A birth injury action raised in 2004 took a step closer to completion last month when the decision was issued by the Lord Ordinary, Lady Rae, who heard the case over the course of four weeks in February 2015. The case concerned the birth of baby boy, C, in July 1999 at the William Smellie Maternity Unit at Law Hospital in South Lanarkshire. During his delivery, an obstetric emergency known as shoulder dystocia occurred, whereby one of C’s shoulders became stuck against his mother’s pelvic bone after his head had been delivered, hindering delivery, and the trainee midwife conducting the delivery was unable to guide his body out with his mother’s next contraction.

It was alleged by the pursuer that the Sister midwife, who stepped in to take over from the trainee midwife when she failed to deliver the baby, overcame the obstruction by simply pulling on C’s head; an action which was described by the pursuer in evidence as “pretty violent”, rather than following the hospital’s protocol for such a scenario which instructed that help must be called immediately and various manoeuvres performed to help release the infant’s shoulder. The pursuer also claimed that, as a result of the excessive force employed by the Sister midwife in delivering her son, he suffered a serious brachial plexus injury which, to this day, inhibits the use of one of his arms.

The defenders, the Health Board responsible for the midwives, argued that, in fact, shoulder dystocia did not occur and that the baby was simply a ‘snug fit’ in his mother’s pelvis. It was also suggested by the defenders that the injury to the baby was caused, not by excessive traction utilised by the Sister midwife (which was denied), but by the natural propulsive forces of labour and that no fault could be laid at the door of the delivery staff involved.

Evidence was heard from several witnesses, both factual and expert, and Lady Rae’s decision was published on the 22nd October 2015. She held that the Sister midwife failed to take appropriate action and that she simply overcame the obstruction by utilising excessive traction which was strong enough to cause C’s shoulder to give way and his body to be delivered. It was held that, although the Sister midwife had a “duty to exercise the skill and care of an ordinarily competent midwife” acting with ordinary skill and care, she failed to exercise those duties. Furthermore, due to the permanent nature of the child’s injury and the detailed evidence led for the pursuer in relation to the mechanisms of such injuries, it was found that this was caused by excessive traction, as opposed to being an unfortunate consequence of the natural forces of labour.

Lady Rae said, “I am satisfied that in course of his birth, C suffered a severe brachial plexus injury to his right side as a result of the negligence of the defenders’ employee, Sister Rosemary Murphy and for whom the defenders are responsible.”

The defenders, Lanarkshire Acute Hospitals NHS Trust, are now appealing this decision to the Inner House of the Court of Session.