Croft (A Child) v Heart of England NHS Foundation Trust

In a claim concerning obstetric brachial plexus injury, negligence cannot be inferred merely from the existence of the injury. The claimant must prove, on all the evidence, that the accoucheur acted below the standard of a reasonably competent midwife and that the breach caused the injury. Diagnostic traction during delivery may be appropriate, but traction after resistance or shoulder dystocia is recognised as dangerous. Causation checklists may assist the assessment, but no individual factor, or combination of factors, necessarily establishes excessive traction. The decisive evidence will ordinarily concern what occurred in the delivery room between delivery of the head and delivery of the shoulders.

The claimant, a child, suffered permanent weakening and loss of function in his right arm following his birth at Solihull Hospital. He alleged that the defendant NHS trust was vicariously liable for the negligence of the senior midwife, who was said to have repeatedly and forcefully pulled his head after shoulder dystocia had developed and before summoning assistance. A further allegation concerned fundal pressure by another clinician, but causation was conceded in relation to that complaint.

The trial was confined to liability. The central issues were whether inappropriate traction or fundal pressure occurred, whether the hospital’s lack of a shoulder dystocia protocol and sparse records assisted the claimant’s case, and whether the injury itself supported an inference of negligence.

1. Claim dismissed. Judgment was entered for the defendant. The claimant failed to establish that the midwife used inappropriate or excessive traction.
2. The applicable standard was that of a reasonably competent midwife carrying out the functions expected of a midwife in a district general hospital, as stated in Bolitho v City & Hackney Health Authority [1998] AC 232. It was common ground that traction after recognition, or likely recognition, of impacted shoulders would be inappropriate and dangerous. The issue was factual: whether such traction occurred.
3. The court rejected any inference of negligence from the injury alone. In the light of the evidence reviewed in Bennion v North East Wales NHS Trust (24 February 2009, Unreported), the claimant had to prove his case in the usual way, particularly by evidence of what occurred during the delivery.
4. The evidence of the claimant’s parents was not accepted as a reliable recollection of the crucial events. Their mistaken recollection of a clinician straddling the mother and applying fundal pressure substantially undermined their account of forceful traction. The midwife’s evidence of her usual practice, her experience, the timing of the delivery and the prompt use of the McRobert’s manoeuvre supported the conclusion that she summoned assistance after diagnosing shoulder dystocia and then stopped traction.
5. The sparse medical records may have fallen below the standard reasonably expected in 1997, but they did not establish lack of competence or prove negligent traction. Similarly, even if a shoulder dystocia protocol should have existed, it would have recorded steps which the midwife was found to have taken.
6. The Draycott checklist was a useful aid to assessing causation. Its factors required judgment and evaluation of their individual weight. The presence of an anterior-arm injury, shoulder dystocia or permanent injury did not, alone or together, prove excessive traction. The evidence of what happened in the delivery room remained central.

First instance decision. No prior appellate decision is stated in the judgment.