by Mary Hough May-24-2017 in Healthcare Law, Litigation & Dispute Resolution, Clinical Negligence
On 07 April 2017, Ms. Justice Irvine delivered judgment in respect of an appeal brought by Sophie Everard, the mother of Lisa Everard, arising out of the dismissal of her daughter’s claim by the High Court on 24 September 2015.
It had been claimed on behalf of Sophie that Our Lady of Lourdes Hospital, Drogheda had been negligent in the management of her birth on 23 January 2011. It was alleged that during the course of her delivery, a diagnosis of shoulder dystocia was made when the baby’s head was delivered but notwithstanding that, the infant was delivered with pulling of her head with the result that the excessive traction on her head and neck caused injury to the baby’s left shoulder.
The High Court had concluded that the baby’s left arm and shoulder were always posterior to the symphysis pubis and thus the injury could not have been caused by the clinician. It held that the baby’s left shoulder and arm were damaged in contact with the symphysis pubis but as a result of the natural propulsive forces of birth rather than improper traction.
Delivering judgment on behalf of the Court of Appeal, Ms. Justice Irvine noted the careful approach of the trial Judge to the difficult issues in this case but ultimately concluded that the trial Judge had not fully engaged with the evidence adduced on behalf of the infant. In particular, the Court of Appeal found that the trial Judge had failed to make an express finding on the balance of probabilities whether as a matter of fact shoulder dystocia was present or whether he was satisfied, notwithstanding indications in the evidence to the contrary, that no excessive traction was deployed.
The Court further found that the conclusion on the causation of the injury reached by the trial Judge was not supported by the evidence in circumstances where there was no clinical note made to confirm that the left shoulder was posterior as the infant descended the birth canal. The only evidence as to the position of the infant was based on the abdominal palpation carried out by the midwife which the trial Judge had found was not a sufficiently reliable test. In circumstances where there was no other evidence available to support the causation finding, the Court of Appeal held that the dismissal of the infant’s claim could not be upheld.
The Judgment of the High Court was set aside and the Court of Appeal ordered a re-trial.
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About the Author
Mary Hough
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.