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PERSONAL INJURY – NEGLIGENCE –STANDARD OF CARE – EXPERT WITNESS
 EWHC 2835 (QB)
HH Judge Peter Hughes QC
10 November 2016
The cases of Bolam and Bolitho remained good law for determining the relevant standard of care in a case for damages for personal injury sustained by the claimant at birth in 1993. Due to the significant passage of time (23 years) there were various issues relating to witness evidence and the appropriate standards of care to be applied. The claimant’s case was dismissed.
The claimant sustained a right brachial plexus injury, otherwise known as Erb’s Palsy, during birth at Stoke Mandeville Hospital. It is a well – recognised obstetric emergency. There was a dispute of fact to resolve regarding the positioning of the claimant’s shoulders during birth and whether excessive force was used, which could have resulted in her injuries.
The claimant’s parents both provided witness evidence. The evidence from the mother was contrasted with a ten-page contemporaneous letter she had drafted shortly after the birth but which she never posted. The defendant sought to demonstrate the inconsistencies between the two, notably a lack of reference to any excessive force being used within the contemporaneous letter. Similarly, the father’s evidence was not in sync with the mother’s and the pair could not agree on whether he was present for the birth or not. The defendant relied on notes made at the time, as their witnesses had no recollection of the events.
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The relevant legal principles established by the cases of Bolam v Friern Hospital Management Committee  1 WLR 582 and Bolitho – v City & Hackney Health Authority  AC 232 applied. In applying the test, the standards to be judged was that of a reasonably competent doctor, nurse or midwife judged by the standards that applied at the time in 1993 and not by the standards of today.
The gynaecological and obstetrics experts both came under close scrutiny. The judge found the claimant’s medical expert to be a distinctly unimpressive witness, with a serious lack of knowledge of clinical practice in 1993 and a worrying lack of appreciation of the importance of basing her opinions on the standards pertaining at that time. The judge preferred the defendant’s medical evidence. The importance of expert witnesses to maintain independence and objectivity in accordance with Part 35 CPR was stressed. In addition, the judge highlighted an expert’s need to inform those instructing them of any change of opinion as soon as possible so as not to give false hope to parties.
The judge also placed significant emphasis on the Protocol in place at the time and the fact the midwife present at the birth was a co-author of the Protocol, which appeared to have been followed.
It was held, whilst the judge accepted the parents as genuine and sincere, he did not accept their evidence on the force that was used at the birth. On all the evidence, he was not persuaded that excessive pulling or traction was used at any stage of the delivery. He held that the injury was likely sustained by ‘maternal propulsive force’ and not negligent excessive force. The claim was dismissed.
Kim Pryce & Matthew Allan, Anthony Gold