Privy Council upholds appeal against doctor found negligent in birth injury case

THE Privy Council has upheld a Court of Appeal ruling that found an obstetrician negligent for failing to ensure foetal heart rate monitoring during a delayed emergency caesarean section that led to catastrophic brain injuries at birth.

The case arose from a claim brought by Nicole Singh, mother of Christopher Singh, over injuries Christopher suffered during delivery by emergency caesarean section at St Augustine Private Hospital. Christopher was born at 11.13 am on September 9, 2012, after prolonged oxygen deprivation and was later diagnosed with severe cerebral palsy, leaving him unable to walk, talk, sit, or stand independently. He continues to suffer from severe physical impairment and is non-verbal.

At trial, Justice Betsy Ann Lambert Peterson found the hospital negligent for systemic failures that caused delays in carrying out the caesarean section, including late contact with an anaesthetist and the absence of a theatre assistant. Those delays were found to have caused Christopher’s injuries. The hospital’s appeal was dismissed, and liability against it was not in dispute before the Privy Council.

The trial judge, however, dismissed the claim against Dr Prakashbhan Persad, a consultant at the hospital, holding that his conduct met the required standard of care. In July 2024, the Court of Appeal overturned that finding, concluding that Dr Persad bore responsibility for failing to ensure monitoring of the foetal heart rate during the roughly 50 minutes Mrs Singh waited in the operating theatre before delivery. The Appeal Court held that, without such monitoring, Dr Persad and the anaesthetist were unaware that the foetus was in distress and did not act with appropriate urgency.

In a detailed judgment on January 19, the Privy Council agreed with the Court of Appeal that Persad’s role was “overarching and supervisory” once an emergency caesarean section was contemplated. The judgment noted that while midwives ordinarily carry out foetal heart rate monitoring, it was Dr Persad’s responsibility to ensure he had the information necessary to assess the foetus’s condition and direct the team accordingly.

“In the board’s judgment, the Court of Appeal was right to hold that Dr Persad was negligent in failing to ensure that he kept himself and his team aware of the FHR (foetal heart rate), which would have indicated the distressed condition of the foetus during the crucial period of the second stage of labour in the operating theatre.

“Although no doubt it is the midwives who would actually have carried out the FHR monitoring in the operating theatre, it was Dr Persad’s responsibility to ensure that he had the information he needed to be able to assess the condition of the foetus.

“He should have been aware throughout of whether or not the foetus was in distress so that he could act accordingly. It is not a matter of holding him responsible for the failings of the midwives or of the hospital.

“If Dr Persad had asked the midwives in the operating theatre to start measuring Christopher’s heart rate whilst everyone was waiting for the theatre assistant to arrive or whilst Dr Gangadhararao Narra (anaesthetist) was attempting to insert the spinal anaesthetic needle, they could and would have done so.

“That would have made apparent the distress Christopher was experiencing in utero, the C-section could have been carried out immediately, and Christopher would not have suffered such catastrophic injuries.

“The Court of Appeal were right to say that once a surgical process was contemplated, only the surgeon could be in charge of managing the process from that point.

This fundamental point was obscured by the focus at the trial and in the judgment on the output, or lack of it, of the CTG machine which had monitored the FHR whilst Mrs Singh was on the maternity ward.

“A further point that may have distracted attention from what should have been the main issue was the debate over the difference in the role of the consultant obstetrician in a private hospital compared with a consultant obstetrician in a public hospital.

“There may certainly be differences between the position in the public and private health sector as regards the vicarious liability of the hospital for the failures of the consultants it employs. But there has been no suggestion that it is any less important in a private hospital than in a public hospital for the obstetrician to ensure that he or she has the information needed to make the correct decisions as to how to proceed when it becomes clear that a natural birth is not possible. “The Board is firmly of the view that the Court of Appeal was right to hold that Dr Persad was negligent in failing to ensure that he and Dr Narra were aware of the baby’s condition during the 50 minutes when Mrs Singh was in the operating theatre.”

In its judgment, delivered by current Chief Justice Ronnie Boodoosingh, with Justices Nolan Bereaux and Maria Wilson concurring, the Court of Appeal held that Persad’s role “was overarching and supervisory of the entire process.”

“He was the team leader. A midwife cannot have responsibility in a surgical procedure.”

Boodoosingh wrote, “Dr Persad may not have been responsible for all of the delay, but he failed to be proactive and failed to manage the consequences of the delay as was his responsibility…

“Neither the hospital nor Dr Persad treated this delivery with the urgency required, and they are therefore, on the judge’s findings of fact, both liable in negligence.

In its judgment, delivered by Lady Vivien Rose, the Privy Council rejected arguments that the allegation was unfairly pleaded or not properly put to Dr Persad at trial, finding that the pleadings, expert evidence and cross-examination clearly raised the issue of inadequate monitoring in the operating theatre. It also accepted evidence that foetal heart rate monitoring could have been performed manually and would likely have revealed distress, prompting faster delivery.

Although dismissing his appeal, the London-based court agreed with Dr Persad on limited points, holding that he was not negligent merely for the overall time between the decision to perform a caesarean section and delivery in the absence of known foetal distress, nor for briefly leaving the operating theatre during the administration of anaesthesia.

“In so far as this is intended to be a finding of negligence based merely on his absence separate from the wider point about delay, the Board agrees with Dr Persad that there is no basis for concluding either that a consultant is expected to be in the operating theatre for the whole period prior to the start of surgery or that Dr Persad’s absence had any effect on the progress of events.”

Also presiding over the appeal at the Privy Council were Lords Lloyd-Jones, Briggs, Leggatt and Richards. Attorneys Renald Davidson and Terrance Neale represented Dr Persad at the Privy Council.

Nicole Singh was represented by Michael Powers, KC and Ravi Heffes-Doon, instructed by Neela Ramsundar. Ian Benjamin, SC, Vanessa Gopaul and Elena Araujo represented the hospital as an intervener.