Obstetric Causation: Managing Multi-Disciplinary Expert Evidence in Birth Injury Litigation

The Clinical Interface and Professional Roles

In clinical negligence litigation arising from intrapartum injury, the division of evidence between midwifery and consultant obstetric experts is a frequent source of procedural complexity. Establishing the chain of causation often requires a granular assessment of the division of labour between roles, particularly during the transition from routine labour monitoring to the management of obstetric emergencies. Instructing solicitors should ensure that the expert evidence base is coherent and appropriately aligned with the specific clinical responsibilities of each practitioner to avoid conflicting narratives on breach of duty and causation.

Midwifery practice often involves continuous monitoring and the recognition of deviations from expected progress. Midwives are responsible for observations, including the initiation and documentation of cardiotocography (CTG) monitoring, in accordance with the policies of the relevant NHS Trust. However, the threshold for escalating care to a consultant obstetrician remains a critical juncture in medico-legal analysis. Expert opinion must often address whether a clinical event—such as the development of hypoxic-ischaemic encephalopathy (HIE)—was a consequence of a failure to escalate, a failure to interpret fetal monitoring data appropriately, or a failure to execute delivery once the need for urgent intervention was identified. The expert must distinguish between the diagnostic capability of a midwife and the management oversight expected of a consultant obstetrician, applying the principles in Bolam v Friern Hospital Management Committee [1957] and Bolitho v City and Hackney HA [1998].

Procedural Coordination and CPR Part 35

The coordination of expert evidence is governed by the Civil Procedure Rules (CPR). Where a case necessitates evidence from both a midwife and an obstetrician, the instructing solicitor should consider the sequence of instruction. Formal proceedings often require distinct reports to address the respective duties of care.

Under CPR 35.12, the court may direct that experts hold a discussion to identify the issues on which they agree or disagree, and to prepare a joint statement. In complex cases, this requires careful preparation. If experts operate in isolation, the joint statement may reveal fundamental disagreements on the ‘but-for’ causation test. For example, if the midwifery expert contends that an earlier call to the consultant would have prevented the harm, but the obstetric expert argues that the same clinical outcome was inevitable due to the pathophysiology of the fetal compromise, the court is presented with a significant evidentiary gap. It is essential that solicitors avoid coaching experts to defend a party’s position; the duty of the expert under CPR 35.3 is to the court, and this duty overrides any obligation to the party instructing them.

Common Considerations in Expert Instruction

A frequent challenge in multi-disciplinary litigation is the instruction of experts who lack specific sub-specialty experience relevant to the index event. A consultant obstetrician experienced primarily in elective Caesarean sections may not provide the depth of insight required for managing complex intrapartum emergencies such as shoulder dystocia or acute cord prolapse. Similarly, a midwifery expert must possess sufficient clinical currency to comment accurately on the contemporaneous application of monitoring standards. The role of the expert is to provide an objective opinion that assists the court in reaching a decision based on the evidence, not to act as an advocate for the instructing party.

Solicitors should ensure that experts are provided with the full, chronologically ordered medical records, including CTG traces and relevant neonatal or paediatric neurology reports. If the court directs that evidence be given by a single joint expert under CPR 35.7, the process of instructions is governed by CPR 35.8. A single joint expert does not participate in a joint statement process with a second expert, as their role is to provide a single, neutral opinion for the court’s consideration.

The Value of Multi-Disciplinary Collaboration

Cases involving birth injury may necessitate input from paediatric neuroradiologists, paediatric neurologists, and experts in obstetric anaesthesia. When experts are accustomed to communicating across professional boundaries, they are better positioned to understand the scope of their respective reports. This does not imply collusion; rather, it facilitates a more efficient identification of the core issues in dispute, as mandated by the overriding duty to the court. By ensuring that the midwifery expert and the consultant obstetrician understand the specific causal questions being posed—such as whether a delay in delivery occurred, and whether that delay was the operative cause of the injury—the evidence presented to the court is significantly strengthened.

Practical Considerations for Instructing Solicitors

• Define the scope: Clearly distinguish between the standard of care expected of the midwife and the consultant obstetrician in the letter of instruction.
• Record disclosure: Ensure both experts have identical copies of the full medical record, including all fetal monitoring data and post-natal paediatric clinical notes.
• Timing of Joint Statements: Plan for the joint statement stage of proceedings early. If experts have differing views on the application of clinical evidence, identify this before the formal meeting to allow for more focused, useful discussions.
• Address Causation Explicitly: Frame questions around the ‘but-for’ test. Ask both experts whether the clinical outcome would have differed had the alleged breach of duty not occurred.