Middleton v Ipswich Hospital NHS Trust

In a clinical negligence claim concerning shoulder dystocia, the court applied the Bolam test as qualified by logical analysis under Bolitho. A doctor must provide information about a significant risk where that information is needed to enable the patient to decide the course of treatment. Causation may be established by assessing what the particular patient would probably have decided if properly advised, rather than by relying on statistics or the usual response of other patients. A reasonable body of obstetric opinion supported the management of labour, so the alternative criticisms failed. Damages were assessed on the evidence, including a multiplier-multiplicand approach to future earnings where an earnings deficit could reasonably be identified.

The claimant suffered a permanent right brachial plexus injury during his birth following severe shoulder dystocia. His mother had previously experienced shoulder dystocia during the birth of another child, but that history was not identified during the claimant’s antenatal care. The defendant admitted that there should have been a discussion about the mode of delivery but disputed causation and alleged that vaginal delivery would still have been chosen.

The claimant also alleged that further investigations should have been undertaken during pregnancy and that caesarean section should have been considered during labour. Liability, causation and damages were in issue.

1. Advice and causation. Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, as qualified by Bolitho v City and Hackney Health Authority [1998] AC 232, expert opinion must have a logical and defensible basis. In assessing risks and benefits, the court must be satisfied that the experts have addressed the comparative risks and benefits.
2. Under Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53, a significant risk which would affect a reasonable patient’s judgment should ordinarily be disclosed where the information is needed for the patient to decide what course to adopt. The mother should have been advised about the recurrence risk, the potential significance of fetal size, and the alternative of caesarean section.
3. On the evidence, she would probably have requested an ultrasound scan and, after discussion of the increased risks and likely fetal size, would have chosen caesarean section. Causation was therefore established. The court assessed her decision prospectively and did not treat the usual response of other patients or statistical risk as determinative.
4. The alternative allegations concerning the timing of pushing and the need for caesarean section by 18:15 were rejected. The management of labour was supported by a reasonable and logically defensible body of competent obstetric opinion.
5. The court preferred a 25 per cent deduction for gratuitous care, applying Evans v Pontypridd Roofing Limited. It rejected recovery of swimming-related travel expenses. Future earnings were assessed using a multiplier-multiplicand approach because the evidence established an earnings deficiency, although the claimed uninjured earnings were reduced. A periodical payments order was inappropriate.

First-instance decision. The claim succeeded on liability and causation, with damages assessed in accordance with the judgment.