6 Types of Independent Medical Experts Involved in Assessing Complex Maternity Care Failures

When things go wrong at birth, families are often left with more questions than answers. Who gets to review what happened on the labour ward? Who gets to decide whether a delay was significant or whether a doctor acted reasonably? The answer in each case is rarely one doctor, but a small panel of independent medical experts, each reviewing a discrete part of the clinical picture.

Why independent experts are preferable to treating clinicians

The doctors and midwives who care for mothers during birth cannot be expected to carry out an independent assessment of their own performance. In clinical negligence claims, this task is appropriately delegated to independent medical experts, who can review the clinical records with a view to forming their own opinion as to what standard of care should have been provided, and report back to the court on those matters, regardless of whether their opinion supports the claim.

It is for this reason that the expert instruction process is so deliberately dispassionate; the expert instructed by the family’s solicitors is not there to “support the family’s case”. Rather, he or she is there to give an opinion as to what a reasonable clinician would have done, with reference to the NICE guidelines and other bodies of opinion articulated in the Bolam test, as a matter of clinical practice. If the expert’s genuine opinion is that the defendant’s actions were reasonable or fell within the range of reasonable practice, then that is the opinion that the claimant’s solicitors must rely on, regardless of how inconvenient it may be to their case. This process falls to be regulated by the Civil Procedure Rules, Part 35, which govern expert evidence in general and which exist precisely to prevent expert witnesses from becoming advocates for whichever side of the dispute pays for their services.

Why maternity claims are “complex” in the first place

It is not that all maternity claims are complex, and it is not that all maternity claims require instructions from 6 experts. The reason why many of them do fall into this category is because of the combination of two factors:

1. The seriousness of harm sustained by the child or mother; and
2. The number of discrete clinical decision points that contributed to this harm

A claim concerning a routine infection that was simply not picked up at an antenatal visit would require a much more limited expert opinion, perhaps from an obstetric consultant. By contrast, a claim that a baby has sustained an acquired brain injury as a result of a prolonged period of oxygen deprivation will require a review of the CTG readings, midwifery notes, neonatal resuscitation, and neurological assessment, with reports from several experts in each of these fields. For similar reasons, maternity and neonatal claims comprise around 10% of clinical negligence claims brought against the NHS and over 50% of the value of all such claims, reflecting the significant financial impact of a small number of extremely high-value brain injury claims (NHS Resolution).

The standard “six expert” claim in relation to birth-related brain injury

In relation to birth-related brain injury claims, instructing solicitors will often seek to appoint a standard “six expert” team, for the following reasons:

Although this is by no means a hard and fast rule, and the number of experts required will vary depending on the particular circumstances of the case, it reflects the multidisciplinary nature of the care provided to a mother and her child during the birthing process and the sequential nature of a claim in relation to hypoxia and ischaemia.

1. Obstetric consultant experts

The primary focus of cases in relation to birth-related brain injury will be on the standard of care provided to the mother, who often presents with significant complications during labour and delivery. This includes pre-eclampsia and other pregnancy-related conditions. The management of such conditions can have implications for the wellbeing of the foetus; for instance, whether pre-eclampsia was appropriately managed for the benefit of the foetus.

2. Midwifery experts

The role of midwives in the context of birth-related brain injury claims is separate from the obstetrician’s role, and they will typically provide an opinion in relation to the standard of care provided to the mother and foetus during pregnancy in order to avoid complications during delivery.

3. Neonatologist experts

After the birth of the child, the focus turns to the neonatologist who will be involved in the resuscitation and care of the newborn. In relation to resuscitation, such experts may give opinions on the appropriateness of the identification of hypoglycaemia and other complications, the arrangements for transfer to a specialist neonatal intensive care unit if appropriate, and/or the management of the child after birth.

In the context of claims concerning hypoxic ischaemic encephalopathy, the role of the neonatologist may also involve an opinion in relation to whether the administration of therapeutic hypothermia was timely and appropriately carried out.

Neonatologists in these cases provide evidence on resuscitation, condition at birth, Apgar scores (a scoring system used to determine the wellbeing of the newborn immediately after birth and at 5 minutes post-birth), cord gas results (to indicate the extent of oxygen deprivation the newborn has suffered), signs of oxygen deprivation, resuscitation provided, timing of resuscitation, and the effects of such resuscitation on the newborn. Neonatologists can also examine the newborn for the purposes of the court proceedings in order to determine whether there are signs of respiratory difficulties.

Where several clinical disciplines are involved, families may seek advice from a Specialist Birth Injury Solicitor to understand how the expert evidence fits within the wider legal investigation.

4. Paediatric neurologist/paediatric neurodisability specialist experts

The involvement of paediatric neurology specialists is crucial in relation to determining the cause of the brain injury suffered by the newborn. The central issue in such claims will often concern whether the injury sustained by the newborn was caused by oxygen deprivation suffered during the birthing process, rather than occurring prior to birth or as a result of another cause, such as genetic conditions.

This is an incredibly important distinction, as it can dictate the success of the claim. It is a common misconception that identifying negligent care will, by itself, be sufficient to establish a successful claim. In reality, a claimant must also establish causation. In other words, even if it is possible to prove that clinicians made errors, it may not be possible to prove that those errors caused the injury.

5. Neuroradiologist experts

Brain scans are an essential part of the treatment of a child who has sustained a brain injury. Similarly, they can be useful in identifying the cause of the injury, although the interpretation of such scans is a highly specialist skill. A neuroradiologist will assess MRI scans and other scans carried out after the birth of the child to determine whether the injury has occurred during the birthing process or before, and whether it is appropriate to carry out further scans in due course. Certain patterns of injury are strongly indicative of injury occurring at the time of birth, whereas other patterns may suggest that the injury occurred earlier. It is not uncommon for there to be a disagreement between paediatric neurologists and neuroradiologists, and such disagreements can be exceptionally difficult to resolve from a legal standpoint.

6. Maternal-fetal medicine specialists or obstetric anaesthetists

There are occasions in which the focus of a claim for birth-related injury turns from the wellbeing of the foetus and the newborn to the wellbeing of the mother. This occurs when the claim arises from complications affecting the mother, such as pre-eclampsia, placental abruption, or an issue with anaesthetic management. In such cases, maternal-fetal medicine specialists or obstetric anaesthetists can provide an opinion in relation to the standard of care provided to the mother during her antenatal care, labour, and delivery. Although less common in birth-related brain injury claims, such evidence can be extremely valuable in cases where the claimant has also suffered significant complications affecting her own health.

How consent and communication failures are assessed differently

Not all maternity-related claims concern failures to identify or respond to complications during pregnancy or childbirth. There are instances in which a claim will concern a breakdown in communication between the clinicians and the mother, resulting in the mother not obtaining the information necessary to make an informed decision regarding her treatment. From a legal standpoint, the law concerning informed consent has changed significantly since the Montgomery ruling in 2015. It is now recognised that the duty of candour owed by the clinicians extends beyond disclosing information which a “reasonable person” would wish to know and encompasses information which the patient herself would wish to know. As such, experts commenting on failures of communication will be required to determine whether the information was inadequately disclosed from the patient’s perspective, rather than that of a “reasonable person”.

An obstetric expert report commenting on failures of communication will be markedly different to an expert report commenting on an error in the interpretation of a CTG trace. However, an obstetric expert will remain crucial in commenting on the issues surrounding the birth, regardless of whether the claim concerns a failure to identify a complication or a failure to communicate effectively with the mother.

From reports to joint statement: how the experts’ opinions come together

Having obtained reports from the expert witnesses, the case will not proceed directly to court. The Pre-Action Protocol for clinical negligence claims will typically require that experts on both sides in the same clinical specialism meet for an experts’ meeting to discuss the contents of the reports and agree on a joint statement of issues. At this meeting, the experts will review the clinical records and, after discussion, produce a statement which will set out the matters upon which they are able to agree and disagree.

The purpose of this exercise is that many of the matters which the claimant alleges to be a failure on the part of the defendant will be resolved. For instance, if the experts on both sides agree that the standard of care was below the standard which would be expected of a reasonable clinician, there will no longer be a dispute as to whether such breach has occurred. Instead, the dispute will centre around whether the breach resulted in any injury or loss and, if so, the appropriate quantum of damages. In many cases, expert evidence will also be required in order to determine the appropriate level of damages, due to the lifelong care needs of the claimant. As such, even if the dispute concerning liability and causation has been resolved, there may still be further expert reports required to enable the parties to value the claim appropriately.

What this means if your family is facing one of these cases

If you are reading this at the beginning of the process, it is completely understandable if the mere prospect of a legal case being fought out in court sounds exhausting, not least because of the involvement of so many experts. The process can be confusing, especially when considering the amount of records which have to be reviewed by each expert, the level of detail in each expert’s report, and the fact that the process is governed by a number of procedural steps before the case can be formally issued. All of this can be incredibly daunting, especially at a time when your family may be reeling from the loss of a child or dealing with the grief of bereavement, worrying about the funeral costs, or having to care for a surviving child when you are barely able to care for yourselves.

The important thing to remember is that each expert is there to deal with one particular set of issues. The obstetric expert is there to comment on one particular aspect of the birth, as is the neonatologist, midwife, paediatric neurologist, and so on. Each expert is there to answer specific questions, rather than to give one broad opinion as to whether the care provided was negligent overall. It is crucial to understand the distinction.