Of embellished memories and the expertise of experts

A recent High Court case (Watts v The Secretary of State for Health [2016]) has raised a number of issues, including the reliance that can be put on a claimant's accounts of the events in question, and the expertise of expert witnesses. The case concerned a baby born in 1993 with a right-sided Erb's palsy caused, it was claimed, by excessive traction on the head or neck when shoulder dystocia arose. The claim alleged that the injured right shoulder was anterior at birth; the defendant responded that it was in a posterior position. That discrepancy had to be resolved by a consideration of the evidence.

As is usual after such a long gap, the midwives concerned had no recollection of events and were dependent on the clinical case notes, which stated:

‘Presentation & Position — at onset Cephalic ROA; at delivery Cephalic ROA.’

The claimant's case relied on establishing that the injured right shoulder had been in an anterior position. However, after considering the documentation and hearing from various witnesses, it was concluded that the injured shoulder had been in a posterior position and that the injury had probably been caused by traction against the mother's sacral promontory, a rare but recognised birth complication (Royal College of Obstetricians and Gynaecologists, 2012) and something that the midwives could not have known about prior to the full expulsion of the baby. Nevertheless, the birth injury was quickly apparent, and the baby's father met with the hospital's chief executive a few weeks after the birth. In his witness statement, the baby's father claimed: