How a single joint expert’s report must address gaps in fetal monitoring traces under CPR 35.7 in England and Wales

The role of the single joint expert in fetal monitoring claims

In birth injury claims in England and Wales, a single joint expert (SJE) may be instructed under CPR 35.7 to assess the quality and interpretation of intrapartum fetal monitoring traces. Where gaps in the recording exist, the SJE’s report must evaluate their significance without speculating on missing information. The report should assist the court in determining whether the evidential basis for conclusions on breach of duty and causation remains sufficient.

Assessing the scope of monitoring gaps

An SJE reviewing fetal heart rate monitoring must distinguish between a trace that is inadequate for interpretation and one containing transient gaps. The report should address whether the monitoring was performed to the standard of a competent practitioner at the relevant time, applying the principles in Bolam v Friern Hospital Management Committee [1957], as qualified by Bolitho v City and Hackney Health Authority [1998].

Where gaps occur, the expert should determine if they coincided with periods where clinical action, such as escalation to obstetric review or a change in delivery method, might have been indicated. If the gaps are extensive, the report should state whether the clinical situation can be reconstructed from other sources, including:

• Contemporaneous medical notes documenting fetal heart rate observations.
• Timing and results of scalp electrode use or manual auscultation.
• The neonate’s condition at birth, such as Apgar scores and umbilical cord blood gas analysis.
• Witness statements from clinicians or parents regarding monitoring conduct.

If the missing data prevents a reliable assessment, the SJE must explicitly state this limitation rather than attempting to infer the missing information.

Reliance on secondary evidence

The SJE’s opinion should be based on the complete set of relevant medical records. Where the fetal monitoring trace is incomplete, the expert may consider secondary evidence to determine whether an informed opinion remains possible. However, under CPR 35.3, the expert must remain objective about the weight assigned to such evidence.

If the gaps prevent a definitive conclusion on whether care fell below the required standard or caused the injury, the report must acknowledge these limitations. This is particularly relevant to the court’s assessment of causation, which typically requires a but-for analysis as established in cases such as Barnett v Chelsea and Kensington HMC [1969] and Wilsher v Essex AHA [1988].

Distinguishing clinical and procedural failures

The SJE must differentiate between clinical assessment of the trace and procedural or administrative failures that may have caused the gaps. While an obstetric expert evaluates the clinical safety of decisions made, a midwifery expert may be better placed to address adherence to monitoring guidelines and recording practices.

If the claim involves both clinical management and monitoring procedures, the parties and the court must decide whether one SJE can cover the required breadth of expertise or if separate experts are needed. Under CPR 35.14, an SJE may seek directions from the court if the instructions are unclear or if gaps in the records make the original remit impossible to fulfil.

Causation and the impact of missing data

In birth injury claims, causation often depends on whether an alternative course of action would have prevented the outcome. Where gaps exist in the monitoring trace, the SJE must consider whether, on the balance of probabilities, the fetal heart rate would have shown signs of distress necessitating earlier intervention.

The expert should explain the clinical significance of the missing interval. For example, a short gap in an otherwise reassuring trace may be viewed differently than a gap occurring during decelerations or following oxytocin administration. The analysis must avoid hindsight and focus on the information available to the clinician at the time. Where the evidence is insufficient, the report should clearly state this as a limitation.

Clarity and utility of the SJE report

The SJE’s duty under CPR 35.3 is to provide an impartial opinion that assists the court. If the parties have questions about the findings, they may issue written questions under CPR 35.6. The expert’s responses can further clarify the interpretation of the traces and the impact of any gaps, helping the parties assess litigation risk.

The utility of the report depends on the clarity and comprehensiveness of the initial instructions. Where the evidence is incomplete, the SJE must delineate what can and cannot be reliably concluded from the remaining records. This ensures the report effectively informs the court’s findings on liability and causation.