Erb’s Palsy: Is the Tide Turning?
April 2007
In this article...
Introduction
Erb's Palsy (or Erb Duchenne brachial plexus injury) is an injury to the brachial plexus nerves usually occurring at birth and can result in loss of movement or development of the whole arm and hand. Despite the fact that one study suggested that over 50% of Erb's Palsy cases develop without associated Shoulder Dystocia, Claimants‘ lawyers have traditionally argued that diagnosis of Erb's Palsy is itself evidence of excessive traction being applied when Shoulder Dystocia is present.However, the developing literature (particularly from the USA) shows that there are a number of non-negligent causes of Erb's Palsy which the courts in this country have been increasingly willing to take seriously, accepting that diagnosis of Erb’s Palsy is not automatically indicative of negligence.
The two key cases are Ellis v Royal Surrey County Hospital 2004 and Rashid v Essex Rivers Healthcare NHS Trust 2003. Crucial to both cases was the reliability of the notes and the training and competence of the delivery team. With that in mind the following article outlines key advice for avoiding and defending claims in this area.
Avoiding Claims – guidance for Trusts
Implementing the following rules in all deliveries should help to avoid injury occurring and/or aid in the defence of claims.| Rule | Reason |
| Ensure the Trust has referenced, evidence-based, multidisciplinary guidelines for the management of Shoulder Dystocia. All relevant staff should be made aware of the guidelines and should ensure that any departure from them or from the HELPERR protocol is clearly justified in the notes. We love to see the Shoulder Dystocia ‘drill’ prominently displayed on the labour ward when we arrive to meet witnesses! The guidelines must be reviewed at least every three years. We can advise you about your current guidelines if you have concerns about them. | Required by Maternity Clinical Risk Management Standard 4. Staff will be judged against the guidelines and unexplained departures from them will be questioned. |
| Ensure that all relevant staff participate in an annual skills drill on dealing with Shoulder Dystocia. Keep up-to-date records of attendance. | Required by Maternity Clinical Risk Management Standard 5 to enable staff to deal with emergencies. |
| Ensure that relevant staff are aware of the risk factors for Shoulder Dystocia, for instance high birth weight, overweight or obese mothers or a long second stage of labour. The presence of one or more of these risks factors should be determined and form a part of the birth plan. | Not being aware of the risks will constitute substandard practice. |
| Ensure that Apgar scores for tone are recorded in the notes. | A low Apgar for tone may mean there was no protective muscle tone during the delivery. Some experts argue that this puts the baby at risk of a brachial plexus injury even if only gentle traction is applied. |
| Develop a culture, through training and education, of thorough note keeping. Notes should record foetal position (including anterior or posterior shoulder) at various points of delivery, manoeuvres employed (including suprapubic pressure), when and by whom, any instruments used, and the degree of traction applied. | Contemporaneous notes are vital. Years later, clinicians are unlikely to remember everything and there may be a dispute as to what happened and who did what. Accounts by distressed patients or family members can be very inaccurate for understandable reasons, but without cogent notes, rebutting them can be difficult and a Judge may conclude that clinicians who do not keep good notes do not deserve the benefit of the doubt. In Rashid, a note indicating the injured shoulder was posterior during delivery rebutted the claim that the child was injured by excess traction pulling it against the mother's pubic bone. |
Defending claims – the response of the Trust in the immediate aftermath
Following diagnosis of Erb's Palsy, the priority of the adverse incident investigation should be a thorough review of the notes as accuracy here can determine a case that may be brought years later. Entries in the notes should not be made retrospectively, but separate statements from members of the delivery team should be sought where there are gaps. Keep to the facts!You will probably wish to liaise with your legal department at an early stage so that you can make sure that you know what documents forming part of the initial investigation will or will not be discloseable in any subsequent legal proceedings. We can advise you on this if needed.
| Rule | Reason |
| Review the labour and neonatal notes and seek comments from the members of the delivery team where the notes are incomplete. | To ensure there is the best possible contemporaneous account of what happened. |
| Ensure that computer-aided reporting systems have sufficient options for accurately recording the type of delivery. | There was an unnecessary complication in the Ellis case as the system constrained the midwife to select a description which did not accurately reflect the delivery and gave the impression that the obstetrician applied more traction than was actually the case. |
| Retain copies of all the Trust's Shoulder Dystocia Management Protocol/Guidelines in force at any one time. | To ensure that at any later time, staff's actions are judged against the right criteria at the time (later Protocols are likely to be more demanding). |
| Make sure that you keep up to date contact details for all members of staff involved. You probably have a system in place for this already, but it is particularly important where there is the possibility of a potential claim. | There are often significant delays (sometimes of many years) between the diagnosis of Erb’s Palsy and notification of a formal claim. It is essential to be able to get in touch with everyone involved if and when the claim comes in. |
Preliminary investigations of a formal claim
Claims handlers should ensure that the following steps are taken as soon as possible when there is a claim:Obtain
 |
A copy of the Shoulder Dystocia Protocol in place at the time or an explanation of why there was no such policy | |
|
|
A copy of the Adverse Incident Report including comments from the midwives and clinicians setting out their individual involvement | |
|
|
Obstetric records including scans, CTG and partogram | |
|
|
Paediatric records including community records | |
|
|
GP records | |
|
|
Physiotherapy/orthopaedic/neurosurgical records including scans/x-rays | |
|
|
Education records to assess earnings/career potential which will affect quantum | |
|
|
If relevant: theatre records, staff training records and staff duty rota |
Identify and contact all members of the delivery team and staff providing antenatal care.
Each member of the delivery team should provide factual details of:
|
|
Their experience of handling cases of Shoulder Dystocia | |
|
|
Training they have received on Shoulder Dystocia including any refresher courses | |
|
|
Their involvement in the delivery specifying any manoeuvres undertaken (don’t forget suprapubic pressure) | |
|
|
The involvement of others around them | |
|
|
Their knowledge of the Trust Protocol for management of Shoulder Dystocia | |
|
|
A detailed account of the decision making process | |
|
|
Any risk factors present in the antenatal history and whether staff were aware of these | |
|
|
The position of the baby pre-delivery and at delivery to ascertain which shoulder was anterior (in Rashid, this made the difference between the claim being defensible or not) |
The paediatrician should detail:
|
|
Their recollection of what happened at the delivery and what each member of the delivery team did | |
|
|
Condition of the baby at birth – when was Erb's Palsy diagnosed? | |
|
|
Were any resuscitative measures needed? | |
|
|
Likely condition and prognosis? | |
|
|
Was early neurophysical testing carried out and if so, what were the results? |
Conclusion
Although Erb's Palsy can occur as a result of negligence, it has been accepted by the courts that it may also be caused by the maternal forces of labour (Ellis) or other non-negligent causes (such as the lie of the foetus – Rashid). We would be interested to hear from you if you have experience of Erb’s Palsy cases without Shoulder Dystocia (especially following a caesarean section). Following the above guidance should help to ensure that non-negligent cases can be successfully defended.
We value your comments, please click here with your feedback/suggestions
Forward to a
colleague