Abstract
Jack Beggs was born on 21 July 2002. He suffered an injury to his right brachial plexus at birth (OBPI) which, despite surgery, will mean that he will always have very limited use of his right hand and arm. It was alleged that the attending midwife applied improper traction to the baby's head in order to deliver the shoulders, thus causing the injury.
On behalf of the Claimant, it was maintained that Jack was delivered in the left occipito anterior position (LOA), i.e. the head was delivered first with the back of the head facing towards the mother's left thigh. That would have meant that the right shoulder was uppermost. The Trust, relying upon the contemporary notes, claimed that Jack's presentation was right occipito anterior (ROA), i.e. he was facing the other way, with his left shoulder uppermost.
The judge noted that during the course of birth, the baby's lower or posterior shoulder had to pass the mother's sacral promontory. By this stage the head has not emerged, so if the shoulder is obstructed it is only the mother's uterine contractions which can propel the baby past this point, unless there is a high forceps delivery (which did not happen in this case). When the head finally delivers, the upper or anterior shoulder still has to be brought out below the symphysis pubis. It is at this stage that improper traction by the birth attendant can result in brachial plexus injury.
When proceedings were commenced in 2006, an ROA presentation was conceded. The Trust applied for summary judgment but failed. However, in October 2007, the Claimant's solicitors stated that Mrs Beggs had recalled at conference that when Jack was born she could see his right ear and cheek. Accordingly, an LOA presentation was now alleged.
Judge Hawkesworth heard expert evidence from two obstetricians: Mr Jarvis for Jack and Mr Tufnell for the Trust. He stated that these experts revealed a change in the view of the profession regarding OBPI over the past 10–15 years. Formerly, the universal opinion had been that OBPI was caused by the efforts of obstetric staff to deliver a fetus that is stuck. Now, the consensus view was summarized in a December 2005 guideline from the Royal College of Obstetricians and Gynaecologists:
Not all injuries are due to excess traction … and there is now a significant body of evidence that maternal propulsive force may contribute to some of these injuries.
Mrs Beggs was slightly built and slim, some 5 feet 2 inches tall. Jack was a large baby weighing 10 pounds, 2 ounces. The antenatal reports were unremarkable, but at 35 weeks the baby's lie was noted to be ROA.
The mother was asked how it was that she came to recall, so long after the birth, which way Jack's head was facing. She was unable to explain this, save that there was much commotion and stress at the time of the delivery.
Notes of the delivery had been written by the attendants within minutes of the events described. They recorded the presentation as ROA.
Midwife Cabero, who gave evidence by video link from Spain, performed the delivery. Dr Majure, an obstetric registrar, was also present as was a more senior midwife. Midwife Cabero applied ‘routine traction’, but the trunk did not deliver. Supra-pubic pressure was applied by the registrar, following which the baby delivered easily. Mr Cabero denied exerting excessive force.
Held: in every respect where Mrs Beggs' recollection differed from that of the birth attendants, their evidence was the more credible, supported as it was by the contemporary evidence. It was common ground that, when the baby's head first appeared, only its back was visible: that made it difficult, if not impossible, to accept mother's evidence of seeing Jack's ear and cheek.
As to the mechanism of an OBPI in a posterior shoulder, Mr Tufnell for the Trust accepted that in the majority of cases the propulsive forces of labour were not sufficient to cause damage to the brachial plexus. However, in the present case, feto-maternal disproportion was relevant. He did not accept that an OBPI in the posterior shoulder could be caused after delivery of the baby's head. He cited a number of papers which refer to causation not being due to the actions of the birth attendants.
In the event, no expert evidence given or cited supported 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 in which Jack was delivered. Mr Giddins, an orthopaedic surgeon called by the Trust, accepted that his ‘propulsive forces’ explanation for Jack's injury involved a degree of speculation. However, in the case of a posterior shoulder there was no other explanation.
In conclusion, this injury was not suffered by reason of the actions of the birth attendants. The mother's account, while honestly given in good faith, was not an accurate or reliable recollection of Jack's position as he was delivered. Accordingly, there must be judgment in favour of the Defendants.
David Thompson (instructed by Pattinson and Brewer) appeared for the Claimant. Andrew Post (instructed by Bevan Brittan) appeared for the Trust.
Comment
OBPI claims continue to excite controversy among clinicians and lawyers. The ‘propulsive forces of labour’ theory is gaining ground, particularly (as here) when damage is to the posterior shoulder. However, a detailed critique of this view may be found in Clinical Risk by our Founding Editor, Mr Roger Clements (Clinical Risk 2006; 12: 3–11). In the present case, even the Claimant's obstetric expert accepted that in posterior shoulder cases, injury is more likely than not to be due to propulsive forces, especially in the absence of assisted delivery. No doubt we shall see more court rulings on this issue before long, whether or not there are any further (and hopefully more definitive) academic studies.