Abstract
Jack Jones suffers from cerebral palsy and severe developmental disabilities, caused by starvation of oxygen to the brain at his birth on 21 July 1992. While his head was delivered normally, his shoulders did not swiftly follow, the anterior being lodged behind his mother's pubic bone. This shoulder dystocia was an obstetric emergency, leading to the cord being compressed. The remainder of Jack's body was not delivered until 15 minutes later, and it was during the intervening period that deprivation of oxygen occurred.
His mother had two previous children, both being born at the same hospital as Jack. The second child, Rebecca, had slight shoulder dystocia when she was born in 1985, but the midwife had been able to resolve this by placing Mrs Jones on her left side.
When she was pregnant with Jack, Mrs Jones was first seen by NHS staff at 16 weeks. There was no reference in the relevant notes to shoulder dystocia having occurred in the course of Rebecca's birth, which led the judge to assume that Mrs Jones had not mentioned this to the midwife. Mrs Jones was 5 feet tall and weighed 99 kilos (roughly 15.5 stone). She had a BMI of 42.6 (the clinical threshold for obesity is a BMI of 30).
On 21 July 1992, Mrs Jones had a ‘show’ at about 05:30 and was taken to the GP unit of Hope Hospital, Salford at 09:00. Standard tests were conducted by the midwives, and at 09:30 it was recorded: ‘feels big baby’. Nothing further of note occurred until about 16:00 when the cervix was noted to be 8 cm dilated. The membranes were bulging and were ruptured with a hook. Meconium was noted so Mrs Jones was transferred from the GP unit to the main delivery unit at the hospital, where she arrived at 16:30. Midwife Shepherd listened to the fetal heart and took the maternal pulse. She could not obtain a CTG trace owing to the mother's size and instead conducted a vaginal examination and placed a scalp electrode on the fetal skull.
At 17:32, midwife Shepherd became concerned that the cord was presenting with the top of the baby's head. Fortunately, the consultant on duty, Dr Railton and the senior registrar, Dr Polson, were conducting their ward round, and they came into the delivery room. Dr Railton had been a consultant in obstetrics and gynaecology since August 1989, and continued to hold that position at the date of trial. Dr Polson had been a senior registrar for 18 months and was to become a consultant one year later.
Dr Polson conducted a vaginal examination and concluded that what midwife Shepherd thought was the cord was in fact a swollen lip of the cervix, which he pushed away. A midwife delivered the head with the next contraction at 17:27, but almost immediately there were two signs of potential trouble: thick folds on the baby's neck, and the fact that the neck slightly retracted into the vagina, a phenomenon known as ‘turtling’. This was indicative of possible shoulder dystocia.
The consultant and registrar stayed in the delivery room. Mrs Jones was placed in the lithotomy position and Dr Polson cut an episiotomy. One of the midwives set up an infusion of syntocinon and another midwife applied supra-pubic pressure. At the same time, Dr Polson applied traction to the baby's head. However, these measures did not achieve birth.
Dr Polson then instructed two midwives to flex the mother's legs back as far as possible into what is now known as the ‘McRoberts position’, although that term was not in general use in 1992. Unfortunately, this likewise did not achieve birth.
Dr Polson then attempted to insert his hand into the vagina to swing around the posterior arm, but he found that his hands were too large to do this. He then attempted to break the baby's clavicle with his fingers so as to reduce the breadth of the shoulders, but this attempt also failed. Finally, Dr Railton inserted her fingers in front of the baby's posterior shoulder. Dr Polson did likewise in respect of the anterior shoulder, and between them they rotated the baby's body by 180 degrees. This had a corkscrew effect and allowed the shoulders to be delivered.
It was alleged on Jack's behalf: (1) that the mother should have been advised, as part of her antenatal care, of the risk of shoulder dystocia and told of the possibility of having a Caesarean section; and (2) that the attending doctors took too long to achieve the birth, and that had they proceeded appropriately, Jack would have been less severely injured.
Alleged negligence in antenatal care
It was claimed that Mrs Jones should have been referred to a consultant at about 36 weeks because a number of factors suggested a risk of shoulder dystocia. These included: the previous incident in the course of Rebecca's birth; the mother's weight; the fact that this was the third child; and size of previous babies. It was claimed that if there had been a consultation with the consultant, i.e. Dr Railton, Mrs Jones would have chosen Caesarean section.
The Health Authority accepted that the midwife ought to have had access to the mother's previous maternal records, which included the reference to slight shoulder dystocia during Rebecca's birth. However, they denied that the outcome would have been any different.
Dr Railton said that if there had been a consultation, she would not have organized a glucose tolerance test for diabetes, as the Claimant's expert obstetrician, Mr Julian Woolfson, had maintained should have occurred. Furthermore, she would not have scanned for fetal size, as scanning was very unreliable in 1992. However, Dr Railton would have taken account of the previous history but would not have mentioned elective Caesarean section as an option. She would have placed the risk of a repetition of shoulder dystocia at 10% or lower. Overall, having regard to the risks associated with Caesarean section, particularly in an overweight patient such as Mrs Jones, she would have recommended vaginal delivery.
Mr Derek Tuffnell, the expert obstetrician called by the Health Authority, agreed with Dr Railton that ultrasound scanning was too unreliable to be a worthwhile indicator of a baby's weight in 1992. He also agreed with the advice which Dr Railton would have given. He pointed to the current view of the RCOG that ‘risk assessments for the prediction of shoulder dystocia are insufficiently predictive to allow prevention of the large majority of cases’ and ‘shoulder dystocia is, therefore, a largely unpredictable and unpreventable event’.
Held: there was no negligence in failing to conduct an ultrasound scan at 36 weeks. Mr Woolfson did not produce any literature or research to support his view that this should have been done. A reasonable body of medical opinion would not have performed such a scan. Nevertheless, in this case there was a significant risk associated with vaginal birth and had there been a consultation with Dr Railton, she would have been obliged to refer to the alternative of a Caesarean section.
Dr Railton said that she would have advised Mrs Jones to continue with a vaginal birth. That advice would not have been negligent. The evidence of Mr Tuffnell, that such advice would have been reasonable and appropriate, was to be accepted.
Causation
The evidence of Mrs Jones, was that she would have opted for a Caesarean. That was disputed by the Defendants. She was a Jehovah's Witness, and had she opted for a Caesarean that would have brought a much higher risk of bleeding.
Mr Woolfson agreed that in 1992, doctors tended to be more paternalistic than in 2010. Mr Tuffnell said that as a matter of fact, patients usually did follow doctors' advice in 1992. That evidence would also be accepted.
Mrs Jones maintained that she had not been a practising Witness since the age of 13, but shortly after Jack's birth, there was a note in her own handwriting: ‘I do not want my child to receive blood or blood products’. Accordingly, her evidence that she would have elected to proceed to Caesarean, could not be accepted. This was not a question of her being dishonest, but no doubt was said in hindsight. On the balance of probabilities, she would not have agreed to a Caesarean and therefore the claim could not succeed on causation.
Alleged negligence during the course of delivery
Dr Polson should have proceeded straight to the McRoberts position and avoided lithotomy
The McRoberts position was first described in an American paper in 1983. Both Drs Polson and Railton were aware of this manoeuvre in 1992, but it was not widely known among midwives. Miles, the standard textbook for midwives, did not mention McRoberts at this time.
In evidence, Dr Polson said that lithotomy had always been successful in his experience before. Furthermore, time was very short. Mr Tuffnell accepted that it was recognized today that McRoberts was superior to lithotomy, but it only became a standard approach after about 1996.
Accordingly, Dr Polson was not negligent in this regard. It was not unreasonable for him to proceed with what was still the standard procedure.
There should have been no more than one attempt at traction
Drs Railton and Polson had both been candid enough to accept that with hindsight, it would have been preferable to go straight to McRoberts. However, this was an emergency and it was not unreasonable to proceed with what was still the standard next procedure at the time, rather than explain another alternative to the midwives.
Setting up syntocinon wasted time
This was undertaken by the midwives rather than the doctors, and did not divert the latter from the other steps they were taking. Accordingly, there was no causative link.
Dr Railton, the consultant, should have taken over
There was no evidence that any of the attempts at external manipulation would have had any better prospect of success if they had been performed by Dr Railton. Mr Woolfson had modified his position in the course of cross-examination on this subject. It had to be remembered that Dr Polson was a senior registrar, and not far short of becoming a consultant himself. It was not unreasonable for Dr Railton to allow him to make the first attempts at internal manipulation. It was impossible to find that there had been negligence in this regard.
Taking 15 minutes to deliver the body was too long
In cross-examination, Mr Woolfson agreed that all of the procedures which were undertaken were conventional, appropriate and in the correct sequence. His criticism was of the overall time which it took to achieve delivery. However, there was no evidence that the doctors were not trying as hard as they could to complete delivery expeditiously. As Mr Tuffnell pointed out, it was not even in the current RCOG guidelines that one should address shoulder dystocia by moving immediately to internal manipulation. Not every case of shoulder dystocia is accompanied by asphyxia. The McRoberts manoeuvre is desirable because it avoids a high risk of brachial plexus and other injuries which can result from internal manipulation. Accordingly, this allegation could also be rejected.
Overall, the clinicians here had been presented with an obstetric nightmare. Dr Railton had delivered many thousands of babies and this was the worst case of shoulder dystocia she had ever come across. There had been no negligence either by her or by Dr Polson. Consequently, the claim would be dismissed.
Adrian Whitfield QC and Michael Mylonas (instructed by the Roland Partnership) appeared for the Claimant. Stephen Miller QC (instructed by Hempsons) appeared for the Health Authority.
Comment
This was a particularly interesting case. In relation to the antenatal position, the judge considered the factual evidence very carefully and concluded that even though it had been negligent not to have referred the mother to a consultant, that would not have made a difference because the consultant would have recommended vaginal delivery. The fact that that mother was a Jehovah's Witness, and had made a specific request after birth that Jack should not have a blood transfusion, was good evidence that she would not have elected to proceed to Caesarean, had she been given that choice, owing to the increased risk of blood loss in such a procedure. In relation to the birth itself, whilst the clinicians had attempted a number of different procedures before Jack's body was delivered, they had proceeded in accordance with a reasonable body of professional opinion at the time. The McRoberts manoeuvre was relatively new in 1992 and it was reasonable not to have chosen it earlier in the sequence because of the unfamiliarity of the midwives. Furthermore, attempts at internal manipulation were very much the last resort because of the enhanced risk of injury to the child. It is a matter for speculation whether a similar sequence in 2010 would result in a finding of negligence, but arguably it would not, given the current RCOG guidelines.