Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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High Court decision for
Defendant in Jack Beggs -v- The Medway NHS Trust
(So far unreported, 24 October 2008)
In this article...
The Claimant was born on 15 July 2002 at the Medway Maritime Hospital, Kent and suffers from moderate Erb's Palsy affecting his right shoulder and arm. His upper arm and shoulder are not growing in the same way as the undamaged left arm and shoulder - his right arm will end up shorter than the left and he will always have difficulty with activities or employment requiring bimanual dexterity or heavy lifting. With his mother and father in the delivery room when he was born were two midwives and an obstetrician but (as so often in these cases) the antenatal management and labour had appeared to be completely uneventful until approximately 2 minutes before his birth, when his shoulders did not deliver after the head with "routine traction" and the head started turning purple. Before turning to the events in those two minutes, we make the observation that his presentation was documented to be right occipito-anterior (ROA) antenatally on 2 June 2002 and, again, less than 2 hours before his delivery. In this position, the fetus' head is facing towards his mother's left and his left shoulder will be anterior (ie.. uppermost if the mother is on her back).
The problems started when the Claimant's head delivered at 21.55 hours and began to turn purple due to cord compression. The cord was around the neck and there was meconium present. The duty paediatrician was therefore summoned even before shoulder dystocia could be confirmed. The male midwife waited for the next contraction but once it was clear that this was delayed he asked the mother to push and applied gentle, routine traction in an axial direction to assess whether delivery of the shoulders was possible. There was only one attempt and the obstetric registrar arrived in the meantime. Shoulder dystocia was suspected, she took control, all traction was stopped and the mother was urged not to push, assistance was summonsed from another senior midwife, the bed-back was lowered and McRoberts' position was adopted with each midwife flexing one leg. The mother was not at the edge of the bed and, judging that she could not therefore apply traction in the correct direction, the registrar moved direct to the next stage of the shoulder dystocia drill by applying suprapubic pressure which dislodged the stuck anterior (left) shoulder without the need for traction. Thereafter the Claimant delivered with ease. He weighed 4.60 kg (ie.. large).
As is traditional in these cases, the Claimant's lawyers, supported by well known obstetric and midwifery expert witnesses, alleged that there were serial failures to put the mother in a proper McRoberts' position or to apply suprapubic pressure and that the birth attendants pulled too hard, for too long, in the wrong direction thus exerting excessive traction upon the brachial plexus. For a lot of Claimant lawyers, and for that matter a lot of medical experts or members of the judiciary, the very fact of a significant obstetric brachial plexus injury (OBPI) is of itself proof that the damage is attributable to the efforts to free the stuck shoulder. A small but growing body of medical literature (much of it from America) suggesting another mechanism and two Court cases in this jurisdiction (Ellis -v- Royal Surrey County & St Luke's Hospital NHS Trust in 2003 and Rashid -v- Essex Rivers Healthcare NHS Trust in 2004) suggesting that the injury can be caused by the natural propulsive forces of labour have been dismissed or minimalised by those maintaining the traditional view. There have been numerous published attacks on the propulsive forces theory in Clinical Risk and other journals broadly suggesting that the reported cases of OBPI without obstetric traction or sometimes without shoulder dystocia at all are statistically irrelevant, data collation errors, unrecorded or unobserved shoulder dystocia, or even self-made evidence for the purposes of avoiding compensation payouts, particularly in America. There are many detractors of the propulsive forces theory but three consultant obstetricians from Leeds, Sheffield and Harley Street with large medico-legal practices are probably representative of the main critics in the UK and these cases are still seen as very hard to defend.
As with Rashid, the Claimant's presentation was noted to be ROA and his injured right shoulder was posterior (at the bottom) confounding the traditional explanation that it was stuck upon the symphysis pubis (anterior to it). Not long prior to trial, the Claimant's mother had served a supplementary witness statement in which she first gave evidence that, "I have considered matters further and I am now clear in my own mind that at the time Jack's head delivered I could see his right ear and cheek and that he was facing my right thigh". As his lawyers put it, "Previously she could not recollect whether Jack was facing to her right thigh or to her left thigh. Accordingly, the medical record prior to birth that his head was ROA was the only evidence of his orientation. If Mrs Beggs' recollection is accepted by the court, and we see no good reason why it should not be accepted, then this means that Jack was likely LOA and not ROA. Therefore his right shoulder was anterior not posterior. The right shoulder was stuck under the symphysis pubis. Therefore, the issue of the natural propulsive forces of labour causing a posterior shoulder brachial plexus injury is redundant...". The Claimant's obstetric expert (Mr Gerry Jarvis) must have been pleased with the belated support. His reports had never given much credit to the possibility that the Claimant had not been LOA as documented in the medical notes or the pleadings and he had anticipated that the Particulars of Claim might be amended (in a joint statement following a meeting with the Defendant's expert obstetrician) nearly 3 months before this recollection first came to Mrs Beggs' mind. The late amendment to allege that the presentation was LOA caused an adjournment.
The Judgment. HHJ Hawkesworth QC, sitting as a High Court Judge in London, gave a careful and thoughtful judgment on all the evidence he had heard including the medical literature and the wider debate between supporters and detractors of the propulsive forces theory. He held that, "The evidence of the obstetric experts reveal that in medical science and literature a change in the view of the profession has occurred over the last 10 to 15 years. Whereas formerly it was the universally accepted view that OBPI was caused by the efforts of the obstetric staff to deliver a shoulder that is stuck, typically due to shoulder dystocia, the consensus view now is as follows, and I cite from a guideline paper of December 2005 from the Royal College of Obstetricians and Gynaecologists: 'Not all injuries are due to excess traction by the accoucheur and there is now a significant body of evidence that maternal propulsive force may contribute to some of these injuries. Moreover, a substantial minority of brachial plexus injuries are not associated with clinically evident shoulder dystocia. In one series, 4% of injuries occurred after a caesarean section. Specifically, where there is Erb's Palsy, it is important to determine whether the affected shoulder was anterior or posterior at the time of delivery, because damage to the plexus of the posterior shoulder is considered not due to action by the accoucheur' Whilst I heard that there are a minority who maintain that OBPI caused by propulsive forces of labour is an unproven hypothesis, Mr Jarvis [expert for the Claimant], while essentially maintaining that position, accepted in cross-examination that, where OBPI has occurred during birth to a posterior shoulder, it is more likely that this is due to the propulsive forces of labour, and in the absence of forceps or ventouse delivery it is overwhelmingly likely not to be the fault of the delivery attendants". The Judge went on to say, "There was, in any event, no expert evidence in this case or cited in the literature that could support a finding that the actions of the birth attendants could at any stage cause injury to the posterior shoulder of a baby delivered in the manner Jack was delivered. Neither did Mr Jarvis, the Claimant's expert, suggest that any such injury could be so caused".
Ultimately the Judge rejected Mrs Beggs' evidence of seeing Jack in LOA position as his head was being delivered, albeit that her evidence was "honestly given in good faith". Such evidence was anatomically incorrect as the head would have been direct occipito anterior until restitution (ie.. neither left nor right) and it must have been hard for a 5 ft 2 woman with a large gravid uterus to peer between her legs in lithotomy at all. He praised the "impressive clarity" of the registrar, the "good quality" notes and the "clear and detailed" evidence of the midwife "unshaken in cross-examination".
It will no longer be good enough for Claimant lawyers simply to marginalise Ellis or Rashid as one-off decisions, or for their medical experts to rubbish the propulsive forces theory (or the literature, or experts advancing it). The body of supporting evidence is growing, including OBPI following caesarean sections, hidden pregnancies without birth attendants present and a video of a hospital delivery 'untouched by any hand'. Recognition of maternal propulsive forces as a cause of OBPI by the RCOG in the December 2005 guidance is particularly important and hard to refute. Claimant experts who maintain 10-15 year old dogma are consigned to a minority view and risk censure from the Court if they stray into becoming advocates. Whilst propulsive force is probably not the prime cause of OBPI it will probably be a significant minority and only time will tell how much so. It is not surprising that the number of proven cases is not yet very large. If the universally accepted view until 10-15 years ago was that OBPI was always associated with obstetric traction then there are probably cases wrongly recorded as shoulder dystocia then because no one challenged this assumption. The supportive data is mainly recent but is in respected, peer reviewed journals whereas the chief critics have mainly published their denials in Clinical Risk or internet articles.
Once natural propulsive forces are accepted as a plausible mechanism of OBPI, then the maxim res ipsa loquitur cannot apply, but this defence is not restricted to posterior arm cases like the present one or Rashid. Ellis involved the anterior arm. There is no maximum safe traction force below which OBPI does not occur and note-keeping buttressed by the evidence of birth attendants' at trial will win or lose cases. Causation experts cannot properly tell the Court whether the relevant stretching of the brachial plexus was due to traction applied by the birth attendant, or was a distraction force due to natural forces. However, where birth attendants have documented the presentation and the injured arm is posterior, the Claimant's case will face a singularly difficult challenge and funders should beware that chances of success must be very low. The only realistically viable cause for a posterior arm injury is now that the posterior shoulder became impacted on the sacral promontory at an earlier stage and that the natural propulsive forces of labour caused stretching of the brachial plexus as the shoulders eventually pushed past it into the birth canal. Mr Jarvis could not identify any other mechanism at trial if the injured arm was posterior and it cannot have been attributable to the birth attendant. Defendants facing these cases are assisted by published medical literature that midwives assess the presentation correctly about 80% of the time. Mr Jarvis argued that LOA is more common, but had to acknowledge the force of this and it will not be easy for Claimants to get around the notes if the injured arm was posterior. The Judge also accepted that the good CTG trace was another support for the Defendant's case that presentation was ROA as it suggests the transducer was probably placed correctly at the fetus' back (the very reason for a midwife wanting to assess the presentation at all).
Defendants can face Erb's Palsy cases with more optimism than has always been the case and it should not just be assumed that birth attendants failed to adopt the correct shoulder dystocia drill when faced with this devastating emergency. Training and awareness have improved considerably and they deserve more credit than that. Our April 2007 edition of Claims-on-line published an article suggesting that the tide was turning against the assumption that Erb's Palsy injuries are almost inevitably the result of excess traction or substandard care by the birth attendants ("Erb's Palsy: Is the tide turning?"). We also listed risk management guidance for reducing the incidence of shoulder dystocia and tips for increasing the prospect of your Trust defending a claim. Jo Lloyd from this firm also co-authored a paper with Tim Draycott, Dr Carolyn Sanders, Dr Joanna Crofts as a 'Template for reviewing the strength of evidence for obstetric brachial plexus injury in clinical negligence claims' in Clinical Risk 2008; 14: 96-100 that is also recommended reading.