The Essential Role of Midwifery Expert Witnesses in Birth Injury Cases

How midwifery expert witnesses support the claimant and defendant in birth injury cases.

Midwifery Expert Witnesses are vital in assisting the Court in birth injury cases. A recent report by the All-Party Parliamentary Group (APPG) for Birth Trauma damningly stated that poor childbirth care is so common, and its consequences so damaging, that ministers and NHS bosses need to push through significant changes to how maternity staff look after the 600,000 women a year who give birth in England.

“The stories told by parents were harrowing. They included accounts of stillbirth, premature birth, babies born with cerebral palsy caused by oxygen deprivation, and life-changing injuries to women as the result of severe tearing. In many of these cases, the trauma was caused by mistakes and failures made before and during labour. Frequently, these errors were covered up by hospitals who frustrated parents’ efforts to find answers. There were also many stories of care that lacked compassion, including women not being listened to when they felt something was wrong, being mocked or shouted at and being denied basic needs such as pain relief. Women frequently felt they were subjected to interventions they had not consented to, and many felt they had not been given enough information to make decisions during birth. The poor quality of postnatal care was an almost-universal theme. Women shared stories of being left in blood-stained sheets, or of ringing the bell for help but no one coming.”

Midwifery Expert Witnesses are instructed by both the Claimant and Defendant in birth injury cases. They provide expert opinions on the following:

  • CTG (cardio-tocograph) misinterpretation.
  • Unrecognised antepartum haemorrhage (including placental abruption).
  • Development of pressure ulcers.
  • Undiagnosed third and fourth degree perineal tears.
  • Retained placental tissue resulting in secondary postpartum haemorrhage.
  • Failure to recognise the significance of vaginal bleeding within 24 hours of birth.
  • Delays in recognising sepsis.
  • Failure to identify prolapses that can result in the infant suffering from oxygen deprivation during labour.
  • Negligent use of delivery tools such as forceps that result in infant injury.
The Essential Role of Midwifery Expert Witnesses in Birth Injury Cases

Midwifery expert evidence relating to breach of duty and causation

The legal test for negligence is as follows:

a) The Defendant must owe a duty of care to the Claimant.

b) The Defendant must have breached that duty.

c) The breach must have caused foreseeable harm or damage to the Claimant.

Expert evidence is often required to establish whether a breach of duty occurred and/or if the breach caused the birth injury. In the case of SD v Grampian Health Board [2024] 4 WLUK 253, the Court of Session heard an appeal by a mother against the Lord Ordinary’s decision granting decree of absolvitor in her action of damages against the Health Board in respect of injuries sustained by her son during childbirth. Expert evidence from midwives and an Obstetrician showed that the Pursuer’s care in the induction ward fell within acceptable practice, and therefore, the appeal was dismissed.

In Monzur Miah v Birmingham and the Black Country Strategic Health Authority [2007] EWCA Civ 290, Midwifery Expert Witnesses were asked to provide evidence in a birth injury case where the labour had occurred over 25 years earlier. The Claimant, who was 26 years old at the time of trial, suffered from severe athetoid cerebral palsy caused by the fact that during the final stages of labour, the umbilical cord had prolapsed. Parties agreed that no brain damage would have occurred if the Claimant had been delivered five minutes earlier.

The key issue was whether the cord had prolapsed at the time that the Claimant’s mother had been examined by the midwife, at which time the mother’s membranes had ruptured. It was common ground at trial that if the cord had prolapsed before the completion of that examination, then the midwife must have been negligent in not identifying it. In dismissing the Claimant’s appeal, the Court of Appeal concluded that the trial judge’s assessment of the expert evidence pointed to the prolapse not having been present when the midwife conducted her examination. Even if this assessment was considered to be a liberal interpretation of the evidence, the expert evidence did not point conclusively to the prolapse having been there at the time of the midwife’s examination.

Experts in midwifery evidence are also aware of the latest research on midwifery procedures and standards of the profession. For example, expert midwives recently told a Court in a clinical negligence case involving a young mother who suffered life-threatening bleeding and a third-degree internal perineal tear that it was “vanishingly rare” to see such extensive tearing occur non-negligently.

In summary

Midwifery expert evidence plays a central role in birth injury claims. The intricacies of childbirth, the intimate nature of the injuries, and the potential for life-altering consequences demand a meticulous, sensitive, and compassionate approach. A well-chosen expert not only helps establish the grounds for negligence (or defend such grounds) but also assists the Court with calculating a quantum of damages that will assist the Claimant with funding the rehabilitation and care they need.

Expert Court Reports provides expert witnesses and medico-legal court reports for solicitors, barristers, and other agencies, including the police, probation services, prisons, third-sector organisations, and private clients. To instruct a Midwifery Expert Witness, please call us on 01865 587865, email, or request a call by completing our online form.