Scottish NHS Trust loses appeal in £725,000 negligence case over delivery of baby

A mother whose baby was left with a permanent disability as a result of the “excessive force” used by a midwife during delivery is to be awarded £725,000 damages after the health board lost an appeal in a negligence case against it.

The woman, referred to as “CD”, raised an action against Lanarkshire Acute Hospitals NHS Trust following the birth of her second child at Law Hospital’s maternity unit in July 1999.

A judge ruled that the baby boy suffered the injuries as a result of the “negligence” of the midwife, but the trust appealed that decision.

The Inner House of the Court of Session refused the reclaiming motion after ruling that the Lord Ordinary was more than entitled to reach the conclusion she did.

The Lord President, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm, heard that the pursuer, a registered nurse by profession, claimed the actions of Sister Rosemary Murphy caused her son “C” to sustain a serious shoulder injury resulting in permanent disability, but the defenders denied liability.

CD’s case was that the birth was delayed as a result of shoulder dystocia - basically stuck shoulders - and that the injury was caused by Sister Murphy effectively “yanking” him out to overcome the problem and deliver C.

It was accepted that there was an “initial difficulty” when only the baby’s head emerged, but the trust and Sister Murphy’s position was that C was delivered without excessive force, indeed without any force.

After the birth, a midwife told the pursuer that the child had been removed to a special care unit, but the parents were not told until later that the baby boy had been injured and were advised that he would recover.

However, they were subsequently they were informed that he had a “brachial plexus injury” to his shoulder.

The Lord Ordinary, Lady Rae noted that the case turned on whether CD had proved her version of events on the day and she ultimately accepted the pursuer’s account and ruled that the defenders were negligent.

The trust’s appeal was based on the proposition that the Lord Ordinary erred in accepting the account given by C’s parents, rather than that of Sister Murphy.

It was submitted that the Lord Ordinary “misunderstood” the evidence on material issues and reached a decision which was “plainly wrong”.

At the end of the appeal hearing the court refused the reclaiming motion, and the judges have now published their reasons.

Delivering the opinion of the court, Lord Malcolm said: “Having regard to the evidence led at the proof, plus the terms of the Lord Ordinary’s judgment and the parties’ submissions, we are wholly unpersuaded that the Lord Ordinary reached a wrong or unreasonable result. On the contrary, in our view she was more than entitled to conclude that bony impaction was overcome by the use of excessive force in order to achieve C’s delivery.

“No persuasive criticism has been made of the decision to accept the parents’ evidence as credible and reliable. That was a classic issue for the Lord Ordinary’s assessment, she having had the benefit of seeing and hearing them. A similar remark can be made in respect of the rejection of Sister Murphy’s evidence on the key issues.”

He added: “There was ample evidence to support the Lord Ordinary’s conclusions on the key issues. There is no warrant for the proposition that she failed to analyse and weigh relevant evidence in a proper fashion. She did not misunderstand either the evidence or the trust’s case.

“Many of the submissions ignored the injunction against undue textual analysis of the judge’s reasoning, or amounted to little more than an invitation to this court to review the evidence and reach its own decision on the issues in dispute. An appeal of the present kind is not the equivalent of a hearing on evidence.

“In essence the appeal is based upon the alleged accuracy of Sister Murphy’s account, but nothing has been said which persuades us that this court should proceed upon that basis.

“Furthermore, all of the above proceeds without regard to the independent support for the claim provided by the statistical evidence led on behalf of CD. While not sufficient on its own, there is no question but that it is wholly consistent with the injury having been caused by the use of excessive force to overcome shoulder dystocia.”