AUSTRALIAN COLLEGE OF MIDXVlVESINCORPORATED
MIDWIFERY NEGLIGENCE: A CASE S T U D Y
Judith L M Mair
RN CM LLB PhD
Senior Lecturer,
School of Community Health
The University of Sydney, Cumberland Campus
East Street, Lydcome, NSW 2141
ABSTRACT
A professional health practitioner can be found in
law to be liable to compensate clients w h e n the
practitioner causes harm to the client through a
negligent act or omission. To date, most health-
related litigation has b e e n directed toward the
medical profession. A minority of cases are taken
against health institutions with respect to nursing
and midwifery practice. In recent years there have
b e e n a few cases in England in which midwifery
practice has b e e n an issue. The purpose of this
article is to report on one such case. It is important
for all midwifery practitioners to be aware of the
facts and circumstances in which midwives have
b e e n found to be negligent, and the w a y in which
the courts have dealt with the matters in dispute.
INTRODUCTION
The law of negligence provides a legal means
w h e r e b y a person, called a plaintiff, may recover
compensation for injuries caused by a negligent
act or omission of another person n a m e d as a
defendant. In litigation alleging professional real
practice, the majority of cases have b e e n against
the medical profession.
Of late, a n u m b e r of cases have b e e n brought
against health authorities in England in which
midwifery practice has b e e n an issue. One of
these cases, Parry v North West Surrey Health
Authority [1994] 5 Med LR 259, is reported herein.
In that case, a child recovered damages against the
defendant health authority as employers of a
doctor and a midwife whose joint negligence was
said to have caused the child to be b o r n with
brain damage. The defendants admitted liability.
The case is instructive not only with regard to the
factual circumstances, but in the way in which the
Judge hearing the case dealt with the evidence
before him.
DECEMBER 1997 ACMI JOURNAL
T h e Facts
The plaintiffs mother was admitted to hospital
in labour and with raptured membranes on 19
December, 1989 at 11.10 am. This was her first
pregnancy, and her prenatal period had b e e n
normal throughout. She had a normal sized pelvis.
O n a d m i s s i o n , an a b d o m i n a l a n d v a g i n a l
examination revealed that the head was high, five
fingers above the pelvic brim. The doctor w h o
p e r f o r m e d the e x a m i n a t i o n s , Dr A n t h o n y ,
underlined findings regarding the high headb, and
reported the matter to Dr Ahmed, the acting
Registrar. Dr Ahmed did not examine the patient
at this time but gave Dr Anthony instructions that
the patient be left for a few hours until the head
d e s c e n d e d a little, and then to c o m m e n c e
Syntocinon. Dr Ahmed did not see the w o m a n
himself until 00.40 on 20 December. He left the
m a n a g e m e n t of the case to the midwives.
An abdominal palpation was performed at 16.45
w h e n the head was recorded as 3/5 palpable,
indicating that some descent had occurred. A
vaginal examination at 20.30 found the presenting
part to be at station 0. An episode of bradycardia
was recorded at the same time. There was no
further progress from then onwards.
Mrs Moss, the midwife, came on duty at 21.30 and
took charge of the patient. Although the midwife
gave oral evidence that she had palpated the
patient during the night, there was no record of
any palpation noted in the patient's record.
Full dilatation occurred at 22.30. A student
midwife was left in charge of the patient from
22.40 to 23.20. Although Mrs Moss stated that she
did not want the patient to push in her absence,
the w o m a n began pushing with encouragement
of the student midwife. When Mrs Moss returned
at 23.20 she allowed the pushing to continue
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 AUSTRALIAN COLLEGE OF MIDWIVES INCORPORATED
By that time the patient had been in second stage
for 1.5 hours and pushing well for 1 hour with no
descent, despite good contractions. At 24.00 a
second episode of fetal distress was noted on a
trace, from which the ferns recovered.
No doctor was called to assess the patient until
00.35 when the midwife, following a vaginal
examination, called Dr Ahmed. The doctor,
without examining the patient, o r d e r e d an
epidural top up. He later returned, examined the
patient for the first time and decided to attempt an
instrumental delivery. He attempted a delivery by
v e n t o u s e extraction f o l l o w e d b y Kielland's
forceps. The attempt was discontinued and the
doctor called for an assessment of the fetal heart
rate. The evidence was not clear as to what the
heart rate was, as the trace was lost. Nevertheless,
the Judge accepted that there was a fall in the fetal
heart rate at about 1.10 in the morning. Dr Ahmed
said a Caesarean Section would have to be
performed.
All the expert witnesses agreed that the baby's
brain damage was caused by short hypoxic period
close to the time of birth. The Judge was satisfied
that the attempted forceps delivery materially
contributed to, even if it did not solely cause, the
episode of bradycardia which led to the acute
hypoxia-ischaemia.
T h e Law
The law of negligence requires that a plaintiff
prove that the defendants o w e d a duty to the
plaintiff, that they breached that duty and that the
breach of duty caused the injuries suffered by the
plaintiff. The onus is on the plaintiff to prove all
of the elements of the tort of negligence at the
civil standard, that is, o n the balance o f
probabilities.
Judge Curtis, who heard the Parry case expressed
the relevant law as follows:-
The test to be applied as to whether there is any
negligence by (as here) a senior house officer,
acting registrar and~or midwife by the standard of
the ordinary skilled gynaecologist/midwife
exercising and professing to have the special skill of
a registrar in gynaecology and obstetrics or
midwifery.
PAGE 28
Only if the doctor or midwife fails to measure up to
that standard can he be said to be negligent. The
measure can be expressed also by asking whether
the actions of either were such as a reasonably
competent doctor of midwife exercising appropriate
skill and care could have been taken (at p 261).
The Judge went on to point out that a wrong
decision by a doctor or midwife is not the issue.
What is in issue is whether that wrong decision
resulted from negligence on the part of the
practitioner. He also expressed the opinion that
there is no negligence if a doctor or midwife
conforms to a proven usual and normal practice,
provided that the practice has passed judicial
scrutiny that the practice does not put the patient
unnecessarily at risk. The standard is that which
the law regards as correct in the circumstances.
The Judge accepted that there can be genuine
differences of opinion between doctors, and the
fact that a defendant doctor or midwife has
followed one opinion as opposed to another
opinion does not prove negligence.
The Outcome
After considering the facts of the case, the Judge
held that Dr Ahmed effectively deprived himself of
any first-hand knowledge of the patient by leaving
the whole case to be managed by the midwives
and not seeing the patient himself until 00.40.
The doctor failed to inform himself of the patient's
labour history and was negligent in failing to
palpate abdominally the patient. This failure to
inform himself was said to have led him to believe
mistakenly that the fetal head was lower than it
was. The attempt at Kielland's forceps delivery
was d o n e w h e n the fetal head was at an
unacceptably high level, and the doctor should
have proceeded to a Caesarean Section. In the
opinion of the Judge, a delivery by Caesarean
Section would have avoided the damage suffered
by the baby.
The midwife was held to have been negligent in
failing to p e r f o r m abdominal examinations,
relying solely on vaginal examinations. Since
vaginal examination may be inaccurate, due to the
presence of caput and moulding, the midwife
ACMI JOURNAL DECEMBER 1997
 AUSTRALIAN COLLEGE OF MIDWIVES INCORPORATED
failed to assess properly the fetal position. In view
of the notes, the fetal heart rate trace and the
patient's distress, the midwife was not entitled to
discount the pushing that had occurred prior to
her return at 23.20. She should have sent for a
doctor.
DISCUSSION
The court action was taken b y the infant plaintiff
against the North West Surrey Health Authority as
the employers of both the doctor and midwife.
The doctor and midwife were not n a m e d as
defendants since an employer is vicariously liable
for the civil wrongs of its employees which occur
during the course of their employment. However,
the conduct of both the doctor and midwife was
examined for evidence of negligence before the
area health service could be held liable to
compensate the plaintiff.
Records of legal cases are in the public domain
and a doctor or midwife can find themselves
named, and findings of negligence found against
them, with no redress, for the rather public airing
of their acts or omissions. Judges will also publicly
evaluate the evidence presented in a trial, and the
witnesses giving such evidence, commenting on
their acceptance of evidence and on the credibility
of witnesses.
Judge Curtis in Parry made comments which
illustrate the above points, and provide a salutary
lesson for those w h o are parties or witnesses in
legal cases. The judge discounted Mrs Moss'
statement that she had performed an abdominal
palpation finding that she had relied entirely on
vaginal examinations. According to the Judge, Mrs
Moss' description of the events in question was
"not genuine recall" (at p 263). He also stated that
she showed "a chauvinesque loyalty to her doctor
and hospital" (at p 263).
With respect to Dr Ahmed, the Judge stated that
he disbelieved the doctor's evidence on one
aspect of the case regarding his actions and
k n o w l e d g e o f the w o m a n ' s p r o g r e s s . H e
c o m m e n t e d that this was a "serious finding" (at
page 263). The Judge also disbelieved Dr Ahmed's
account that he had performed an abdominal
examination w h e n he first saw the patient. With
DECEMBER 1997
respect to a witness for' the defendant, a Mr
Pearson, the judge c o m m e n t e d that he found him
"to be more of an advocate at times ..." (at p 264)
and that the witness's evidence on some points
"was a firm indication that I could not treat his
evidence as reliable" (at p 265).
The Judge's criticisms and his express rejection of
witness' testimony in this case was unusually
strong. In most cases, judges will weigh up the
evidence and form an opinion of the witnesses
giving the evidence in terms of the probative
value of such evidence. Nevertheless, it is a
legitimate function of a judge to c o m e to
conclusions as to the value of the evidence given
in a case and the worth of the witnesses giving it.
A Judge may disregard the evidence of a witness
in favour of the evidence given by another where
such evidence is inconsistent. Where there is little
agreement b e t w e e n witnesses, a Judge must
determine which evidence he/she will accept and
which to disregard. In commenting on such
matters, Judge Curtis stated:
There is little measure o f agreement between them.
The disputes vary f r o m one o f direct conflict
through differences o f degree a n d emphasis, to
differences o f language, I have to resolve these
disputes. My approach has been to consider each
expert's evidence in the usual way a n d have
regard to his or her expertise a n d research. I shall
not repeat in this j u d g m e n t the copious references
each witness m a d e to his own experience a n d
research to uphold his o w n conclusion a n d
demolish his opposite number's., otherwise this
j u d g m e n t would be too long.
With regard to the much-quoted text books a n d
journals, selected passages have been relied upon
by both parties to serve theirparticular ends, but it
is clear in m y view that whereas these provide
material which must be considered - as I have -
they cannot be conclusive on the particular facts
o f this case. It is obvious that in this case the
questions which require answering must be seen
in the context o f the whole case. O f necessity some
o f the previous research is not completely clear in
its application to the present questions a n d none
are exactly in point (at p p 260/61)
ACMI JOURNAL PAGE 29
 AUSTRALIAN COLLEGE OF MIDWIVES INCORPORATED

CONCLUSION seeking compensation for harm alleged to have

The Parry case should be of interest to all
midwives. Midwives as professional clinical
practitioners, owe a legal duty of care to avoid
harm caused by negligent acts or omissions.
Midwives must practise their profession at the
standard of the reasonably competent midwife.
Failure to do so may find a midwife before a court
in a civil trial where an aggrieved plaintiff is
been caused by the midwife's negligence. The
medical profession has increasingly become
concerned regarding the number of legal actions
cases being taken against doctors. Midwives can
learn from their experience and from the
messages inherent in cases such as Parry
and others which have been heard of late in
England in which the practice of midwifery has
been in issue.

FELLOWSHIP TO THE AUSTRALIAN COLLEGE OF MIDWIVES

M e m b e r s o f the College a r e invited to a p p l y f o r Fellowship.
Applications close 31 May, 1998

FELLOWSHIP
FELLOW
Criteria for eligibilityfor admission to Fellowship:
1. Continuous financial membership of the
Australian College of Midwives Inc. (ACMI)
for the last five years.
2. Evidence of formal a n d / o r continuing
professional development other than that
gained from initial midwifery registration.
3. A significant contribution for the benefit of
the midwifery profession and/or the health
of women and their families, as demonstrated
by:
a. professional and personal development of
self and others within the sphere of
midwifery practice
b. commitment to the ACM and other related
organisations, i ncl udi ng significant
contribution and participation at state,
national and/or international level.
4. An outstanding contribution to professional
excellence in midwifery through consistent
professional excellence in midwifery care
and practice, education, management,
research, scholarship and/or other
outstanding development.
CATEGORIES
D I S T I N G U I S H E D FELLOW
Distinguished Fellow is awarded to any member
of the Australian College of Midwives who, in
the opinion of the College of the day, has made
an outstanding contribution to midwifery for the
benefit of the midwifery profession and/or the
health of w o m e n and their families.
Distinguished Fellowship is conferred for the
lifetime of the individual and can only be
revoked by the Executive Committee of the
College.
H O N O R A R Y FELLOW
Honorary Fellow is awarded to an individual
who is not a midwife and in the opinion of the
College of the day, has made a significant
contribution to midwifery for the benefit of the
midwifery profession and/or the health of
women and their families.
Further information of the Fellowship criteria
and the application form may be obtained
from the Executive Officer, ACMI, 1st Floor,
3 Bowen Crescent, Melbourne, Vic., 3000.
Telephone (03) 9804 5071, Fax (03) 9866 1370.

GoLLEG~
_

DECEMBER 1st 1997

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PAGE 30 ACMI JOURNAL DECEMBER 1997