In a judgment handed down on 31st May 2012, Mr. Justice Hickinbottom dismissed an obstetric brachial plexus injury claim brought against Solihull Hospital.

Until relatively recently, conventional wisdom had it that OBPI shoulder dystocia claims could not realistically be defended. However, since the seminal judgment in Bennion there is no longer a presumption that OBPI are caused by accoucheur error. A Claimant must now prove, independently of the fact of injury, a failure of care.

In Croft v Heart of England NHS Foundation Trust [2012] EWHC 1470 (QB), the Court was presented with two very different accounts of the last few minutes of labour. The Claimant’s parents were adamant that the midwife had pulled repeatedly and with extreme force on the fetal head after shoulder dystocia had been diagnosed but before she called for help. Even though she had no independent recollection of the delivery and her contemporaneous notes were, by today’s standards, sparse, the midwife vehemently denied the allegation. On her account, she followed appropriate practice in this obstetric emergency. The four experts were agreed that if the parent’s account were accepted, there was a breach of duty, and if the midwife were right, then there was none. The case turned, therefore, entirely on the facts. At the end of a week long trial, the Court accepted the midwife’s account and dismissed the claim.