Court of Appeal: Retrial ordered in negligence case against the Health Service Executive

About this case:

• Judgment:
  External link

Ms Justice Mary Irvine held that the trial judge’s causation finding was not supported by the evidence, and could therefore not be upheld. As such, it was necessary to set aside the judgment and Order of the High Court which had dismissed the claim.

Background

Ms Lisa Everard’s daughter, Sophie Everard, was delivered by Dr Chro Fattah, a senior obstetric registrar at Our Lady of Lourdes Hospital, Drogheda in January 2011.

The day after her birth, Sophie was diagnosed with left sided Erb’s palsy – a condition caused by injury to the left brachial plexus when the left shoulder becomes trapped and the angle between the shoulder and the head is increased resulting in a stretching injury to the nerves of the brachial plexus. It was accepted that this injury was sustained in the course of her delivery.

It was submitted on Sophie’s behalf that her delivery was complicated by shoulder dystocia, a condition which occurs when either the anterior or, less commonly, the posterior shoulder of a foetus impacts upon the maternal symphysis pubis or sacral promontory.

A commonly accepted definition of shoulder dystocia is a delivery that requires additional obstetric manoeuvres following the failure of gentle downward traction on the foetal head to effect delivery of the shoulders.

Because of a failure to progress, an instrumental delivery was commenced.

It was alleged that having delivered the infant’s head Dr Fattah diagnosed shoulder dystocia and that consistent with that diagnosis deployed what is called the McRoberts manoeuvre.

The appellant maintained that Dr Fattah then delivered her body and shoulders in a negligent manner by “pulling” her head downwards and that in doing so she applied excessive traction to the relevant structures as a result of which she developed Erb’s palsy. Prior to delivering the shoulders it was alleged that Dr Fattah did not instigate the manoeuvres mandated by the hospital’s guidelines governing the management of shoulder dystocia.

High Court

The appellant identified 24 particulars of negligence, all contending for the negligent management of the mother and foetus in the presence of shoulder dystocia.

Accordingly, critical to the success of the appellant’s claim was her need to establish, on the balance of probabilities, first that the condition of shoulder dystocia had occurred during labour and second that the injury to her left shoulder was caused by Dr Fattah’s mismanagement of that condition and in particular by her application of excessive traction to her head in order to deliver her shoulders.

In the grounds of appeal, the appellant submitted that it could be inferred from the final section of the judgment of the High Court that the judge considered it necessary for the appellant to prove her case on the criminal standard of proof i.e. beyond reasonable doubt, rather than on the balance of probabilities – accordingly, it was contended that he did not weigh the probabilities in relation to the allegations of negligence but rather went in search of evidence that might, in the context of criminal proceedings, defeat the prosecution’s claim; and that he failed to make any finding, as a matter of probability, as to whether shoulder dystocia was present or whether excessive traction had been used.

Court of Appeal

Delivering the judgment of the Court, Ms Justice Mary Irvine endorsed the findings in Doyle v. Banville IESC 25, stating that “a party to litigation is entitled to a judgment which will enable them know why they won or lost their case”.

While the Court is not obliged to “rummage through the undergrowth of the evidence”, Justice Irvine stated that it was regrettable that the trial judge did not fully engage with the evidence adduced on the appellant’s behalf and in particular failed to make an express finding as to whether or not shoulder dystocia was present or excessive traction deployed.

Justice Irivne was satisfied that the trial judge’s causation finding was one which was not supported by the evidence.

In particular, Justice Irvine pointed to paragraph 133 of the High Court judgment; in which the trial judge rejected the results of the abdominal palpation test carried out by a midwife “as sufficient evidence to convince him on the balance of probabilities that the left arm and shoulder of the plaintiff were posterior at delivery. That being so and in circumstances where there was no clinical note made as to which shoulder was first delivered or other evidence available to support that finding”, the dismissal of Ms Everard’s claim based upon this causation finding could not be upheld.

Justice Irvine therefore set aside the order of the High Court, and ordered a retrial.