Judgment: 2017-04-07 · Court archive

Court of Appeal sets aside dismissal of child’s birth injury claim and orders retrial

The court found the High Court had not clearly resolved whether shoulder dystocia or excessive traction caused the injury, and that its alternative causation finding lacked evidential support.

Court of Appeal · [2017] IECA 114

Who, what, where, when and why

Who
  • Sophie Everard
  • Health Service Executive (Defendant)
  • Chro Fattah
What

The court found the High Court had not clearly resolved whether shoulder dystocia or excessive traction caused the injury, and that its alternative causation finding lacked evidential support.

Where

Places mentioned in the report

  • Our Lady of Lourdes Hospital
  • Drogheda
When

Judgment:

Why

Reasons reported in the judgment

The Court of Appeal has set aside the High Court’s dismissal of a child’s personal injury claim over an injury sustained during her birth at Our Lady of Lourdes Hospital in Drogheda. It ordered a retrial, finding that the trial judge had not clearly decided key issues about the delivery and had relied on a causation conclusion that the evidence did not support.

The Court of Appeal has set aside the High Court’s dismissal of a child’s personal injury claim over an injury sustained during her birth at Our Lady of Lourdes Hospital in Drogheda. It ordered a retrial, finding that the trial judge had not clearly decided key issues about the delivery and had relied on a causation conclusion that the evidence did not support.

The child, Sophie Everard, was born on 23 January 2011. She was diagnosed the following day with left-sided Erb’s palsy, an injury to nerves in the brachial plexus. The parties accepted that the injury occurred during delivery.

Her claim alleged that her delivery involved shoulder dystocia and that Dr Chro Fattah, the senior obstetric registrar who delivered her, used excessive downward traction after delivering the baby’s head. The claim also alleged that required shoulder dystocia manoeuvres were not used. The Health Service Executive denied that shoulder dystocia occurred and said the McRoberts manoeuvre was used as a precaution. It maintained that the baby was delivered on the next contraction with normal traction, and that maternal forces may have caused the injury.

The High Court dismissed the claim in 2015. On appeal, the child argued that the trial judge had not weighed the evidence on the balance of probabilities and had instead treated the existence of another possible cause as enough to defeat the claim. The HSE argued that the judgment, read as a whole, showed the judge had rejected the allegations of shoulder dystocia and excessive traction.

The Court of Appeal said the High Court judge had made no express finding on whether shoulder dystocia was present or excessive traction was used. The judge had left open the possibility that shoulder dystocia had occurred but had not been identified, and had not decided whether excessive traction was applied. The Court of Appeal also found that the judge’s apparent conclusion that the injury was caused by maternal forces while the left shoulder was posterior in the birth canal depended on an abdominal palpation finding. The judge had earlier said that palpation did not establish, on the balance of probabilities, that the left shoulder was posterior at delivery. No delivery note recorded which shoulder was first delivered, and the appeal court found no other credible evidence supporting that causation conclusion.

The Court of Appeal therefore set aside the High Court order and directed that the case be retried. It did not decide whether shoulder dystocia occurred, whether excessive traction was used, or whether the HSE was liable. Those questions remain for the retrial.

Read the original court judgment

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