RE & Ors v Calderdale & Huddersfield NHS Foundation Trust

Factual and Procedural Background

The First Claimant was born at 39 weeks' gestation at a midwifery-led birth centre managed by the Defendant. She weighed 4.7 kg at birth. The claim, brought by her mother as litigation friend, concerns personal injury arising from the circumstances of the birth. Additional claims for nervous shock were brought by the mother and her own mother, who was present at the birth. The father is a claimant but does not pursue his claim. It is undisputed that the First Claimant suffered an acute profound hypoxic ischaemic insult immediately before and after delivery. The issues to be determined include breach of duty and liability for nervous shock claims. The Defendant destroyed original medical records after the claim began, breaching disclosure duties, leaving only unsatisfactory photocopies available. The court proceeded on the basis that ambiguities in the records should be resolved in favour of the Claimants.

The Second Claimant's pregnancy was complicated by symptoms and concerns about fetal size, with scans showing a large fetus above the 90th centile. She chose to deliver at the birth centre with an alongside obstetric unit. On the day of delivery, after her waters broke, the Second, Third, and Fourth Claimants arrived at the centre. Difficulties arose during delivery, including shoulder dystocia or a similar obstruction, leading to a prolonged delivery and resuscitation of the First Claimant. Both the Second and Fourth Claimants suffered post-traumatic stress disorder as a result.

The court heard evidence from the Claimants, midwives involved in the delivery, the obstetric registrar, and medical experts. The Defendant admitted breaches in disclosure and some procedural failings but denied negligence in care. The court was tasked with determining whether there was breach of duty in managing the delivery, and whether the Second and Fourth Claimants were entitled to damages for nervous shock.

Legal Issues Presented

1. Whether the Defendant breached its duty of care in the management and delivery of the First Claimant, particularly regarding the timing and handling of a suspected shoulder dystocia.
2. Whether the Defendant is liable for the claims of nervous shock brought by the Second and Fourth Claimants.
3. Whether the Second Claimant qualifies as a primary victim or only as a secondary victim for the purposes of recovering damages for psychiatric injury.

Arguments of the Parties

Claimants' Arguments

• The delivery of the First Claimant was delayed beyond what was reasonable, particularly due to shoulder dystocia or body dystocia causing obstruction after the head was delivered.
• The Defendant negligently failed to anticipate and prepare for the risk of shoulder dystocia despite knowledge of the fetus's large size.
• Help was not summoned promptly during the second stage of labour, causing avoidable hypoxic injury.
• The Defendant's failure to maintain proper medical records justifies resolving ambiguities in the Claimants' favour.
• The Second Claimant should be treated as a primary victim for nervous shock damages because the injury to the fetus began while the mother and fetus were legally one entity.
• Both the Second and Fourth Claimants experienced sudden, shocking events sufficient to establish claims for nervous shock.

Defendant's Arguments

• There was no shoulder dystocia; any delay was not causative of injury.
• The care provided met accepted standards and the alongside unit had appropriate obstetric expertise available.
• The Second Claimant is not a primary victim for nervous shock as the injury to the baby occurred ex utero.
• The destruction of records was negligent but not deliberate, and the available records should be accepted as accurate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the evidence concerning the management of the delivery, focusing on the period between crowning and delivery of the shoulders. It found that the Defendant owed a duty to provide care conforming to reasonable medical and midwifery standards, particularly given the known risk factors such as macrosomia and shoulder dystocia.

The court identified significant inconsistencies and deficiencies in the medical records and witness accounts, partly due to the Defendant’s negligent destruction of original records. It resolved ambiguities in the Claimants’ favour, as agreed by counsel.

Critically, the court found that the midwife should have recognised the risk of shoulder dystocia once crowning occurred and the baby did not deliver promptly. Help should have been summoned around 16:37, which would have resulted in delivery by 16:42, avoiding injury. Instead, assistance was delayed, and the delivery was not completed until approximately 16:53, causing a hypoxic insult to the baby.

The court also found fault with the midwife’s exclusion of the obstetric registrar from the delivery room for about a minute, further delaying delivery and contributing to the injury. The court accepted that the midwife was under stress but held that her actions fell below the standard of care.

On the nervous shock claims, the court applied established legal principles distinguishing primary and secondary victims. It concluded that the Second Claimant was a primary victim because the injury to the fetus began while she and the fetus were one legal entity. This entitled her to recovery for psychiatric injury without the restrictions applicable to secondary victims.

Alternatively, if treated as a secondary victim, the court found that the Second Claimant met the control mechanisms for recovery, given the suddenness and severity of the event. The Fourth Claimant’s claim as a secondary victim was also upheld on similar grounds.

Holding and Implications

The court held that the Defendant was negligent in the delivery of the First Claimant by delaying the summoning of help, which caused the hypoxic injury.

The Second Claimant was held to be a primary victim for the purposes of recovering damages for nervous shock, and the Fourth Claimant a secondary victim. Both were entitled to damages.

The decision directly affects the parties by establishing liability for the Defendant and entitling the Claimants to damages. No new legal precedent was established beyond the application of existing principles to the facts of this case.