In this blog the case: JC v Birmingham Women’s NHS Foundation [2016] EWHC 1334 (QB) is explored.


The claimant, M, brought a medical negligence claim due to the injuries sustained by her son, J, during childbirth. J’s injuries resulted in cerebral palsy and M had to have an emergency hysterectomy following a post-partum haemorrhage.

M was a first-time mother and her pregnancy had gone well up to the point of childbirth. M was a day overdue and was showing signs of developing pre-eclampsia (high blood pressure and protein in urine) and as a result labour was induced.It was found that, had J been delivered earlier, all brain damage would have been avoided. Furthermore, had M undergone a delivery by caesarean section (C-section) her post-partum haemorrhage would have been avoided.

Issues for the court

The issues for the court to decide were:

Did M give informed consent to undergo induction of labour?

M argued that she was not asked for her consent for the induced labour which was carried out, however, before induction there was a risk of the claimant developing pre-eclampsia (high blood pressure), which increases the likelihood of an unsuccessful delivery. In addition, M was provided with a pregnancy book stating her options for delivery.

The defendant argued that even if M been taken to the delivery room 1.5 hours earlier, the time it would have taken to obtain consent, set up the CTG (a recording of the fetal heartbeat and the uterine contractions), understand the CTG and obtain the correct medical staff and instruments to perform a C-section, would have seen the delivery at the same time, or later than the procedure which was actually carried out.

Was M adequately cared for following induction? If not, would adequate care have prevented the injuries which the claimant and J sustained?

The claimant had argued that the busy nature of the ward that evening had led to an inadequate number of staff being available (2 midwives per 25 patients  at the time) leading to inadequate monitoring and vigilance.

Earlier transferral to the delivery room might have been  another way in which the outcome could have been avoided.

The impact of the case of Montgomery v Lanarkshire Health Board

Before this case, the Bolam test was used to identify whether there had been a breach in doctors’ duty of care in relation to cases of informed consent. In order to satisfy the Bolam test a medical professional must demonstrate that they acted in a manner which another responsible body of medical professionals would find acceptable.

The Bolam test is still used for assessing whether a doctor has breached their duty of care regarding things like treatment. However, after the decision of the Supreme Court in the case of Montgomery v Lanarkshire Health Board, this test was deemed no longer appropriate regarding questions of informed consent and a new one was introduced for specific cases like JC v Birmingham Women’s NHS Foundation.  

The new test moves away from the concept that ‘doctors know best’, towards the concept that patients have the right to make decisions about their own healthcare. The test looks at whether a person in the patient’s position would be able to attach significance to the risk presented. This new test allows a greater trust and independence in healthcare, and allows patients to voice their own concerns before being recommended treatment or solutions.


The judge found that the claimant had insufficient grounds to argue she had not properly consented to the induction of labour and that there was no evidence suggesting she would have taken action to delay labour had she not consented. The judge also found that the claimant’s care had been sufficient enough and did not fall short of the required standards.

There is evidence to suggest that  when patients undergo life trauma or injury they undergo emotional distress. This is understandable considering their circumstances.

However, it can sometimes cloud their judgement as to why this occurred and lead to looking for someone to blame to try to make sense of the loss.

More often than not, it is the  doctors/midwifes who are in the limelight to be blamed. Due to the context of the ward being overly busy, this gave the claimant the impression that she

was not receiving adequate support for a successful birth. However, the doctors were not found to be in breach of duty and thus the claimant failed with her case.

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Catherine Reynolds
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