hundred. Possible causes include renal dysgenesis, something which was very rare. A common cause was renal agenesis; another lay with the valves, these both led to there being no fluid at all. The rarity of renal dysgenesis had two consequences. One was that the literature was limited and thus there was only a limited amount of data available on which one could give advice. Much of the data was derived from ruptured membrane cases. Secondly, it was very difficult during pregnancy to be sure about the prognosis, experience tells that the outcome can vary widely.
137. Professor James added that his attitude generally to termination of pregnancy was that he had no conscientious objections to late termination occurring in his unit. If the claimant had decided that termination was the route she preferred then after appropriate counselling he would have supported her in that decision.
138. Turning to GSDM, Professor James confirmed that he had chaired the working party responsible for the passages quoted earlier in this judgment. He agreed with the sentiments in this document. Telling parents the course he thought right as regards termination was not his approach. He followed the principles described in section 5 of GSDM. His role was to help parents understand the diagnosis, and what the implications were for the pregnancy and after birth if that were possible to predict. Sometimes there was no diagnosis, and one had to give an estimate of range of outcomes. If appropriate discussion with other professionals was offered. No time limit was set:

Once we feel that the parents understand all there is to know, perhaps not the second or even the third visit, once there are indications of the way in which the parents are heading, then it is our role to support the parents. Termination may be the correct option for one set of parents and not for another with the same diagnosis. It was not my role to tell parents whether to continue a pregnancy or not. My role was to help them to understand and come to a decision, and to support them in that decision.

139. His witness statement described the consultation on 13 May 1999 in detail. At paragraph 11 Professor James said that he had Dr Twining's report. His (Professor James's) perception of the claimant's understanding of the advice provided by Dr Twining was that she thought her baby was going to die shortly after giving birth. He remembered her being extremely distressed.
140. In evidence in chief Professor James said that he could not recall whether he saw the claimant, Mr Brindley and Mr Harper before the scan or on 13 May 1999, or whether he joined them during the scan. He knew he took over the scan from Mrs Bradley, because he was aware of a discrepancy between the scans of Mrs Bradley and Dr Twining, and in his view Dr Twining's finding of urine in bladder was inconsistent with Dr Twining's own diagnosis of renal agenesis. Accordingly Professor James would have wanted to do the scan himself.
141. At paragraph 12 of his witness statement Professor James said that he scanned the claimant. His entry in the HCN said:

"Oligohydramnios – N (Normal) Doppler Size No ROM [Rupture of Membranes] ? Renal Dysgenesis".

142. In evidence in chief Professor James said that he would have measured AFI during the scan in the conventional way, taking all four quadrants in order to arrive at a figure for pool depth. He had not recorded these measurements. He explained that he regretted that he did not write a lot more detail, but he had written the things he thought relevant.
143. Professor James described his assessment in paragraphs 13 to 15 of his witness statement. The results of his scan on 13 May 1999 were less pessimistic than the findings of Dr Twining. However, he had concerns about the viability of the pregnancy. His entry on 13 May 1999 said "? Renal Dysgenesis". He was using the term 'dysgenesis' to contrast it with that of 'agenesis', in that 'dysgenesis' means malformed and maldeveoped tissue, and 'agenesis' which means no tissue development at all or absent tissue, as used by Dr Twining in his report. He was faced with the evidence of Dr Twining's report of there being no kidneys present (renal agenesis) and the contradicting evidence of the presence of amniotic fluid. The presence of amniotic fluid conflicted with a diagnosis of renal agenesis because at this stage of the pregnancy, the amniotic fluid was made up of the urine produced by the fetus. The fetus produced urine from its own kidneys, and so the presence of amniotic fluid confirmed urine production which was dependent on renal function. Although he confirmed that he could not visualise kidneys on his scanning of the claimant on 13 May 1999, the presence of amniotic fluid suggested kidney tissue was present.
144. In evidence in chief Professor James added that on 13 May 1999 he thought the claimant's oligohydramnios was caused by some abnormal development of the kidney:

My findings constituted a renal abnormality, so I wrote renal dysgenesis, which is a potentially serious abnormality. I recognised this could pose a risk for fetal health.

145. On 13 May 1999 there was a range of possible outcomes that he felt could occur. In theory there were cases where in functional terms babies were normal – we do not need the whole of our two kidneys to function normally. The other extreme was chronic renal failure, at some point requiring dialysis, usually not in the first few days or weeks after birth, but sometime in the first year of life and ultimately requiring transplantation.
146. Renal prognosis would depend on how the volume of amniotic fluid progressed, in general terms. The closer one was to delivery the better indication one had of where post-natal renal function might lie. It was not as easy to predict at the stage that had been reached on 13 May 1999.
147. The outlook for renal agenesis was much bleaker, it should be regarded as a fatal condition. In the case of renal agenesis 98% of babies died in the first day or two of life because of pulmonary hypoplasia. Normal anatomical development of lung requires the baby to be breathing amniotic fluid in and out at a relatively low pressure. Though that fluid goes into terminal air sacs it allows normal cannicular development of the lungs. If no amniotic fluid is present for that critical phase of gestation then that anatomical development of the lung is impeded. Even though the baby may be well in the womb, after birth not enough alveolar tissue will have developed to allow gaseous exchange.
148. Professor James explained that he was aware in 1999 that the great majority of cases of PHP lead to death. He then described and analysed the some of the relevant literature – in the light of the expert witnesses' agreement I need not go into this here. It is sufficient to record that Professor James said that in counselling for risk predominantly he would be using the MPD, at that time there was better data available in that regard for assessing the risk of pulmonary hypoplasia.
149. On 13 May 1999 he thought there was no convincing evidence that pulmonary hypoplasia was inevitable. Gestation was only at 21 weeks, there was still 4 weeks of that phase of development yet to occur. Given that there was an AFI of 41 mm and some amniotic fluid present pulmonary hypoplasia was not certain.
150. Professor James's witness statement said at paragraph 16 that on 13 May 1999 he informed the claimant of his findings on the scan and their implications. He explained that the scan showed the presence of oligohydramnios (reduced liquor) which may be present as a result of a renal abnormality in the fetus, but he told her that he did not consider that the fetus did not have kidneys at all.
151. In examination in chief Professor James said that he recollected the actual counselling in this case. He remembered the claimant being extremely distressed, almost beside herself. The scan would have taken 15 minutes, then there would have been a very difficult period of discussion. It was difficult partly because of her distress, and partly because he had to portray not the same clear cut picture as to outlook which the claimant had come with.
152. Professor James continued:

The advice given by Dr Twining was the starting point. I always ask, "What do you understand is the problem?" I recollect them saying the problem was that the baby had no kidneys, was going to die because of that, and there would have to be a termination. I tried to pick up with them what would be reasons why baby would die: if no kidneys, no urine, therefore no fluid around baby, need that fluid for lung growth. That sequence would be dependent on no AF, and no urine. But I had seen for myself that there was urine in the bladder and fluid round the baby. I remember the confusion that this brought. I took time to go over what was there. I pointed out the presence of urine in Dr Twining's report. I said I felt it was by no means inevitable that the baby would die after birth if amniotic fluid persisted. It was clear that it was the death of the baby that dominated the distress that the family was suffering. Nevertheless I pointed out that whilst I was not certain about the outcome for the lungs, I was also not certain of the outlook for kidney function, as the amount of fluid around the baby was reduced. In general terms I would have dealt with the range of outcomes for renal function and said I cannot be sure where this baby lies in that range. Kidneys had been mentioned by Dr Twining and so it was inevitable that I would pick up on the kidneys.

153. Paragraph 17 of Professor James's witness statement described what was said about termination on 13 May 1999. After discussing his findings with the claimant, it was then his role as her clinician to inform her of the choices available to her. It was not part of his duty to make the choice for the claimant, rather to present options. On 13 May 1999 he raised the options with a view to discussing these further at the next meeting. He wanted to give the claimant time over the weekend to consider what she wanted to do. The options provided to the claimant on 13 May 1999 were either to continue with the pregnancy or to end the pregnancy. He was aware that the possibility of termination was raised earlier in the day by Dr Twining.
154. In evidence in chief, noting that the claimant was distressed throughout, Professor James said he was glad that Mr Brindley and Mr Harper were there: "You normally find that the information you give can be accurately recalled by at least one person later." He said he would have discussed termination by name, as that was mentioned as part of the counselling Dr Twining had provided. Professor James added:

I would have said, it is not a question of us telling you to have a termination, that is something you as a couple decide. I recall the claimant saying, I will have a termination because my baby will die. I recall telling her that was not a certainty on the basis of the evidence. It was clear that termination of pregnancy was not her intuitive or instinctive wish. This was a pregnancy which although unplanned was very much wanted. Distress was not just that there was a problem with the baby, it was that there was to be a termination, and that was not in keeping with her instincts. I said that there was no way that we would carry out termination without her agreement, and there were uncertainties that might influence our decision in due course. We came to an agreement that further information would assist prognosis. Hence based on my interpretation of her wishes we agreed for there to be a biopsy, and discussion with a further scan on the Monday.

155. The next aspect of 13 May 1999 dealt with in Professor James's witness statement was in paragraph 18, where he explained that he arranged for the claimant to return for karyotyping and measurement of AFV.
156. In examination in chief Professor James said that in order to explain the purpose of seeking further information he would have said that they could only see so much by a scan, that by having an invasive procedure they could rule out a number of conditions, and that the reason for further measurements of amniotic fluid was that if it disappeared in this crucial period pulmonary hypoplasia would be much likelier - but if it did not disappear then the likelihood of pulmonary hypoplasia would be much less.
157. Later in his witness statement, at paragraph 36, Professor James refuted the allegation that he failed to advise the claimant that there was a substantial risk of serious handicap. The claimant had been identified as having a fetus that had kidneys that were functioning sub-optimally as indicated by the reduced amniotic fluid volume. The implications of this were discussed with the claimant concentrating specifically on the probability of development of pulmonary hypoplasia ("pulmonary hypoplasia") and possible renal compromise in childhood.
158. Professor James said in paragraph 37 of his witness statement that when he saw the claimant on 13 May 1999 he was aware of the findings of Dr Twining. However, he did not completely agree with the diagnosis of bilateral renal agenesis given the fact that there was still amniotic fluid present and the only way this could be present was as a result of some functioning renal tissue in the fetus. This opinion was also supported by evidence on some of the ultrasound scans when the fetal bladder was seen. The bladder could only be seen when containing fluid (urine). The presence of urine indicated the presence of working renal (kidney) tissue. The scans noting the presence of a bladder were on 14 May 1999, 20 May 1999, 3 June 1999, 8 July 1999, 15 July 1999 and 28 July 1999.
159. Professor James added in paragraph 38 of his witness statement that the claimant opted to continue with the pregnancy following discussions he had had with her on 13 and 17 May 1999. Once the claimant had made her decision it would have been wrong to challenge or revisit her decision at subsequent visits. However, further discussion of the issues concerning the unborn child's health was indicated and at each occasion he saw the claimant after 17 May 1999 he continued to revisit and re-explore the issues of pulmonary hypoplasia and renal function with her.
160. The initial description by Professor James of what happened when he saw the claimant on 17 May 1999 was at paragraph 20 of his witness statement. The claimant attended the Pregnancy Assessment Centre on 17 May 1999 at which time he saw her. Gestation was noted to be 22 weeks + 3 days. An ultrasound scan carried out on 17 May 1999 showed an amniotic fluid index of 75mm. He discussed the implications of this again with the claimant. He explained that the presence of amniotic fluid suggested the baby was still producing urine but that the kidney function after birth was still difficult to predict. He also discussed the possibility of pulmonary hypoplasia developing. At the scan on 17 May 1999 no decrease in the amniotic fluid index was noted. His view of the pregnancy at this stage was less pessimistic than that of Dr Twining especially with respect to the development of pulmonary hypoplasia but still uncertain and guarded about kidney function and possible problems for the baby in the future. Discussions at this appointment focused on the options open to the claimant and formulating a plan of management depending on her decision. The options were to continue with or end the pregnancy. Whilst he could not remember when the decision to continue with the pregnancy was made, nor was anything documented in the records, he did remember that the claimant's decision was to continue the pregnancy. The fact that the pregnancy continued reflected her choice.
161. In paragraph 39 of his witness statement Professor James set out his assessment of the position after the consultation on 17 May 1999. The claimant opted to continue with the pregnancy following his discussions with her on 13 and 17 May 1999. Once the claimant had made her decision it would have been wrong to challenge or revisit her decision at subsequent visits. However, further discussion of the issues concerning the unborn child's health was indicated and at each occasion he saw the claimant after 17 May 1999 he continued to revisit and re-explore the issues of pulmonary hypoplasia and renal function with her.
162. Paragraph 43 of Professor James's witness statement said that he recalled providing clear information as to their findings and the implications of the findings. He presented the options to the claimant (continuing or ending the pregnancy) and she decided to continue with the pregnancy.
163. When describing the meeting of 17 May in his evidence in chief, Professor James said that the scan might have taken 15 to 20 minutes. The discussion might have taken up to half an hour, it certainly was not brief. He could not recall precisely who accompanied the claimant, there was always one member of family with her when he saw her.
164. At this stage he did not have the karyotype result. Statistically this was highly likely to be normal, and he proceeded on that basis on 17 May 1999.
165. On 17 May 1999, in the preceding 4 days there had not been a significant reduction in AFV, rather the reverse. Further the MPD were such that if they persisted to 25 weeks there would be a very low risk of pulmonary hypoplasia and neonatal death. He would have taken the claimant through the same issues he had raised on the Thursday: kidneys, AFV, and lung development. He would have given the best prognosis that was possible in the light of those matters, and ascertained the claimant's views in the light of that information with respect to termination of pregnancy. As to kidneys he would have stated the uncertainty of being able to predict the outcome, but would have said that there was clear evidence of kidney tissue being present. He would have explained that the basis for that view was that there was urine in the bladder, that amniotic fluid was measurable and that the volume was higher than had been on Thursday.
166. Professor James continued:

I'd have restated the uncertainty about where in the potential spectrum of renal function this baby would lie. I would never have given the impression that the kidneys were normal. Overall the advice was similar to that on the previous Thursday. That did not dominate the discussion. The clear factor dominating the discussion was whether the baby was going to die after birth. That focussed the discussion on pulmonary hypoplasia. I would have said that if amniotic fluid stays at these volumes to 25 weeks, the likelihood of the baby dying from pulmonary hypoplasia would be less than 10%. If amniotic fluid volumes remain the same beyond 25 weeks, the baby was likely to survive.

I always summarise the discussion, and we revisited the issue of termination. I recall very clearly that if there was a high chance of survival it was by no means the claimant's wish to have a termination. I gave her the two options of termination or no termination.

167. Professor James concluded his evidence in chief in relation to 17 May 1999 by affirming that the option of termination was put to the claimant. He would have used the same items for discussion as he had used on the Thursday previously, covering findings since the previous Thursday. The AFV measurements were higher. There was continued concern about kidney function but these higher measurements reinforced the case for presence of some kidney tissue. He would have emphasised uncertainty about kidney function. Because the issue of termination had caused distress the previous Thursday, he raised it again, and explored her views in the light of the new information available. They did not have the fetal karyotyping result, but this was not uncommon in early discussions in cases where problems were recognised, and he was not expecting an abnormal fetal karyotyping result. They discussed the case assuming that the fetal karyotyping result would be normal, exploring the claimant's wishes on the basis of the information they had. Again though both lung and kidney function were issues she was aware of, it was overwhelmingly lung function and whether the baby would survive or not which dominated her thinking. He recalled her pressing him about whether the baby would live or die. He could not be certain at that stage but recalled pointing out that if AFV remained at current levels for the next 3 to 4 weeks then the chances of pulmonary hypoplasia, and consequential neonatal death, would be very low.
168. I asked Professor James whether he used the term "pulmonary hypoplasia" in his discussions with the claimant. Professor James replied that he would have mentioned it, but got the message across by using the terms "lung growth", "lung size", and "lung development".
169. Professor James added that if the claimant had embarked on the route of termination, he would have explained that guidelines advise a staged process, involving fetocide, followed by a medical induction of miscarriage. The guidelines suggested fetocide after 21 weeks, the hospital used it after 20 weeks. His experience was that this information only made a significant impact on the decision in a minority of cases, the majority accepted that fetocide was part of the process.
170. He was asked whether he felt on 17 May 1999 that the claimant and whoever was accompanying her did not understand the discussion? The answer to this question was, "No."
171. Professor James added in paragraph 40 of his witness statement that following the meeting on 17 May 1999 he wrote to the claimant's GP. He informed Dr Khalique that they had discovered the presence of quite marked oligohydramnios though not complete absence of amniotic fluid.
172. Professor James recorded in paragraph 21 and 22 of his witness statement that the claimant was seen again in the Pregnancy Assessment Clinic on 20 May 1999. On this date the HCN recorded that the claimant was seen by Dr Lucy Kean, trainee registrar in Feto-Maternal Medicine. Dr Kean noted "AFI is increasing, normal Doppler. Active baby. Appears to be improving". The claimant was seen again on 27 May 1999 and a further scan carried out. Again, the claimant was seen by Dr Lucy Kean who noted: "Good pool of amniotic fluid around baby's head. Baby active (actual AFI is slightly reduced again but very difficult to measure when beech). Good growth".
173. At paragraph 23 of his witness statement Professor James described how he next saw the claimant on 3 June 1999 at which time she was 25 weeks' gestation. A further scan was carried out and it was noted that the amniotic fluid had further reduced with the amniotic fluid index being 21mm with a maximum pool depth of 18mm. The previous two scans on 20 May 1999 and 27 May 1999 had shown amniotic fluid indices of 91mm and 33mm respectively with maximum pool depths of 33mm and 20mm respectively. He again discussed these findings with the claimant, including the possible development of and potential implications of pulmonary hypoplasia, and the possibility of significant renal problems after delivery. Her decision was still to carry on with the pregnancy.
174. When describing the discussions of 3 June 1999 in his evidence in chief, Professor James said that it would be wrong to challenge or revisit her decision:

The aim of counselling is to try to discover the patient's wishes as to termination, and our views as professionals should not play any part in that. Therefore on 3 June 1999, even though the prognosis for the kidneys was pointing more to the worse end of the spectrum than previously because of the deterioration in AFV, the fact that the claimant took reassurance that pulmonary hypoplasia and hence neo natal death was unlikely, it was that which formed the basis for her decision to maintain the pregnancy. The point there is that while I had a more pessimistic view of the outcome for the kidneys, and made sure she was aware of that, it was not my role to revisit or challenge her decision. This was as well as making the claimant aware of my prognosis for the lungs.

175. Referring to the HCN, Professor James said that the words "but amniotic fluid present" reflected the fact that their discussion concentrated on lung growth and survival which was dominating the Claimant's thinking. He went through with the claimant the reduction in AFV. He reviewed the measurements of AFV over the preceding visits, and identified the change of apparent rising values, and then the fall by the time 3 June 1999 arrived. He discussed with her the evidence he considered available in the literature about what this meant for the likelihood of dying from pulmonary hypoplasia. He would have pointed out that she was now 25 weeks, and the best evidence that he relied on suggested that if you had an MPD of 2 or greater, then lethal pulmonary hypoplasia was extremely unlikely to develop. The other evidence from the literature said that provided MPD was above 10 at 25 weeks, or maintained at 10 up to 25 weeks then the likelihood of lethal pulmonary hypoplasia was very low, he would have said no more than 10%.
176. In terms of renal function, he would have explained that this drop of amniotic fluid certainly pointed to a worse outlook for the baby's kidney function. But again he would have been uncertain as to the precise severity of any problems. He would have made sure she understood that. He had discussed the type of treatment previously, and did not recall whether on 3 June 1999 he mentioned dialysis or renal transplant. At no stage did he have the impression that the claimant did not understand:

I certainly remember her taking this on board, she remained anxious about the outlook for the baby as we were uncertain about kidney function for the rest of the pregnancy.

177. Professor James said that he would not have said anything on 13 or 17 May, or on 3 June 1999 to suggest that a mental disability was part of this case.
178. His examination in chief then turned to the length of the consultation on 3 June 1999. He said his guess was that it lasted 15 to 30 minutes. He did not remember how long it took, but he remembered what they discussed:

I revisited the discussion we had had on 17 May 1999, and reminded the claimant that her wish then was to continue with pregnancy, with the issue of AFV being the indicator that would give her reassurance for continuing the pregnancy. We explored her reaction to the fact that the AFVs, the MPDs in particular, were above what I considered critical levels up to 25 weeks that day. I explored with the claimant her wishes, and in the light of the positive prediction I was making for the baby's survival she chose to continue with the pregnancy.

179. Professor James was asked whether the claimant was given the option? He replied that he would not have cross-examined her or challenged her, but picked up the reasons of 17 May 1999, and checked she was happy to continue with the pregnancy in the light of the normal predictive values for MPD.
180. Paragraphs 24 to 34 of Professor James's witness statement described the management of the pregnancy after 3 June 1999.
181. As to the Mother and Baby Club, Professor James said at paragraph 42 of his witness statement that underlining his concerns for the condition of the unborn child, this pregnancy was discussed at the weekly meetings of the Fetomaternal Medicine Team, the Pregnancy Assessment Centre staff and the paediatricians. These meetings were held on Monday lunchtimes and were referred to in his exhibit "DKJ4" showing the claimant's name on the list of patients discussed on 17 and 24 May 1999. These meetings were used as a forum to discuss any problem cases and the claimant fell into that category for the reasons explained above. The purpose of these discussions was to make the paediatricians aware of the potential baby problems that were due for delivery in the future. The claimant would have been mentioned every week with an update being given.

Cross-examination of Professor James

182. The cross-examination of Professor James began by taking him through a number of technical points. These concerned matters such as the definition of oligohydramnios and the measurement of amniotic fluid. In the event the agreement of the experts described earlier in this judgment meant that these technical points had no impact on my findings in the present case. Accordingly I do not set them out here.
183. Turning to the three consultations he had had with the claimant, Professor James accepted that the records he made on 17 May and 3 June 1999 were substandard. He disputed that the record he made for 13 May 1999 was substandard. His notes that day were not prolific, but they contained all the key points as to what was found, what was covered and what the plan was. It was not a note of the discussion. It did not record possible prognosis, nor any discussion of whether the pregnancy should continue. At a later stage in the cross-examination Professor James said it was not substandard for him to fail to enter on the hospital records what happened at the consultation on 13 May 1999, given that he was expecting to see the claimant soon.
184. Given that on 13 May 1999 further investigations were required, it was suggested it followed that it was not appropriate at that stage to advise on prognosis. In answer Professor James referred to deficiencies in the original defence. Professor James explained that they had arisen because he did not contribute the whole of the defence, and because he had not at that stage had possession of the HCN. Later in the cross-examination he said that at time of the original defence, he had assumed that he first saw the claimant on 17 May 1999, 4 days after Dr Twining's scan. He accepted that this was wrong, but denied that it suggested he did not have a clear recollection of events. He did not recall the dates and times with any great precision when this case came to light. He did remember the claimant's first consultation with him, she being very distressed on the basis of Dr Twining's report. He assumed at the time of the original defence that the claimant saw Dr Ramsay before seeing him, something which he agreed could not withstand logical analysis. He had not recollected that he had advised fetal karyotyping. Professor James commented that without records he would not have known that he saw the claimant on 17 May or 3 June 1999: "One needs prompts."
185. Professor James said he now had a clear recollection, even though at the time of the defence he had not recollected advising the claimant that she undergo biopsy for fetal karyotyping - it was a crucial investigation, but he had not had a high expectation that the fetal karyotyping would be abnormal. He agreed that telling a mother that her child may have an abnormality was one of the most difficult decisions, and that his entries were substandard.
186. As to his caseload in 1999, Professor James said that about 750 to 800 patients were under his care at any one time. In the course of a year, he would see more than 750 patients, some on several occasions. About 5 to 10% involved actual or suspected fetal abnormalities. Those with difficulties were referred to his clinic, while the balance of the 5 to 10% included those with previous abnormalities, or problems with the mother's health or baby's health, twins, and risks of premature delivery. It was not uncommon for patients to be distressed, but in the claimant's case he recollected her being so distressed as to be inconsolable. There was difficulty in starting the conversation and establishing a regular rapport with her.
187. Professor James explained that the consultation with him on 13 May 1999 was not a regular appointment. After Mr Harper called, he had fitted the claimant in at 2 p.m. His diary showed that he had cancelled other appointments. He agreed that he could not be expected to remember the detail of the conversation on 13 May 1999, adding in answer to this and subsequent points:

The records prompt my memory. One remembers certain patients. One does not recall precise detail. I remember very clearly key things about the claimant's pregnancy. Extreme distress. Very unusually, Dr Twining and I were at variance in our diagnosis. That led to a conflict which it was very difficult to put over to the claimant. I recall discussing this case with Dr Twining, but not before seeing the claimant.

Other things [apart from the reason for her distress] stick in my memory. The case necessitated a clear discussion with the Brindley family about pulmonary development and kidney development and the separation of those two. For the rest of the pregnancy whether the baby would die was clearly on the claimant's mind, and the kidney problem was not so much of a concern to her. It was a concern to me, and to her, but to her not as greatly as whether baby survived. The claimant was dependent on me as to what the risks of these problems were.

On 13 May 1999 the Claimant, although distressed, did manage to participate. It was difficult to explain complicated issues to her, and difficult to decide about termination. I wrote down "suggest..." with a view to discussing at a later date. I accept I did not write down that I suggested there be further discussion. pulmonary hypoplasia is a complicated concept. As to likelihoods depending on AFV levels, she was concerned that the baby would die. I could not be sure that she had taken things on board.

188. It was suggested to Professor James that on 13 May 1999 he merely sought to reassure her pending further inquiry and a time when she was less upset, and things could be explained. He recognised that the family's evidence suggested a chasm between their account and his. His evidence was that he did cover these things. He commented that it was difficult to suggest that he saw someone so distressed as a result of what Dr Twining said without touching on this at all, for the family to leave hospital without discussion of those points and feel there was a way forward.
189. As to Mr Harper's account of Professor James saying that he saw tubes, Professor James thought Mr Harper meant the renal artery. Professor James said he did not use the word "tubes". He did not think it was correct that he had told the family that they should be reassured by what he had seen. His first task was to impart information, conveying why he thought the situation was at variance with what Dr Twining thought. If one used the word reassure, it would be to say that it was not necessarily a certainty that baby would die. He did not tell them Dr Twining's advice was wrong, he said he disagreed with Dr Twining's findings, but in no way did he reassure them. He had not put off discussion for a subsequent day. Certainly the claimant was not in a fit state to take a rational decision on termination, and that was postponed.
190. Turning to the consultation on 17 May 1999, Professor James said he did not have the fetal karyotyping on that day, but had fixed an appointment for that day as it was the next scheduled clinic session and he thought it appropriate to see the claimant at the next opportunity. He had a distinct recollection of the consultation on that day, differentiating it from 13 May 1999 because the claimant was less distressed and it was possible to have a rational discussion, and because the information available allowed him to widen the discussion on AFV. At the time of the original defence he had not recalled two separate meetings. Having seen the HCN he had a specific recollection of 17 May 1999. The record on the HCN was substandard for 17 May 1999, but enabled him to recollect more fully.
191. Professor James did not recollect speaking to Dr Twining before 17 May 1999. He might have done so at the mother and baby club prior to 3 June 1999.
192. The cross-examination then focused on what had been said by Professor James in paragraph 20 of his witness statement. Professor James repeated that he knew Dr Twining had said the baby would die at birth, and that this, combined with the lack of kidneys and pulmonary hypoplasia, had caused great distress. It underpinned what the Brindley family had said to him. It was more appropriate to take the information from the patient, it was the message the family got from that conversation was all important. The basis for paragraph 20 was what the claimant had said that Dr Twining said about lung development. He was not saying that she used the term pulmonary hypoplasia. He was not sure if she understood the mechanism, and revisited it to make sure.
193. Asked whether he said that the claimant's decision to continue with the pregnancy was made on 17 May 1999, Professor James replied that the decision was, if there was a possibility that the baby would not die, then she did not wish a termination, understanding that the confidence with which he could make predictions about lung development at 22 weeks was not as strong as at 25 weeks. He could not recall her precise words. He was clear that the decision she came to in that meeting was to continue with the pregnancy.
194. As to the sentence in paragraph 20 which read, "I cannot remember when the decision to continue … was made", Professor James said that he knew that on 17 May 1999 a decision was made to continue the pregnancy beyond that day. That was not seen as an ultimately final decision, because the issue about which she was most concerned was not resolved at that stage. He did not know what he meant when he constructed that sentence. The decision on 17 May 1999 was a decision to be reviewed in the light of developments.
195. Professor James said that at the meeting on 3 June 1999 it was not appropriate to challenge the claimant's decision of 17 May 1999 in the light of the new information about fluid volume. He agreed that patients should have an opportunity to discuss the matter with their family, but was not sure that their GP would have sufficient information to contribute to the discussion.
196. It was accepted by Professor James that he and the claimant's GP had shared care of the claimant, and that the letter he wrote to the GP on 19 May 1999 did not refer to the sort of detailed discussion he had described, nor to a decision to continue with the pregnancy. Initially Professor James said that in most cases of complex fetal or maternal problems, GPs were content for the specialist to take over care of patient, and it was not customary to give detailed information about that to the GP. On reflection he accepted that the letter was substandard, but added that the issues he had to discuss with the claimant were in danger of leading to great confusion, and it might be that to include a GP who has no knowledge of a rare condition would add to the confusion.
197. While one reading of the letter was that termination had not been considered, Professor James said that the discussion did take place, and it had been impossible to avoid that discussion given what had happened. When the scan on 3 June 1999 was contrasted with earlier scans it was seen that the AFV was now falling rather than rising. There was a concern also as to pulmonary hypoplasia, but as the measurement had only in the last week fallen below 2 cm, he was cautiously optimistic about lung development.
198. After a discussion of the technical reasons for his conclusions, Professor James said he had a distinct and separate memory of the consultation on 3 June 1999. It was not mentioned in the defence. Professor James recalled, however, that there had been a dramatic change which had had an effect on the prognosis for kidney function. Asked if he was saying that he revisited termination, Professor James replied

pulmonary hypoplasia was visited again and I explained my feeling for that was good. I tried to convey my anxiety about renal function, and the persisting uncertainty about what that outcome would be. I would have said, "Your decision when we last met was to carry on with the pregnancy, are you still content to carry on with the pregnancy?" That decision would be dependent on what I told her about pulmonary hypoplasia and renal function. If I failed to communicate the drop in AFVs correctly she would not have known and would not have understood the basis for decision.

199. Professor James accepted that there had been no letter to the GP saying that a final decision had been taken on 3 June 1999, and that there was a yawning gap between what the claimant said and what he said. He maintained that he knew these discussions took place. He had not "over-remembered" events by reference to what his practice would have been - the events of the last days, especially hearing the evidence of the claimant and her family had helped clarify for him the feeling of distress of the claimant on that day. He accepted that his working party's guidelines at paragraph 3.7 had failed in that 6 years after the event the Brindley family had no recall. Contrary to what they had said, however, there were concerns about this baby, the claimant had frequent hospital attendances, and it had not been managed as a normal pregnancy. He accepted that in September 1999, having received a letter from Dr Nevard saying that the claimant and her husband sought written information from him as they did not feel up to a meeting, it had been substandard for him to reply suggesting that they come for a chat.

Re-examination of Professor James

200. Re-examination covered a number of matters, of which I need only mention that Professor James revisited the question of what the Brindley family understood to have been Dr Twining's views about pulmonary hypoplasia. He said that he could not recall if they said he said there was likely to be some problem with the baby's lungs.
201. In Professor James's replies to questions from me he explained that when there had been a discussion of termination his practice was to document a brief summary of what took place, and he had no idea why he did not do that in this case. When reminded of paragraph 7 of Mr Harper's witness statement, he said he was quite likely to have said that Dr Twining should not have recommended abortion without his involvement.

Professor Mark Kilby's evidence

202. The final witness was Professor Kilby, called to give expert evidence on behalf of the claimant. However, in the light of the agreement between experts mentioned earlier, the evidence which he gave does not need to be set out here, and there was no need for me to hear evidence from Mr Walkinshaw.

Closing submissions

203. Mr Horne, in his closing submission on behalf of the defendant, identified the two issues for determination. These were whether:

(a) Professor James breached the duty of care he owed Mrs Brindley by failing to give any advice about (i) the risks of pulmonary hypoplasia; (ii) the uncertain renal prognosis on the 13 May, 17 May and 3 June 1999; and (iii) the existence of the option of terminating the pregnancy, on the 17 May and 3 June 1999 (breach of duty);

(b) if Mrs Brindley did not receive the advice that Professor James claims she did on each occasion, she would have opted for termination if she had received such advice on the 17 May or 3 June 1999 (causation).

204. On the question of breach of duty, Mr Horne began with the consultation with Dr Twining on 13 May 1999. He said that the Brindleys had left this consultation with a faulty impression of Dr Twining's advice, and if they misconstrued his advice they were likely to have misconstrued Professor James's advice. They had latched on to, and misunderstood, banner headlines – in the case of Dr Twining, that there was gloom for the baby's prognosis, and in the case of Professor James, that he was more optimistic. This led them to misunderstand the advice – in particular, in the case of Dr Twining, to believe that he said the claimant "needed" a termination, and needed it urgently. The position was that a mother always had a choice, and could choose not to terminate. Moreover, there was no need for an urgent decision – a late termination would have been available for bilateral renal agenesis.
205. Turning to the consultation with Professor James on 13 May 1999, there were discrepancies between the various family accounts of the format of this consultation, particularly over when Professor James became involved, the degree of communication in the scan room, and whether there was discussion in a separate counselling room after the scan. It was notable that Mr Brindley accepted that there was some mention of kidney tissue being present because of the presence of amniotic fluid – something neither the claimant nor Mr Harper remembered.
206. Key points made by Mr Horne were set out at paragraph 2.2(e) to (n) of his written submissions:

(e) It did not seem to be in issue that (in common with the 17 May and 3 June 1999), there was a lot of time for discussion.

(f) If the family account was correct, the consultation would have been a quick one. Consequently, their account simply did not explain how a lengthy consultation could have been filled.

(g) This point applied equally to the 17 May and 3 June 1999.

(h) Mrs Brindley's distress throughout the consultation was difficult to reconcile with the gist of her evidence that she was wholly reassured by what Professor James had said.

(i) In essence, Mrs Brindley, her husband and father all claim to have left with the understanding that there was nothing wrong with the baby.

(j) Consequently, it was inherent in the family evidence that Professor James and his team had no major concerns over the continuation of the pregnancy. This was utterly inconsistent with the records and management of the pregnancy.

(k) Also inherent in the family evidence was the fact that, despite Mrs Brindley's obvious distress, he did not find out why she was so distressed and failed, despite knowing that Dr Twining had diagnosed renal agenesis and its terrible prognosis, and the management options open during pregnancy (termination), to discuss any of (1) renal function; (2) prognosis; or (3) termination.

(l) Quite apart from his recollection that he did so, it would be wholly unrealistic to suppose that Professor James did not discuss the basis for Mrs Brindley's distress. This could only have been done by exploring what Dr Twining had said.

(m) It would be integral to any explanation of why he disagreed with Dr Twining's diagnosis for Professor James to explain (1) why he felt the diagnosis was wrong; (2) what he felt the diagnosis was; (3) what the fact that having poorly developed kidneys would mean; (4) why he felt that lung development – and hence prognosis – could be better than with renal agenesis. The consultation cannot have proceeded in any other way.

(n) Similarly, since the need for termination was a critical component of Mrs Brindley's distress, it was inconceivable that Professor James did not cover this issue.

207. Mr Horne then turned to Professor James's explanation of the inaccuracies in the original defence. His explanation of his memory being jogged by seeing the hand carried notes, and hearing the Brindleys give evidence, was cogent.
208. As to the failure to make adequate notes of discussions, Mr Horne accepted that this was regrettable. However, he said it was a wholly different proposition from failing to hold those discussions at all.
209. As to the claimant's evidence about the consultation on 13 May 1999, it was easy to see how a prognosis significantly less bleak than Dr Twining's could now be interpreted as reassurance. It was also easy to see how dealing with termination in a balanced and non-judgmental way – albeit briefly and suggesting deferral of a decision until after further tests – could now be interpreted as indicating that a termination was not required.
210. Mr Horne then turned to Dr Ramsay's evidence about what she had said to the claimant on 14 May 1999. Integral to Dr Ramsay's explanation of the procedure was the fact that (a) there was poor amniotic fluid, and (b) doubts had been raised over the normality of the baby's kidneys. The fact that Mrs Brindley did not recall this explanation suggested that it was not significant to her. The only circumstances in which it would not be significant would be if the information was not surprising – consistent with the defence account, but not the claimant's.
211. As to the consultation on 17 May 1999, the family had no recollection of it. The reason for that, suggested Mr Horne, was that the Brindleys had merged their memory of 13 and 17 May 1999. It was entirely understandable how that would happen – they took away from those consultations that termination of the pregnancy was not something that was needed. The submission for the defendant was that the Brindleys latched on to this favourable prognosis, and now fail to remember the gist of the other aspects discussed.
212. It was equally the case that the family did not remember the consultation of 3 June 1999. On that occasion the bleaker renal advice was balanced by more positive advice on pulmonary hypoplasia. Professor James did not suggest that mortality was associated with the bleak advice on renal function – the prospects of the baby's survival remained very good, so the worsening advice on renal function would not influence the claimant's decision and would not stick in her mind.
213. In relation to other monitoring appointments, Mrs Brindley had accepted in cross-examination that she appreciated that the amniotic fluid levels were falling. It was of note that Mr Brindley did not remember her discussing this aspect of her pregnancy with him. Mrs Brindley in cross examination had gone too far when she said she never saw a doctor at all, for it was clear from the records that she saw a doctor, usually Professor James, on every visit. The fact that Mrs Brindley and Mr Harper said they asked questions about whether the kidneys could be seen on the scan was, said Mr Horne, inconsistent with their evidence that they thought there was nothing to worry about. The statement by Mrs Brindley to Mrs Bradley that she could not cope with a disabled child was consistent with the risk of disability having been explained, and the mother having a hope that the child would not be disabled.
214. On the issue of causation, Mr Horne noted that the Brindleys said they would have terminated the pregnancy because they could not have coped with a disabled child. His first point on this was that these answers were remarkably similar, sounding as if they were "scripted". When cross-examined, Mrs Brindley had given several answers, including that she would have opted for a termination because "the baby was poorly", or that "if there had been any problems" she would not have been able to cope. Mr Brindley had simply refused to engage with the cross examination on this point.
215. Mr Horne's second point on causation was that the family's views today were coloured by the unpredictable severity of Owen's condition. Owen's difficulties, branchio-oto-renal syndrome with mental retardation, are said to be severe. It was wholly unrealistic to suppose that the severity of the disabilities did not influence the answers the Brindleys gave on the 'causation point'.
216. The third point made by Mr Horne on causation was that the family's evidence was not directed towards the advice that they would have been given by Professor James. By 17 May 1999 Professor James either gave (or would have given) a prognosis to the effect that (1) the baby was highly likely to survive without lung difficulties; (2) there was a wide spectrum of potential renal outcomes, ranging from normal to severe, where complex treatment could be required. This advice would have been relatively optimistic compared with what had been given up to that point. The analysis in relation to 3 June 1999 was very similar, save that the renal prognosis had worsened to the extent that a favourable outcome was less likely but not out of the question.
217. In this context, Professor James was clear throughout that what troubled Mrs Brindley was the risk of the baby dying, rather than the risk of renal disability. Support for this view could be found in Mr Brindley's crossexamination where he accepted that (at least at the time of 13 May 1999) what Mrs Brindley was really troubled about was the baby's survival.
218. I shall describe and discuss the closing submissions on behalf of the claimant in the next section of this judgment.

Analysis of the claimant's case

219. Mr Pittaway's closing submissions sought to set the case in context: where fetal abnormality was suspected it was important to use great care in counselling. The reason was obvious: there was no more difficult decision, when told of fetal abnormality, than the decision whether to terminate. The Brindleys coming away with the impression that "all was well" showed, he said, that the system did not work in this case, and that they did not understand the advice given to them by Professor James on three occasions.
220. At the outset it seems to me that the idea that "all was well", this being what the Brindleys now assert that they were told, is plainly inconsistent with the undisputed evidence that later in the pregnancy they were asking whether the kidney could be seen on scans. It is also difficult to square with the claimant having raised a concern with Mrs Bradley that she did not think she could cope with a disabled child – something which points strongly to a recognition on the claimant's part that there was a risk of disability. As I heard the oral evidence, and while reviewing it when preparing this judgment, I have been anxiously trying to understand how the Brindleys could have thought that "all was well".
221. Mr Pittaway said that the Brindleys's recollection was clear on one point – they were not advised they had options of continuing or terminating the pregnancy. On the other hand the evidence of Professor James, relying entirely on his own recollection of those events, required to be carefully sifted for what was genuine recollection and what is a retrospective justification based on his usual practice. While it was said on his behalf to be inconceivable that a clinician of his experience would not have counselled the family fully, equally it was inconceivable that he would have failed to record his discussions at all on 3 separate occasions. In this regard reference was made to the decision of Morland J in Enright v Kwun [2003] EWHC 1000 (QB). At paragraph 41 Morland J held that although it would appear improbable that the three professionals in that case would separately negligently fail to counsel Mrs Enright, it was "more improbable that none of the three negligently omitted to record giving her counselling and her declining amniocentesis if in fact that had occurred."
222. In the present case I must perform a similar exercise, for I must decide between Professor James's account of events, which involves substandard record keeping, and the Brindleys' account, which involves substandard counselling. Either of these lapses from good standards would, in the ordinary course of events, have been regarded as improbable because they involve departure from guidelines which Professor James had himself been responsible for drafting. It does not seem to me appropriate, however, to start with any assumption that one or other type of negligence is inherently more likely, and I do not believe that Morland J was advocating such an approach. The course which seems to me to be right is to analyse the evidence that I have heard in order to decide which course of events is the more probable.
223. Mr Pittaway also relied on there having been an absence of communication between Dr Twining and Professor James and other members of the medical staff. He referred to Professor James having accepted in cross-examination that accepting that Mr Harper was likely to be right as to what Professor James said about Dr Twining. Neither of these points seems to me to take matters much further. When what Professor James had said about Dr Twining is seen in context there was nothing inappropriate about it. The fact that he disagreed with Dr Twining did not mean that Professor James was under any duty to raise it with him specifically. As to other members of the medical staff, they would be aware from the course of events that - after the relevant consultations between the Brindley family and Professor James - there was not going to be a termination. It does not seem to me that Professor James was under a duty to communicate this, or the reasons for it, expressly to other members of the medical staff.
224. As to the differing accounts of the session with Dr Twining, Mr Pittaway noted that while there was an issue as to whether Dr Twining said a termination was "needed", Dr Twining very fairly accepted the Brindleys might have been left with that impression. I accept this. While I do not believe that Dr Twining in fact said that there was an urgent need – or any other kind of need – for a termination, the message that the Brindleys received was that it was likely that their baby would die shortly after being born. I have no doubt that in the Brindleys' minds that would mean that a termination was needed.
225. Mr Pittaway said that the divergence of recollection between the Brindley family and Professor James as to the events later on 13th May 1999 lay in the content of the discussions rather than the sequence of events. His written submission said:

The overwhelming impression they obtained was the pregnancy should continue with monitoring. In itself that is not an inaccurate recollection of what Professor James says he told Mrs Brindley at that meeting. The heart of the issue lies in the extent to which he went beyond that on 13th May 1999.

226. I do not accept that an impression that the pregnancy "should" continue would be an accurate reflection of what Professor James says he told the family on 13 May 1999. Professor James had noted renal dysgenesis. The idea that Professor James should have made such a diagnosis and not explained to the family what it meant seems to me to be unreal. That diagnosis of itself raised a question as to whether there should be a termination. Moreover, the family had come from Dr Twining with the impression that their baby would die shortly after being born, with the consequence that a termination was needed. In these circumstances I am sure that termination must have been discussed by Professor James. I am equally sure that what he told them led them to consider that the pregnancy should continue with monitoring. It was understandable for the family to have jumped from Dr Twining's assessment that it was likely that the baby would die shortly after birth to their own conclusion that in those circumstances a termination was needed. Having done that, it seems to me likely that the family similarly jumped from Professor James's assessment to their own conclusion that in those circumstances a termination was not needed. Once Professor James had told them that it was not clear that the baby would die shortly after birth, the family's own belief that in such circumstances a need for termination had not arisen in my view led them in their own minds to proceed on the footing that Professor James was telling them that the pregnancy should continue. In effect, as Mr Horne submitted, they were latching on to the headline of the advice.
227. It was stressed by Mr Pittaway that none of the family remember Professor James giving a detailed explanation of problems associated with lung development or future renal function. This seems to me readily explicable if, as Professor James described in his evidence, the key factor for the family was whether or not the baby would survive. In this regard too what the family took away was the headline: Professor James was not telling them that the baby would die shortly after birth. It was clear to the family that Professor James would nevertheless need to review the position in the light of the biopsy and further scans. On the footing that their focus was on the baby's chances of survival, it was natural for the family not to have any recollection of the detailed reasoning of Professor James: from their point of view, this was complicated information which they did not need.
228. It was submitted that because of the claimant's distress it was unlikely that Professor James would have gone into detail – in the aftermath of the stark advice from Dr Twining, he was unlikely to have gone beyond saying, "Wait and see". I do not accept this. First, reasons would have to be given for disagreeing with Dr Twining. Second, both Mr Brindley and Mr Harper were present, and while there was undoubtedly cause for concern as to whether the claimant could take in Professor James's advice, there was no reason to think that Mr Brindley and Mr Harper would be unable to do so.
229. At this stage the claimant's submissions turned to examination of reasons why it could properly be said that Professor James had "over-remembered" events. The points relied on were broadly those put to him in cross-examination. They arise not only in relation to 13 May 1999 but also in relation to 17 May and 3 June 1999. Essentially, said Mr Pittaway, what Professor James had done in oral evidence was to give a textbook account of what he said. In my view this assessment did not reflect the detailed answers given by Professor James in cross-examination. It must be right that at the time of the original defence his memory was less than good as to the sequence of events. However, the notes which he was now able to point to backed up his general recollection at that time as to the content of discussion. Moreover, having carefully observed him give evidence under detailed cross-examination, I noted that on those occasions when he was speaking of a specific recollection his manner was different, and more confident, from his manner on those occasions when he said, or it was otherwise clear, that he was trying to reconstruct events. I recognise, and guard against, the danger that during the preparation for and conduct of a trial a witness may convince himself that he must have done the right thing. There was, however, nothing implausible about Professor James having his memory jogged both by the hand-carried notes and watching and listening to the family give evidence.
230. As to 17 May and 3 June 1999, I believe the fundamental point to be the clear recollection by Professor James that issues of whether the baby survived or not dominated the family's thinking. This is consistent with Mr Harper's answer set out at paragraph 81 above. The family knew that Professor James thought the baby would survive. In that sense the advice he was giving them was that "all was well" and did not lead them to want to terminate the pregnancy. So long as the advice is understood in that sense, it was consistent with it that the family would ask whether kidneys could be seen on scans, for they knew that the baby did not have proper kidneys and there was an associated risk of renal problems. What I believe happened thereafter was that the claimant did indeed become concerned about the extent of disability. When she expressed concern to Mrs Bradley she was told to raise her concerns with the doctors. She did not do so. Instead, as it seems to me, in their own minds the Brindley family have latched on to the perceived message that "all was well" – glossing over the fact that any such message related only to the baby's chances of survival, and not to the danger of disability.
231. I have given anxious thought to the factors specifically relied upon by Mr Pittaway as supporting the Brindleys' recollection of events. In between the consultations of 17 May and 3 June 1999 there was the letter to the GP. That letter could and should have contained more detail, but it is not inconsistent with Professor James's account of events. It said that the matter would be kept under review, but it was common ground that the matter would need close review during the period after 17 May. It did not say that the claimant had been told she had the option to terminate the pregnancy, but it did not need to say this. The strongest point is the lack of any note of the discussions which Professor James says took place. Looking at the notes made by Professor James, however, it seems to me that they were extremely sparse. Even on the claimant's account, there was much that he did not record. A failure to record the discussions, while serious, is not – when contrasted in this case with the evidence that such discussions did and must have taken place – so implausible as to lead me to conclude that the Brindley family's account of events is correct.
232. A further point relied on by Mr Pittaway concerned the exchange of letters between Dr Nevard and Professor James after Owen was born. This was said to be illustrative of an inability to communicate with patients effectively. Professor James accepted in cross-examination that his reply was substandard practice. This does not in my view offer any reliable indication one way or the other as to the nature of the counselling that Professor James had given on the crucial dates.
233. Thus on analysis I conclude that the arguments in support of the claimant's version of events are not well founded. She has not satisfied me on the balance of probability that there was any failure by Professor James to raise those matters which he ought to have raised. Indeed, on the balance of probability I consider that the account of events given by Professor James is likely to be correct.
234. In these circumstances the issue of causation does not arise. For completeness I shall deal with it shortly. The claimant said that if Professor James had properly advised her that there was a substantial risk that her child, if it were born, would be seriously handicapped, then she would have requested termination of her pregnancy. It was clear that after she had the consultation with Dr Twining she had been prepared to accept termination. She said in evidence I wouldn't have continued if I had known Owen was poorly and I would have regarded a risk of a kidney condition as a reason to terminate. She told Mrs Bradley in the latter part of her pregnancy that she could not cope with disabled child. Mr and Mrs Brindley told Dr Nevard on 7th August 1999, 3 days after Owen's birth, that they would have opted for termination had they known of his disability. This was at a time when it was not known that Owen suffered from severe mental disability.
235. For these purposes I must assume that Professor James did not advise in May and June that there was a substantial risk of serious disability, but should, at least, have given the advice which he says he did in fact give. I do not think that the termination in 1991 assists – that was in very different circumstances. Equally the circumstances envisaged by Dr Twining were crucially different from those envisaged by Professor James. So far as both lungs and kidneys were concerned, if Professor James had given the advice he says he gave I see no reason to doubt that the family's response in May would have been that they would wait until June before taking a decision. In June Professor James would have been able to give positive advice on the lungs. Thus there is no reason to think that potential lung problems would have led the family to seek a termination. Turning to the kidneys, if in June the Brindleys had indeed felt the sort of reservations about caring for a disabled child which they later expressed, I would have expected them to have said something about this to someone at the hospital in May or June. They did not. The course of events seems to me to point clearly to concerns arising only later in the pregnancy. In addition, there was clear evidence that Owen was very much a wanted child. Accordingly I am not satisfied on a balance of probability that if proper advice had been given the claimant would have proceeded to a termination. I add that in reaching this conclusion I proceed on the footing that the question of admissibility identified at paragraph 29 above is resolved in favour of the claimant.

Conclusion

236. For the reasons given above the claimant's allegations of negligence are incorrect. I hold that the defendant is not liable to the claimant.
237. I will hear counsel, if necessary, on the terms of any consequential orders.