Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) (15 September 2017)

C was born on 30 August 1994… She suffered oxygen deprivation immediately prior to her birth and as a consequence sustained brain damage causing cerebral palsy….(paragraph 1)

C alleges that her condition was caused by the negligence of the… hospital between 20:40 hours and 20:58 hours on 30 August 1994. The birth had been entirely normal up to 20:40 hours but thereafter, C contends, it became increasingly apparent that C was suffering from fetal distress. The midwife should have called for medial assistance before she did, and if that had been done, and a doctor attended, C would have been delivered at or before 20:58 hours by forceps, and her injury would have been avoided. In fact no doctor arrived to carry out an assisted delivery and as a consequence C was born at 21:00 hours with cerebral palsy. (paragraph 2)

D denied negligence and contended that the midwife should not have called for medical assistance any earlier than she did, and that even had she done so, the assisted delivery would have been too late to have avoided Jades’s injury. During the trial however which was on the issue of liability only, D conceded that there had been a breach of duty in failing to call for the doctor earlier than 20:50 hours when medical assistance was in fact summoned. (paragraph 3)

It is also admitted that the C’s cerebral palsy was caused by asphyxia, and that had C been born by 20:57 – 20:58 her circulation would have been restored within one minute by 20:58 – 20:59 and her injuries would have been avoided. What remains strongly in dispute between the parties is whether any breach of duty by D caused such asphyxia, or whether it was unavoidable in that no properly summonsed doctor could have attended in time to have effected the delivery before the damage was done. (paragraph 4)


Whilst I am satisfied that there was a breach of duty by D, I am not able to find that causation is established. I have found that the second on call registrar was available to be called, that he was not called, but that even if he had been, I am not satisfied that the delivery time would on the balance of probabilities, have been any different to that which in fact it was i.e. 21:00. That time would have been too late for C to have avoided injury. This is a sad and unusual case, in which labour had been entirely normal until 20:40 when, without any prior warning, the fetal heart rate altered and a pattern of deceleration developed leading to fetal distress and birth asphyxia. The whole process from the first altered heart rate to birth was some twenty minutes. Even if medical assistance had been called as soon as it ought to have been, the evidence does not demonstrate that on the balance of probabilities a different result would have been achieved. (paragraph 118)