Taylor v Chesterfield Royal Hospital NHS Foundation Trust

Medical negligence is assessed by the standard applicable when the conduct occurred. A practice accepted as proper by a responsible body of skilled medical practitioners will not ordinarily be negligent. In a shoulder dystocia case, the court must assess the evidence against the practices prevailing at the time, including the urgency of delivery and the accepted use of moderate traction. Later recognition that downward traction carries risks does not retrospectively establish negligence. The reliability of recollections of events many years earlier must be assessed against contemporaneous records, inherent probabilities and the witness’s evidence. An adverse inference from an absent witness is discretionary and fact-sensitive; it is not automatic merely because the witness might have relevant evidence.

The claimant alleged that negligent traction during her birth in 1992 caused a permanent obstetric brachial plexus injury. The first three pleaded allegations concerning maternal positioning and suprapubic pressure were abandoned, leaving allegations of excessive traction by the attending midwives and registrar.

The parties agreed quantum at £1,150,000. The issues were whether excessive traction had been applied before the registrar arrived, whether excessive traction had been applied after his arrival, the evidential significance of the registrar’s absence as a witness, and whether the relevant conduct accorded with accepted practice in 1992.

1. Applicable standard. The court applied the Bolam principles, as confirmed in Maynard and subject to the qualification in Bolitho. The relevant standard was that of a reasonably competent doctor or midwife carrying out the expected functions in a general district hospital delivery suite in 1992. The Bolitho qualification was not engaged.
2. Period 1. The evidence did not establish that either midwife applied extreme or excessive traction. The traction used in diagnosing whether the shoulders were stuck was diagnostic. The court preferred the contemporaneous notes, the inherent probabilities and Mrs Rawson’s evidence to the parents’ genuine but unreliable recollections formed more than 25 years after the event.
3. Period 2. The registrar diagnosed the shoulder dystocia and delivered the claimant using an episiotomy, suprapubic pressure and moderate traction. That combination was accepted practice in 1992. The traction had a downward component, but downward traction was only later recognised as carrying the relevant risk. Negligence had to be judged by the standards prevailing in 1992.
4. Absent witness. The principles in Wisniewski establish a discretion, not an obligation, to draw an adverse inference. The registrar’s lack of recollection, the defendant’s attempts to secure his attendance, the available contemporaneous note and the live evidence of the attending midwife made an adverse inference inappropriate. The witness summary was admissible under the Civil Evidence Act 1995, but was not needed to determine what had occurred.
5. The claim based on excessive traction therefore failed. The claimant’s claim was dismissed.