8th March 2022 ❘

Michelle Armstrong – Medical Negligence Partner and Birth Injury specialist

Michelle Armstrong is our Medical Negligence Partner and Birth Injury specialist and throughout her career as both a lawyer and a midwife she has been there to support women when things have not gone according to plan during pregnancy and birth. Michelle is a fierce supporter of women’s rights in the context of pregnancy and birth and International Women’s Day is the perfect time for her to share the progress she’s seen in how the law has developed to the benefit of women in the context of birth injury claims.

Michelle Armstrong, Medical Negligence Partner:

Consent and choice are often a key issue in medical negligence cases, particularly in birth injury cases where women have felt unable to have their choice of birth, whether that be a planned caesarean section or to avoid certain interventions. We have a number of cases where women have been denied their preferred choice with regard to maternity care and then gone on to suffer the very injuries they were worried about. So often the medical records include very brief details of discussions, with sweeping statements such as “risks and benefits discussed” which have impeded women’s ability to establish a claim when things have gone wrong.

“We have a number of cases where women have been denied their preferred choice with regard to maternity care and then gone on to suffer the very injuries they were worried about.”

The 2015 Supreme Court decision of Montgomery brought a change in emphasis from medical paternalism to one of shared decision making where a recognition of the need to address the particular concerns of each patient rather than provide standardised advice to all patients was recognised. This was a decision that seemed to shake medical practitioners and led to detailed guidance from their professional bodies. However, the effect of this important ruling in some respects is frustrated when vague medical records documenting discussions around consent are favoured by the courts over the women’s often very clear recollection of what was discussed.

It has been encouraging more recently to see the courts recognising that women may have a good recollection of what was discussed and confirming that there is no legal presumption that medical records are correct, all evidence being judged on its own merits. Whilst the issues of the accuracy of medical records will always be a concern in litigation, progress is being made in terms of recognising the autonomy and credibility of women and that is very encouraging and something to celebrate this International Women’s Day.

“Whilst the issues of the accuracy of medical records will always be a concern in litigation, progress is being made in terms of recognising the autonomy and credibility of women and that is very encouraging and something to celebrate this international women’s day”.