Evidence of duty of care in neonatal obstetric records: distinguishing standard of care from outcome in cerebral palsy claims

In birth injury litigation, the threshold for establishing liability depends on the distinction between an adverse clinical outcome and a failure to meet the required standard of care. Instructing solicitors and experts must prioritise the objective, contemporaneous medical record as the primary evidence in cerebral palsy claims to avoid the error of attributing physiological injury to retrospective clinical judgment.

The Evidential Base in Obstetric Records

An expert report in this context relies heavily on the completeness of the contemporaneous documentation. Essential evidence typically includes the partogram, continuous electronic fetal monitoring (EFM) tracings, umbilical cord blood gas analysis, and neonatal admission notes. Each document facilitates the reconstruction of the timeline during pregnancy, labour, and delivery.

Where key records are missing, the expert opinion must acknowledge this limitation. For example, a missing trace for a period of the second stage of labour may restrict an obstetrician’s ability to comment on whether a decision to expedite delivery was delayed. Under CPR Part 35, the expert witness must disclose the extent of their reliance on secondary evidence or assumptions in the absence of primary source material. Similarly, when analysing clinical decision-making, the standard of care applied to clinicians depends on the information reasonably available to them at the time, rather than subsequent diagnostic findings.

Breach of Duty and the Bolitho Threshold

In England and Wales, the assessment of breach is governed by the principles in Bolam v Friern Hospital Management Committee [1957], as qualified by Bolitho v City and Hackney Health Authority [1998]. An obstetrician’s conduct is assessed against a responsible body of professional opinion. However, Bolitho clarifies that such opinion must be capable of withstanding logical analysis. The expert must demonstrate that the chosen clinical path was a reasonable response to the specific fetal heart rate abnormalities or maternal clinical signs recorded at the time.

Hindsight is a frequent source of error in expert reports. The expert’s role is to evaluate whether the clinicians were acting in accordance with established standards at the time of the incident. Establishing breach requires evidence that a reasonable practitioner would have acted differently, rather than simply noting that a different outcome might have followed an alternative management strategy.

Causation and the But-For Test

Causation in cerebral palsy claims is often the most complex element of the evidence. The court generally applies the ‘but-for’ analysis, which asks whether the injury would have been avoided but for the identified breach of duty. As affirmed in Barnett v Chelsea and Kensington HMC [1969], this remains a fundamental principle for establishing factual causation.

When an expert considers whether a delay in delivery contributed to a neurological injury, the analysis must isolate the specific moment when the injury occurred and determine whether that moment is causally linked to a negligent act or omission. The expert report must clearly distinguish between the mechanism of hypoxic-ischaemic injury and other potential causes of cerebral palsy, such as congenital factors or antenatal insults.

Procedural Requirements for Expert Evidence

Under CPR Part 35, the court may restrict expert evidence or direct that it be given by a single joint expert. Where a single joint expert is appointed, instructions are governed by CPR 35.8. Alternatively, where parties instruct experts separately, CPR 35.12 provides a framework for discussions to narrow the issues in dispute. These discussions are intended to produce a joint statement that clarifies for the court where the experts agree and where they remain in disagreement.

• CPR 35.3: Defines the expert’s overriding duty to the court.
• CPR 35.10: Governs the required content of an expert report.
• CPR 35.12: Governs the process of expert discussions and the joint statement.
• CPR 35.14: Permits an expert to request directions from the court.

The expert’s duty to the court remains paramount and overrides any obligation to the instructing party. When issues remain unresolved, the joint statement must state the reasons for the disagreement clearly, allowing for targeted cross-examination.

Discipline Boundaries and Clinical Records

Obstetric and neonatal claims frequently require a multi-disciplinary approach. An obstetrician typically evaluates the adequacy of labour management, while a neonatologist or paediatric neurologist assesses the nature, timing, and cause of the neurological injury. Experts should remain within their areas of specialism unless they possess dual clinical qualifications. Where a handover of care occurs between the labour ward and the neonatal unit, the expert report must identify the specific records interpreted to establish the infant’s clinical state at birth. This ensures that the evidential base is robust and addressed by the appropriate specialist.