RE & Ors v Calderdale & Huddersfield NHS Foundation Trust

A midwife attending a birth must respond promptly to the risk of shoulder dystocia where a baby is known to be large. If crowning has occurred and the head does not deliver after one or two contractions, the baby may be stuck in the birth canal. The midwife should diagnose potential shoulder dystocia and summon assistance immediately.

A mother is a primary victim where the negligent event begins while she and the fetus are, in law, one person and the resulting psychiatric injury is caused by the totality of the injury. Alternatively, a birth may satisfy the control mechanisms for secondary victims where the mother witnesses an objectively horrifying and exceptional event, outside the ordinary experience of childbirth.

RE suffered profound hypoxic-ischaemic injury during her delivery at the Defendant’s midwifery-led birth centre. Her mother, LE, claimed for RE’s personal injuries and also for her own psychiatric injury. DE, LE’s mother, claimed as a secondary victim. The Defendant admitted causation was no longer materially in issue but disputed breach of duty and liability for psychiatric injury.

The principal issues were whether assistance should have been summoned earlier, whether an obstetric registrar was unreasonably excluded from the delivery room, and whether LE was a primary victim or, alternatively, satisfied the requirements for a secondary-victim claim.

1. Breach of duty and causation. The Defendant was negligent in delaying the summoning of assistance. The medical records were unreliable because the originals had been negligently destroyed. The court therefore made findings on the most reasonable reading of the available records, favourable to the Claimants where appropriate. The Defendant owed the ordinary Bolam duty to provide treatment conforming to a reasonable body of medical and midwifery practice.
2. The staff knew that RE was a large baby and should have remained alert to the increased risk of shoulder dystocia. Once crowning had occurred and the head failed to deliver after one or two contractions, Midwife Garvey should have diagnosed potential shoulder dystocia and summoned help immediately. Assistance should have been summoned at about 16.37. Earlier delivery would have avoided the injury.
3. The court found that the exclusion of Dr Emovon from the delivery room for about one minute was unreasonable and inappropriate in an ongoing emergency. His presence could provide, and did provide, necessary obstetric assistance. This caused a further period of delay.
4. LE as primary victim. The negligence began while RE’s head had crowned but her body remained in the birth canal. At that point RE was not a separate legal entity from LE. The hypoxic injury began in utero and continued after birth. LE was therefore a primary victim, and her claim was governed by the principles in Page v Smith, rather than the control mechanisms applying to secondary victims.
5. Alternative secondary-victim analysis. LE was in the closest possible relationship with RE. The birth of a flat and apnoeic baby, followed by sustained resuscitation, was sudden, objectively horrifying and exceptional. It was not part and parcel of ordinary childbirth. LE would therefore have succeeded as a secondary victim. DE also witnessed the immediate aftermath and satisfied the requirements for recovery.
6. The claims for psychiatric injury succeeded. The court found liability for the negligent delivery and awarded judgment in favour of the Claimants on the issues tried.